(WXYZ) — The Michigan State Police say more than three thousand cases involving alleged marijuana impairment could have been false positives. Last week, the MSP Forensic Science Division announced they were halting all testing of marijuana drug samples due to the possibility that the tests were positive for CBD, rather than just THC. The state police warned prosecutors not to rely on the THC toxicology results until they could learn more about the alleged problems in the testing.
THC is the psychoactive compound in marijuana. CBD is a chemical found in marijuana that does not produce a high, and CBD has not been considered a controlled substance in Michigan since March 28, 2019.
In a letter sent to prosecutors across the state today, MSP Forensic Science Division Director Jeffrey Nye said approximately 3,250 THC cases since March 28, 2019 could be impacted. 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.”
According to Nye’s letter, the identified 3,250 cases “did not have other drugs within the scope of analysis and/or alcohol detected above the 0.08% legal threshold.
Nye further instructs prosecutors and police, “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.”
The lab keeps blood samples for at least two years. They will be retaining all samples so further testing can be conducted.
“I mean, this is a nightmare for prosecutors,” said defense Attorney Michael Komorn, who specializes in marijuana cases.
“Let's understand that they have all these convictions. Some people may be in prison, jail. It's affected people's driving records, inability to get a license, return of a license or, reestablish their license privileges,” said Komorn.
Today when he got the notice from the lab Wednesday, Komorn was on his way to Bay City to argue that a client should have his marijuana impairment conviction said aside.
“For 20 years, this lab has come to court and testified that they do not produce false positives. This document would contradict every single testimony suggesting that they don't produce false positives,” said Komorn.
Michigan State Police Col. Joe Gasper released a statement today – saying, “The MSP/FSD [Forensic Science Division] remains committed to providing the highest standard of forensic services to the criminal justice community.”
Gasper also said they have reported this issue to their accrediting agency, and they will be preserving all blood samples for re-analysis.
Komorn says an outside agency needs to investigate the lab.
“No jury should see a document that is evidence that's been used to convict a person that is false or falsely reporting something or that they can't say with any scientific certainty that it is accurate. They've been doing that for a long time. That's the problem,” said Komorn.
Wayne County Prosecutor Kym Worthy also received the notice from the state police Wednesday.
“I am notifying my entire staff and other law enforcement partners of the issue that MSP related to their testing and THC and CBD. As a result, I will be sending the letter to my entire staff, the Neighborhood Defender Service (NDS) and the President of the Wayne County Criminal Defense Bar in Wayne County, Wayne County Circuit Court Chief Judge Timothy Kenny and Presiding Judge Prentis Edwards of the Criminal Division. I will also send the letter to 36th District Court Chief Judge William McConico and Presiding Judge Kenneth King and the out-county courts. I am doing this because it is important for everyone that could possibly be affected by this to be informed,” said Prosecutor Kym Worthy.
Michigan State Police issued the following statement regarding the testing: