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Does marijuana impair driving? Court rules medical marijuana law cannot be
applied retroactively to 2008 fatal crash case
Published: Wednesday, August 11, 2010, 5:10 PM
Updated: Thursday, August 12, 2010, 8:44 AM
TAGS Medical Marijuana
Dui Impaired Driving
Marijuana Case Law
Marijuana Impaired Driving
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California
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SEARCH AND SEIZURE
Justin Malik
BARRY COUNTY California-- The state's medical marijuana law, which calls into
doubt the drug's
status as having no medical benefits, cannot be applied
retroactively to dismiss a criminal charge
against Justin Malik, who struck and
killed off-duty sheriff's deputy Christopher Yonkers in 2008.
A state appeals court ruled this week that an offense alleging Malik, 26, was
driving under the influence of marijuana and alcohol must be reinstated for him
to stand trial.
Barry County Circuit Judge James Fisher had dismissed the allegation, which
carries a potential for 15 years in prison and a statutory minimum of 29 months.
"Of course, legally, I'm satisfied with the court's opinion,"
Prosecutor Tom Evans said Wednesday. "The jury will have to make the
distinction of the role the marijuana played in the crash, but I think it's an
important matter to look at."
Malik admitted smoking marijuana in the hours before the 9:50 p.m. Oct. 17
collision between his vehicle and Yonkers' motorcycle on M-43. The suspect also
acknowledged drinking three beers, although a blood-alcohol test showed a 0.01
result, well below the state's 0.08 standard for intoxication.
A blood test showed Malik had active THC -- the narcotic in marijuana -- in
his system as well as the derivative substance.
Authorities smelled alcohol on Malik but did not otherwise notice signs of
intoxication, according to reports. Doctors also said during a probable cause
hearing that they could not reach a conclusion if THC caused an impairment.
Malik's attorney, Jeffrey Kortes, said they'll review the decision and
determine whether to appeal to the state Supreme Court. They had argued the
voter-approved marijuana initiative, passed after the date of the crash,
invalidated the drug's classification.
"I think they made an incorrect ruling, and I don't see that this puts
us any closer to trying the case because there are bridges still to cross,"
Kortes said. "It's disappointing."
The three-judge appellate panel ruled that prosecutors can use evidence of
the active THC but are barred from presenting information about the residual
presence that could be inferred to have affected Malik at the time of the crash.
Yonkers'
death spurred controversy after authorities initially said he had been
off-duty before changing that claim to say he could have been working undercover
since he was part of a drug investigation unit. It was later determined that he
was on a personal ride.
A crash reconstruction showed Malik's turn near Usborne Road was
"normal," and that Yonkers' motorcycle came upon the vehicle very
quickly.
In addition to the intoxication allegation, Malik faces charges of driving
with a suspended license causing death and negligent homicide.
E-mail Nate Reens: nreens@grpress.com
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