State Police: Faulty marijuana testing could impact 3,000-plus cases

Mike Martindale Kara Berg
The Detroit News

More than 3,000 cases involving alleged marijuana impairment in traffic stops since March 2019 could involve tests showing “false positives” from the state crime laboratory, Michigan State Police leaders told county prosecutors Wednesday. 

The State Police Forensic Science Division announced last week that it was halting all marijuana blood testing after discovering that its methods may have triggered false positives after failing to distinguish between THC, the ingredient in marijuana that produces a high, and the non-psychoactive chemical compound, CBD. CBD has been legal in Michigan since March 2019.

MSP Forensic Science Division director Jeffrey Nye in a letter to prosecutors said about 3,250 THC cases since March 28, 2019, could be affected. The cases identified have an “alleged violation (that) is based on the finding of THC alone and there is insufficient evidence of impairment, intoxication or recent use of marihuana to otherwise support the charged offense.”

Nye told prosecutors the 3,250 cases “did not have other drugs within the scope of analysis and/or alcohol detected above the 0.08% legal threshold.”

“If you currently have a positive THC confirmation report issued by the laboratory, and you do not have other evidence of impairment, such as driving behavior, individual observations, results of Standardized Field Sobriety Tests, Drug Recognition Expert evaluations, or other indicators of THC, please consider the alternative explanation that the sample may be positive for CBD alone,” Nye said.

Nye said that state police and the crime lab would share the cases at issue directly with the prosecutor involved in the cases as soon as possible so “additional review can be done as to the potential impact to these cases.”

The announcement could have wide-ranging implications.

Testing methods by state police have raised concerns over the years.

East Lansing-based attorney Mike Nichols said he and other lawyers who often handle drunken-driving cases have argued in many courts that using the MSP testing is a “defective method.” He likened it to a drunken-driving charge without alcohol.

“Convictions in these types of cases have all kinds of impact — possible 93-day jail sentences, jeopardizing jobs and driving licenses, whether you can rent a car or lose company car privileges,” Nichols said. “CBD has less effect on a driver than a cup of coffee.”

Nichols said he believes the number of such convictions are much greater than the 3,000-plus claimed by state police. He said he is curious how and when the tests came under scrutiny.

Nichols also said dismissing cases and convictions is not only appropriate but something that should not be up to prosecutors, as mentioned in the letter.

“I would hope defense attorneys would be notified of clients who had been wrongfully convicted but also to help other convicted persons,” Nichols said.

Prosecutors already are reviewing the issue.

Wayne County Prosecutor Kym Worthy said Wednesday she was notifying her staff and “other law enforcement partners of the issue” including defense attorneys and judges.

“I am doing this because it is important for everyone that could possibly be affected by this to be informed,” Worthy said.

Nichols posted a letter on his Facebook page from Ingham County Prosecutor Carol Siemon in which she said her office had reviewed "driving with a presence of a controlled substance case" since January 2020 but did not find any pending cases that fit the criteria of solely being charged as driving while impaired by marijuana, adding "although we will continue to keep an eye out for these types of cases."

"The vast majority of our pending 'drugged driving' cases involve narcotic drugs like cocaine, methamphetamines and opiates, and likely not impacted by this difficulty distinguishing between THC and CBD," Siemon said.

In a separate statement released Wednesday, Col. Joe Gasper, director of the state police, said state police and the Forensic Science Division have “halted all the THC technology testing due to a technical issue” in as CBD, may be converted to THC during the testing process, “leading to potentially inaccurate test results.”

Gasper said when the issue was brought to the attention of state police on Aug. 19, it began a “significant evaluation of our testing process.”

Gasper said notification of findings were made to the Prosecuting Attorneys Association of Michigan on Aug. 25 “to prevent these reports from being used in any current or pending court cases.”

In separate actions, Gasper said the state police have:

►Reported the issue to its accrediting body, ANSI National Accreditation Board, and requested an independent review.

►Temporarily halted the disposal of blood samples in case further analysis is needed.

►Started validating a new cannabinoid confirmatory method that will be able to distinguish CBD from THC. 

►Started the process to establish a contract with a private, accredited laboratory for processing THC samples in the interim before the new method is validated.

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