Friend Got Duid But Wasnt Under The Influence, How To Help

[chernobyl]

good friend of mine got stopped by the police and got a duid. he is legal and medical. he passed the sobriety tests. he refused to give a blood sample so the cops got a warrant from the magistrate to get one. of coarse he had thc in his system so they charged him with a duid. he was not under the influence at the time. the court appointed lawyers around here are all tied into the court system, they always try to get everyone in town to take a plea bargain for anything, just so they dont have to do any work and get off easier than their original charge. it's all a scam. i think he may be planning to get an out of town lawyer that actually knows the laws and takes time to do the proper research instead of these lazy spoon fed clowns in town.

 

i thought i read somewhere the michigan court of appeals let someone off because just because someone has thc in their system doesnt mean they are under the influence. especially if you pass a sobriety test. i cant find it though now. does anyone here have any links to articles of people getting off or any changes in the law regarding this? i told him i would try to help him get any research i could to help him. it's just not right that he gets charged for something he didnt even do. thanks in advance everyone. muself and im sure my friend would really appreciate the help. we live in upper mi and everything including the court house and where we live are backwater and way behind the times.

[Kingdiamond]

What county and what exactly tipped the officer off to your Buddy's status how did they know he was a medical cannabis user?

 

I'm not admitting anything until they force me present my card precisely for this reason once they know your a medical marijuana patient they insist on pulling blood to find THC so they can charge you tell your friend to get a marijuana specialty attorney and try to get this tossed out of court.

[bobandtorey]

What county and what exactly tipped the officer off to your buddys status how did they know he was a medical cannabis user?

 

Im not admiting anything until they force me to present my card precisely for this reason once they know your a medical marijuana patient they insist on pulling blood to find THC so they can charge you tell your friend to get a marijuana specialty attorney and try to get this tossed out of court.

great reply

I think you may have forgot to also include $$$$

[Highlander]

This is a real downer, but people also need to understand that there is a difference between "under the influence of" and "impaired." Even the OP is using the terms interchangeably. Unfortunately our law says you can't drive "under the influence" of MMJ. It is possible to be "under the influence" of MMJ but not "impaired." I don't know how one can say they are NOT under the influence if they have THC in their system. We all know MMJ influences us in many ways.

 

The recent court ruling was on marijuana metabolites - NOT actual THC.

 

King Diamond has the right idea. Another good line of defense is to pull out a CG card rather than a patient card if you need to show you're OK to possess MMJ.

[phaquetoo]

ok 1st off have him use the court appt attny, ask for a jury trial, go thru all the motions, near the end they most def will offer all kinds of deals, bye now hopefuly he/she will have enough cash to get a good mm attny or at least a good attny, dont cop no pleas!! Its real easy for some one on the side line to say "dont cop a plea" Im not saying down the rd he/she may get a good enough offer to accept!

 

Remember only around 10 to 20% of jury trials go to the end, even after the prelim he/she can fire their attny and hire their own, most people that cop pleas are indegent (poor) and dont want to risk going to jail, no pleas unless it has nothing to do with driving or having mm in your system!

 

Im not even close to being an attny, but unfortunatly ive had to learn how to deal with the courts, (trouble always finds me, I cant hide from it)

Ive had 3 mm cases of similar circumstances, use that court appt attny for the 200 they want, get a hold of mr. komorn, or matt able and see if they can offer you advise to tell your court appt'd attny! I had matt able a few yrs back contact my court appt'd attny and it got dropped like now!

 

It is realy hard to sit around thinking a judge or jury has your future in their hands, dont worry so much about it so as it makes your family life fall apart or anything! You didnt say if your friend has had any kind of driving under the influence cases before, If this is the first one period, I wouldnt worry to much about it, but most def use the butt wipe court appt'd attny as long as you can, if they dont do what you or your side bar attny (you realy) tells them you can get a mistrial! ive done a few w/o court appt'd attnys and near the end I requested one, and it has worked out for me, in roscomon, alpena and alcona county's!

 

Best of luck to your Friend and any one in this situation, dont sit down and take it, Fight back!

 

Peace

Jim

[Budz-4-U]

Get a lawyer. What county did this happen in ?

[chernobyl]

thank you everyone for the responses. it was delta county. the courts here can actually be real lenient but still doesnt make it right to charge someone with a crime that they didnt commit. i dont really know any details of the case other than what i already stated. im sure he has money as well for a lawyer. hes got a decent job and is a good guy.

[CaveatLector]

thank you everyone for the responses. it was delta county. the courts here can actually be real lenient but still doesnt make it right to charge someone with a crime that they didnt commit. i dont really know any details of the case other than what i already stated. im sure he has money as well for a lawyer. hes got a decent job and is a good guy.

Sounds like he did commit the crime. The elements of the crime involve a requirement that you are driving and that you have a measureable amount of marijuana in your system. That is the crime.

 

I would urge you to contact your state reps and senators and urge them to change the law. Ask your friends to do the same. Everyone should be doing that.

[Zerocool]

thank you everyone for the responses. it was delta county. the courts here can actually be real lenient but still doesnt make it right to charge someone with a crime that they didnt commit. i dont really know any details of the case other than what i already stated. im sure he has money as well for a lawyer. hes got a decent job and is a good guy.

 

if he got busted in delta he or she is going to get time the courts in escanaba will give the max i dont know were you got the info saying they are lenient that is just a crock of you know what and just hope he dont get mannein he should not even be a lawyer.

sorry to hear but he or she must of did some thing to get pulled over. just as i have heard of green houses geting raided and not hiting the news around delta and what is up with that hope every thing works out

[chernobyl]

if he got busted in delta he or she is going to get time the courts in escanaba will give the max i dont know were you got the info saying they are lenient that is just a crock of you know what and just hope he dont get mannein he should not even be a lawyer.

sorry to hear but he or she must of did some thing to get pulled over. just as i have heard of green houses geting raided and not hiting the news around delta and what is up with that hope every thing works out

You would be surprised at how lenient the court can be here. i know a lot of people that have got off easy but usually it's because they don't have a criminal record and pay their fines right away.

 

so you live in the wonder shcity of escanaba i see. i used to live there. i see you post on the daily depress newspaper website. pleased to meet another fellow yooper.

 

yes that is true about greenhouses getting raided and not making the news. most of them are not following state law though. i dont think they should be getting busted, but they should really be more responsible. lot of these people have 100-200 plants which is just stupid. no reason to grow a bunch of plants, just grow big ones. dont dry it all at once or dry in different locations so your not over the weight. i even know a few ppl that are growing with expired cards, can't believe how stupid they are. especially when they're known by cops in town. i do know of some people in garden that have been hassled by the dea and upset though. they actually we're real cool about everything, although i still wouldnt trust them. it was several caregivers growing in one area. the authorities just said they need to fence off each caregivers section. they had extra plants and were just told to pull them. i couldnt believe it. 2 summers ago i even had another small incident. cop pulled me over and my car just reeked like weed bad. my passenger had a roach which he ate right away. i could smell it bad when he took it out of his pocket before eating it(he didnt have a card at the time). i told the cop there was nothing in the car but he's free to look around. he said i can make this real hard for you so just tell me where it is. i said i actually have a card and showed him. i said hes free to check the car again. he asked if i smoked at all that day. i told him no because the last time i did was the previous night. i did have thc in my system though. he searched my friend and found nothing. he said im free to go and have a safe night. i told him thanks i really appreciate you being lenient. i mean he had to know i had thc in my system. maybe it's because i was so cooperative and friendly to him.

Edited November 29, 2012 by chernobyl

[chernobyl]

Sounds like he did commit the crime. The elements of the crime involve a requirement that you are driving and that you have a measureable amount of marijuana in your system. That is the crime.

 

I would urge you to contact your state reps and senators and urge them to change the law. Ask your friends to do the same. Everyone should be doing that.

yes, it was in his system, but no he wasnt actually under the influence at the time. myself and several ppl i know have gotten let go by cops who had to know it was in our system. all depends if the cop likes you and wants to charge you. then if they do it's in the hands of the court.

 

what i dont like is i can drink a beer or 2 and drive legally. got stopped leaving a bar once and the cop asked me if i drank. i said yeah i had a beer but only one and i can take a breathalizer no problem. i cant remember what i blew but it was real low and he said have a safe night. didnt even want to see my license.

 

but if i take 1 hit of weed and it's still in my system 3 or more days later, im considered duid.

 

i say if you can pass a sobriety test, you can drive.

