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Monday, July 15, 2024
By Michael Nichols
Categories: Drugged Driving
“SHE WAS SO IMPAIRED BY HER USE OF MARIJUANA THAT SHE KILLED HER HUSBAND …" That was the prosecutor's mantra: EXCEPT THAT WAS NOT TRUE.
This is a story about Karolyn. Karolyn is a 28-year-old Marine Corps veteran. Karolyn was medically discharged from the “Corps” at 20 years old because a 500-pound bomb fell on her during a training exercise. It did not denotate, but it hurt. It literally concussed her entire body.
The Veterans Administration sent Karolyn’s attorneys a letter that lists over two dozen – more than 24 permanent impairments that she suffers and declaring her totally and completely disabled. Karolyn eventually became a medical marijuana patient. Michigan’s medical marijuana program allows her to enjoy some pain relief. Karolyn uses marijuana to receive the therapeutic benefits without getting “stoned.”
Karolyn’s husband, David, was killed in a car accident that occurred when the couple was driving to work in Northern Michigan. Knowing everything above, the elected Ostego County Prosecutor still chose to prosecute her beyond the fullest extent of the law. The prosecutor charged her with two felonies, punishable by up to 15 years each. If she were to be convicted, she would have faced “sentencing guidelines” of 43-86 months for a minimum term. That’s right – she was probably going to prison if convicted.
The National Highway Traffic Safety Administration (NHTSA) is the primary source of training for police officers on detecting drivers who are impaired by controlled substances including alcohol and marijuana. There are several “pre-exit” cues that an officer is looking-for during the initial encounter between an officer and a driver. This would be the stage of a case at which the officer is typically at the driver’s side of a car and making contact with the driver.
There was a trooper who arrived at the hospital at around 11:15am and spent the next hour-and-a-half with Karolyn. She told him that she is a medical marijuana patient and, while she did not take her anxiety medication that day, she did take her medical marijuana, sharing a small bowl or “bong” with her now-dead husband.
The Michigan State Police trooper who spent the most time with Karolyn during the hours after the accident preserved NOTHING in his police report consistent with the signs of intoxication. We made a posterboard to show that none of the NHTSA pre-exit cues were present when the trooper met with our heroine.
This outcome never would have happened if it were not for my involvement with the National College for DUI Defense (the college). No way. A friend of mine who has a practice in Traverse City, took over a case from a dump truck of a lawyer. This is one of the greatest cases of my life and I’ll take it to my grave with a big smile on my face.
The basics: Karolyn was driving on March 31, 2022 at approximately 8 a.m. on a fairly rural road which has a couple of saddles, so they are big hills and dips from glacial receding thousands of years ago. It’s early spring in Michigan so that means it can be winter at 40 degrees or spring at 60 degrees at any given hour. Where this happened is just beautiful country but obviously with the change in elevation you get different temperatures and different surface conditions even over the course of a quarter of a mile. She was trying to pass a car that had slowed down in the right-hand lane. (This is a one-lane road each way going east and west.)
She lost control trying to pass another car on some ice. She could not get control back but did everything that you were supposed to do: took her foot off the gas, did not brake, and just tried to steer into the skid. She could not correct. She wanted to get back over into the right lane, but the other car would not speed up or slow down. So that was not an option.
She then tried to find a spot on the left shoulder and just bring the truck that she was driving to a glide/stop but she got sucked in by some slush that was remaining on the road from a snowstorm a few days prior. She careened into a seven-foot-deep gully at about thirty to 35 miles per hour, caught a small tree that then rotated their truck and then hit a bigger tree on the passenger side and her passenger, her husband basically window shaded. His C-1 fractured and that's probably what was fatal, although he had several other injuries.
This is the kind of case that you feel like it is your life's journey to have the privilege to be a participant in and there are a lot of “why’s”. First, the obvious one, that a Marine corps veteran, who suffered a serious injury while serving our country and who is now a medical marijuana patient was prosecuted for having the unfortunate luck of hitting black ice on an early Michigan spring morning, and losing control, and her husband died as a result of the crash. Then, she was charged by the county Prosecutor for the sole reason that he hates marijuana.
The Prosecutor stood up during closing, and as he was getting into his argument said “we give you facts the defense gives you stories”. I never object during closing unless it's absolutely, positively, 110 % necessary and I did not intend to object at that moment but, Judge Hunter jumped right in and took him to task. While the judge gave co -counsel and I a hard time because we were papering and peppering him with Motions and Briefs, arguing about the Prosecutor's failure to comply with the court rules and the court's scheduling order, it went both ways, period. The judge shut down the state’s lab supervisor from trying to testify about the psychomotor effects of marijuana on humans and a speculative retrograde extrapolation.
The judge also let the jurors ask questions, which is allowed under Michigan’s Court rules, of the witnesses.
I learned a lot about how people feel about marijuana. A lot of people my generation (mid 50’s to late 50’s) are still not educated in the slightest about marijuana or medical marijuana.
That was fascinating to me. The young jurors were 100% on our side and I was concerned that they would be sheep with the older jurors in deliberations. We had an insurance agent, a teacher, a mechanic, a retired bus driver, but also a medical marijuana patient or former patient who looked like she was in her late 40s. Those were the jobs/careers for the “older” jurors.
The whole fight in the trial was over whether the road conditions were foreseeable to Karolyn. However, I told the jury in closing that even if they found that she was driving too fast for conditions, that’s still not guilty because that’s just carelessness. They have to show willful and wanton disregard for the safety of people or property. I equated it to a a “PLAIN AND STRONG LIKELIHOOD OF DEATH OR SERIOUS BODILY HARM” (People v Goecke).
Dr. Jimmie Valentine of Mississippi was our expert on the disposition of THC (marijuana) in the human body. Dr. Valentine was great at breaking out the polymodal nature of marijuana in distribution and elimination in the human body. The jurors had lots of questions. He testified after Geoff French. Dr. Valentine went Wednesday morning and Geoff French went Tuesday night. A great thing about Dr. Valentine is that he was involved in some of the very first studies that had special approval from the United States Attorney General in 1974 that could not correlate marijuana use with impaired driving function.
A special note here about Electronic Data Recorder (EDR) data: it can be very misleading, and it was used in a very misleading fashion by the Prosecutor. The EDR is a bit like a blackbox in an airplane.
It had the client going just a tick under 70 miles per hour at the five-second mark. The five-second mark represents five seconds before the airbags are deployed. The data captures or the instrument captures five seconds of data prior to the moment, with just a little bit of uncertainty from when the airbags are deployed. That is my understanding of EDR data.
I tried the first criminal case with a black box in the state 20 some years ago. It can NOW tell you things like steering, so if the person steered counterclockwise, you'll see a negative sign before the number and if the person steered clockwise, it will show you a positive value in the higher the number, the more, the turn.
It will also show you the rotation of the wheels, which was important here because the client's version was that she hit black ice and lost control. Dr. Andreas Stoltz, a physicist who we called, was able to corroborate that by explaining to the jury in a very clear and cogent manner that the data showed that it looked like the front tires lost control because they stopped rotating pretty much while the rear tires continued to rotate and that's when she lost it on the black ice. He described the wheel turn data – also consistent with the client’s testimony about trying to turn into the skid (just like you’re trained).
He also had her going totally off the road based on the rotation of the tires and he found one mark that none of the cops found that was a witness mark of her completely leaving the left lane going into the gully where they hit a couple of trees and her husband met his ultimate demise in the passenger seat.
The Prosecutor tried to use the EDR data to say that Ms. Riggs told the cops that she was doing 60 miles per hour, but the EDR data showed her going 70 miles per hour. "I do not think she was lying. I just think that she was so impaired by her marijuana that her judgment was impaired, and she didn't know how fast she was really going." That is what he said in closing. I try to keep my closings as short as I can and that was one of the points that I obviously covered. I do not remember exactly what I said but I said that what was argued by the government was a mischaracterization of objective evidence.
Geoffery French: So, throughout some pretrial litigation, I convinced the Judge to hold that French testify ONLY to the lab's procedures. The Prosecutor's concern was that her first blood analysis in the spring of 2022 that showed seven nanograms of Delta 9 THC and something along the order of 86 nanograms of the inactive metabolite that was done at the time where the lab's method was literally converting CBD into THC based on the reagent that it was using in the derivatization process. You may remember – the state completely shut marijuana testing down and sent their blood to NMS labs.
They then analyzed this blood a second time after they validated the new method with liquid chromatography, mass spectrometry, mass /mass spectrometry. That produced a 7.3 nanogram per milliliter result but interference precluded them from reporting out carboxy or any other analyte. I got involved at the point that Rob was trying to get ready for a Daubert hearing to challenge the admissibility of the analyses, and I was giving him some feedback on his data and Dr. Stolz's testimony.
So, I think the prosecutor believed we were going to attack the reliability of the test. I think he also wanted to sneak in testimony about human performance and extrapolation via the lab supervisor and he telegraphed that when he responded to one of our pretrial motions.
Things were going so well. I did not ask either of the lab analysts who testified to the first and second report respectively. The whole strategy was “shoulder shrug - hey jury we told you she admitted to using that morning and that she was a patient, who cares about the number.”
I basically did not ask Mr. French any questions except when he testified during his description of Delta 9 THC “that's the impairing effect, or that's what gives you that feeling of a high … without that no one would ever use, grow or sell marijuana.” On cross I only asked him one thing and that was, “is it your testimony to this jury that the only reason people use marijuana is to get stoned?” Of course, I asked that because I knew we had a one-time patient in the jury.
But when the jurors asked questions about things like how long THC stays in the human body and if the tests show how long ago she used, I objected but the Judge let him answer and that opened up the back door for him to sneak attack in all of his nonsense regarding the half-life of marijuana and retrograde extrapolation. The Judge let the lawyers do cross any time jurors had questions and the witness answered.
I had a transcript from the Daubert hearing in which French admitted as follows “you know, when you test for THC, it is proof of recent use. It does not prove intoxication. It is proof of use.” I simply laid the foundation and elicited that from him and then I put it on a poster board to hold up to the jury. It's a page 101 of the Daubert hearing transcript from September 13th. The client gave us permission to talk about the case and even use her name. She is very grateful.
This was a pretty amazing case, and I am positive that I would never have been able to play the role that I did to help this Marine Corps veteran without my involvement since 2007 in the National College for DUI Defense (NCDD). I am feeling lots of gratitude and I could not be happier for this particular client. I hate to say it, but I am pleased as punch for the lesson that I hope this Prosecutor learns about bringing charges and letting hubris dictate what to charge in a particular case. Had he charged her with moving violation causing death, that would have been a whole different situation.