M. Live reports
The Michigan State Police Crime lab on Thursday, Aug. 25, notified prosecutors across the state that there’s a problem with marijuana testing in blood.
“The MSP Forensic Science Division is examining a discrepancy discovered earlier this week in THC blood testing results in which the presence of CBD in a blood sample may have led to a positive result for THC,” MSP spokesperson Shanon Banner said in an email sent to MLive Friday. “Out of an abundance of caution (MSP) today notified the Prosecuting Attorney’s Association of Michigan that we are immediately halting the processing of all THC blood samples as we work to learn more and/or until we can institute another validated method of testing to ensure accuracy.”
The toxicology test confuses CBD, which does not induce a high, with THC, the psychoactive compound in marijuana, according to a verbal notice provided to the Prosecuting Attorneys Association of Michigan (PAAM) President and Eaton County Prosecutor Doug Lloyd.
CBD is not a controlled substance.
“We were alerted by the MSP Crime Lab that there is likely an issue with toxicology screens for blood tests for marijuana results,” said an email sent to prosecutors across the state by prosecutors association Executive Director Cheri L. Bruinsma on Thursday. “They very recently learned that the test is unable to distinguish between THC and CBD. They are working to understand the issue and scope of the problem. They expect to have additional information in the next few weeks. In the meantime, if you have a case that relies on a THC toxicology screening, you should not rely on that result.”
It’s unknown how many pending cases may be impacted by the testing problem, how long the issue has persisted or if it could result in past convictions that relied on marijuana blood testing being overturned.
Lloyd said he asked his assistant prosecutors to place on hold any cases that rely heavily on marijuana blood testing.
Jackson County Prosecutor Jerry Jarzynka sent a memo informing judges and attorneys in his jurisdiction of the problem. “In the meantime, our office will not be able to rely on MSP Crime Lab THC toxicology screening,” he wrote.
Wayne County Prosecutor Kym Worthy’s Office on Friday also notified attorneys and judges within her jurisdiction. “It is important for everyone that could possibly be affected by this to be informed,” she said.
Michael Komorn, a Farmington Hills-based attorney who also specializes in marijuana law and criminal defense, said the issue could call into questions thousands of convictions across the state, depending on how long the problem has persisted.
He’s calling for a full independent investigation into the state police crime lab and the creation of a lab that operates independently from the police force.
Komorn said blood test findings for marijuana are frequently used as a basis to prosecute driving offenses, especially when alcohol isn’t detected, including crashes that result in serious injury or death.
“I think that it’s time to get a new lab,” Komorn said. “Because the procedures and protocols that are being used here, if they’re wrong and unscientific and they’ve been convicting people wrongly because their tests are wrong, I think a criminal investigation should be opened. I think people should be held accountable.”
Komorn said there are cases involving prison sentences or jail time for defendants convicted of causing fatal or injury accidents while intoxicated, based heavily on test data that he said is now in question.
State police had not provided any written communication on the testing problem to the prosecutors association, as of Friday morning.
“We would obviously welcome that,” Lloyd said. “Something in writing is generally better than something verbal … I believe that it probably is coming but MSP was trying to do their due diligence to give that information out as soon as they knew it.
“It’s always important that we know and are able to trust information that we’re using.”
Lloyd said Attorney General Dana Nessel’s Office was informed about the testing problem. The AG’s Office didn’t respond to an MLive request for comment.