 

think of how many ppl are actually impaired driving right now as we type. driving while tired or angry is considered impaired and they say not to drive. however everyone still does because they have places to be like work or picking up their kids. hell i drive angry, tired, thc in my system all the time and my driving record is near flawless besides a couple speeding tickets. i do a LOT of driving too almost everyday. i really need to get a 4 cylinder car.

[t-pain]

they say driving while texting is worse than drunk driving.

i see texting drivers every day. i drive a lot too.

 

we need to scrap this car stuff and move to trains and subways.

better for everyone.

[CaveatLector]

yes, it was in his system, but no he wasnt actually under the influence at the time.

You cannot equivocate on the phrase, "under the influence." Your defintion of, "under the influence" is not relevant. If it is in your system then you are per se under the influence according to the law. You cannot simply redefine the phrase to argue that you aren't under the influence.

 

You need to channel your anger and ask your state reps to change the law. That is the only way out of this.

[pic book]

so green house busts that don't get in the paper indicate leo turns them into sweetheart cuts and the green house continues in biz with the cops a % partner??

[chernobyl]

You cannot equivocate on the phrase, "under the influence." Your defintion of, "under the influence" is not relevant. If it is in your system then you are per se under the influence according to the law. You cannot simply redefine the phrase to argue that you aren't under the influence.

 

You need to channel your anger and ask your state reps to change the law. That is the only way out of this.

 

im defining it the way it should be and what is right. the law is wrong and everyone knows it including yourself. im not angry nor am i channeling any anger whatsoever. there have been cases of people getting off. it's all up to the judge in the end. actually i talked to my another friend yesterday who lives downstate and his room mate just got a duid completely dropped because he wasnt high at the time, jackson county. they had blood work and all. the judge said there still wasnt significant proof even though it was in his system. im trying to get him to email me the court records and police report. if he does i will post it but i will have to blur out names. no offense but you are no help. and if you actually agree with the law then gtf out of here. now i am angry, people like you who think they know what they're talking about because they know a few big words. im looking for people with experience with the law, not someone with a big vocabulary basically telling me my friend is screwed when he has a fair chance of getting off. all i want is any public cases of people getting let off. i will post a police report and any court papers if my other friend sends it.

[chernobyl]

they say driving while texting is worse than drunk driving.

i see texting drivers every day. i drive a lot too.

 

we need to scrap this car stuff and move to trains and subways.

better for everyone.

personally i hate public transportation. always dirty, dirty people with no money, dirty seats. i dont like it. glad i dont live in a big city. i know they're not all like that, i'm just bringing up the worst. you know trains would be pretty cool though as long as they were well maintained and kept clean. no dirty ppl either. they can walk instead. im a germaphobe.

[chernobyl]

so green house busts that don't get in the paper indicate leo turns them into sweetheart cuts and the green house continues in biz with the cops a % partner??

it sure is a possibility but i think it's more that they don't like to prosecute older people with REAL disabilities. they also probably were not very many plants over. its not like these young kids that go around 'yeah i got my medical card because i fake pain, grow in plain view of everyone, burn ride every day, have a bunch of people over that dont have cards and are totally maintaining a drug house.' those are the people that get busted more. there are so many grow ops that are known in the area by cops. i know of several people in the area that got let off for violations. like let off by cops, not even brought to the courts. it can all depend which cop you get. some hate these new laws and some like how they are not arresting as many people. some of these people with greenhouses getting busted are far from obeying the law. like having 200 + plants and not even having a card or paper work saying they're waiting to get approved. i dont wish for them to get busted but at the same time it is stupid of them and is ruining it for the rest of us who do stay within the law as best as we can. it is hard though to stay strictly in the law for a lot of us. too much weight after drying is a big problem. lot of times when im drying a lot i'll give it to patients i caregive for straight off the plant free of charge. better than getting busted with overages. no reason for people to have all these plants. 12 is more than enough per person. grow bigger plants and you get a massive yield. sometimes i grow mine 1 plant per 600w light. the duid thing is such bullsh!t though. it sucks how right now i have thc in my system but i am completely sober. i havent smoked in almost 12 hours, and wont smoke again until after im home from work. i could literally get pulled over on my way to work, forcefully brought to the hospital for blood testing, then would have to bail myself out and face a duid charge when i was completely sober the whole time. although chances would be slim cause if you don't smell like it you're probably safe of even getting suspected unless you're a known trouble maker in town.

