While the mystery behind what led Michigan state police forensic scientists to produce thousands of faulty marijuana blood test results lingers, multiple criminal defense attorneys who spoke with MLive are calling for a new way of doing things.
They believe the science that produces data at the center of criminal prosecution should be unbiased and independent of law enforcement influence. They want police out of the the forensic testing business and they’re using the latest THC blood testing debacle to justify their stance.
It’s been a month since state police said they realized there was a problem with the results produced by the agency’s blood toxicology testing for THC, the psychoactive compound in marijuana.
“When the issue first came to our attention on Aug. 19, 2022, the (Michigan State Police Forensic Science Division) immediately launched a significant evaluation of our testing process,” state police Director Col. Joe Gasper said in a prepared statement. “The evaluation found the laboratory confirmatory method in use may cause … THC to be identified when the sample contains a combination of THC and CBD, or THC to be identified when the sample contains CBD alone.”
CBD, or cannabidiol, is a cannabis compound that is often used for therapeutic reasons, but it doesn’t impair a person’s cognitive abilities or induce feelings of intoxication.
The faulty tests have often been used to leverage plea deals or obtain convictions, especially in impaired- or intoxicated-driving cases in which marijuana is the suspected culprit.
When asked follow-up questions regarding the issue by MLive, state police spokesperson Shannon Banner on Aug. 31 said: “This is still a rapidly evolving situation, and we will not be making public comments or answering further questions beyond the statement we have issued.
“Our Aug, 31 statement is still the most current information we have to share,” Banner told MLive when asked for an update this week.
Multiple lab specialists and defense attorney who have followed state police drug testing over the years said there is a substance used in the blood testing process, called a reagent, that potentially converts CBD to THC, producing the erroneous results.
A reagent is used in testing to highlight specific compounds the lab is looking for, like THC, but it may also cause chemical reactions, said Frank Conrad, the chief technology officer with Colorado Green Lab, a forensics consulting firm.
Conrad said the problem is widespread nationally, but is common knowledge among many in the lab testing world.
“THC and CBD have identical molecular weight … and when you treat a sample that contains CBD containing structures — whether it’s CBD metabolite or CBD itself — acidic pH (potential hydrogen) will promote the conversion of CBD into THC,” Conrad said.
Conrad said he deals with the issue several times a year, often serving as an expert witness for defendants attempting to discredit THC results for similar reasons across the U.S. In most cases, he said, those he testifies for insist they haven’t consumed marijuana, but CBD products.
Conrad said large accrediting bodies that certify lab methods nationally and a growing number of laboratories are aware of the issue.
East Lansing-based criminal defense attorney Michael Nichols said he’s been “calling this to the attention of judges all over the state” for years. He doesn’t believe the state police crime lab first learned about the problem last month.
“I don’t buy it,” Nichols said by phone. “We’ve been bringing this issue to judges and juries for nearly 10 years or more, and they’ve just ignored it.
“My theory as to why they’ve ignored it, is they want to make their criminal justice partners — and I’m using air quotes — happy. It’s almost every time they get caught with their pants down, it’s: nothing to see here judges, prosecutors, cops. We’ve got this.”
Forensic science, especially when the freedom of defendants is on the line, “should be about integrity and process over convictions,” he said.
In its only statement, Michigan state police estimated there are more than 3,000 cases that could be impacted by faulty THC blood tests. Any drug tests that confused CBD and THC prior March 28, 2019, are moot, the agency claimed. That’s the date a federal farm bill was passed legalizing hemp farming, which CBD is derived from. Hemp, by definition, contains negligible amounts of THC.
When asked to explain the logic behind selecting the date the hemp farming bill took effect as a cutoff for impacted cases, the agency declined comment.
“To say there’s a boundary that goes to March 2019 for potentially false convictions, that’s specious, and it’s yet another example of why forensic science should not be under the aegis of the Michigan state police,” Nichols said. “It should be under a completely different state department.”
He recommends anyone who pleaded to or was convicted of a crime in which the investigation involved a blood test for THC, regardless of the date, contact a lawyer to see if there are grounds for a challenge.
Nichols cited a 2020 issue state police had alcohol breathalyzer machine calibration as another reason for moving substance testing outside the agency.
Gov. Gretchen Whitmer in 2021 created a task force focused on evaluating the state police forensic services. The task force is considering the possibility of recommending the state forensic lab be moved to another agency. Its final recommendations are expected later this year.
Rep. Laurie Pohutsky, D-Livonia, a member of the Task Force on Forensic Science, said there has been little discussion regarding the blood testing issue.
It’s not a focus of the task force, she said, adding that information surrounding the problem should be released to the public as soon as feasibly and responsibly possible.
Arthur J. Weiss, president of the Criminal Defense Lawyers of Michigan, said he doesn’t believe the blood test problem is “something that just fell from the sky.” In the meantime, he said, there are few answers and likely people dealing with the fallout of convictions that are unjust, whether it’s jail time, a suspended driver’s license or probation.
“I’m troubled by the way this was rolled out and the lack of transparency and information that’s been given to us,” he said. “There have been a number of people in the defense community for years that have indicated the crime lab should be an agency and department independent of the Michigan state police, because we’re concerned about the potential institutional bias and wondering whether this is the type of situation that reinforces that belief.”
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