[CaveatLector]

im defining it the way it should be and what is right. the law is wrong and everyone knows it including yourself. im not angry nor am i channeling any anger whatsoever. there have been cases of people getting off. it's all up to the judge in the end. actually i talked to my another friend yesterday who lives downstate and his room mate just got a duid completely dropped because he wasnt high at the time, jackson county. they had blood work and all. the judge said there still wasnt significant proof even though it was in his system. im trying to get him to email me the court records and police report. if he does i will post it but i will have to blur out names. no offense but you are no help. and if you actually agree with the law then gtf out of here. now i am angry, people like you who think they know what they're talking about because they know a few big words. im looking for people with experience with the law, not someone with a big vocabulary basically telling me my friend is screwed when he has a fair chance of getting off. all i want is any public cases of people getting let off. i will post a police report and any court papers if my other friend sends it.

The phrase, "under the influence" is a phrase used colloquially. It doesn't mean your driving was, in any manner, influence by marijuana. That is what you are failing to understand. If it can be proved that marijuana was in your system while you were driving then you can be found guilty. What judge X did in the past is not all that relevant. The judge is acting beyond his or her power if the judge doesn't find you guilty when it is proven beyond a reasonable doubt that the drug was in your system regardless of whether it affected your driving. The law reads:

 

(8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214.

 

It is a zero tolerance law of which you can be convicted under if there is even a trace of a schedule 1 substance in your body irregardless of the drug's impact on your driving ability. Therefore, to avoid conviction you must be able to successfully contest any evidence that is presented that tends to show that such a substance was in your body. Relying on an activist judge or jury to let you off based on their opinion of the value of the law is probably not the best strategy.

 

You can hurl insults or call me names for pointing out the facts but killing the messenger will get you no where. "Significant proof" of marijuana affecting your friend's ability to drive is not needed when s/he is charged with OWPD. Why? Because impairment is not an element of the crime. Your assertion that your friend has a "fair chance" of getting off is probably an incorrect assessment of his situation.

[cristinew]

What caused the Cops to get a warrant to draw the blood?? ,, Challenge the warrant..that might work it did here,, Cops said driver was all over the road,, got the cops video and he was not,,, cop lied to get warrant and the case was dismissed,,.

 

Delta County Sukss

 

Always make complete stops.. if you drive threw a light or stop sign the cop can say he was so high he drove right threw the stop sign , easy for them to get a good warrant for that....

 

Keep all smells of cannabis out of your car,,,, also do not have gum air fresheners hand wash in sight of the officer,, they take this as your trying to cover up smells.,...

 

I know how the Michigan State Police are trained

Edited November 13, 2012 by cristinew

[chernobyl]

What caused the Cops to get a warrant to draw the blood?? ,, Challenge the warrant..that might work it did here,, Cops said driver was all over the road,, got the cops video and he was not,,, cop lied to get warrant and the case was dismissed,,.

 

Delta County Sukss

 

Always make complete stops.. if you drive threw a light or stop sign the cop can say he was so high he drove right threw the stop sign , easy for them to get a good warrant for that....

 

Keep all smells of cannabis out of your car,,,, also do not have gum air fresheners hand wash in sight of the officer,, they take this as your trying to cover up smells.,...

 

I know how the Michigan State Police are trained

not actually sure. im sure there was more to the story, but the fact is he was not under the influence of any drug at the time. it was in his system but he was not impaired at the time. i think its one of those things where the cops knew he had a card and dont like him so they have a bias.

 

just sucks how it stays in our blood for so long, over a month even. i could smoke a joint right now, go clean for an entire month, get pulled over and get a duid. luckily i rarely get pulled over now would a cop be likely to suspect i was a smoker. i dont drive after smoking myself because of the laws. if i do smoke in the day time i usually wait a good couple hours. as long as you dont smell like it and your eyes are not red your fine. i even had a different friend who doesnt smoke get suspected of being high because he had red eyes from contact lenses. they never brought him to get blood work but still hassled him.

[SFC]

They have to be "active metabolites" 3-6 hours

[bobandtorey]

I've attached below a copy of the application for leave to appeal filed yesterday by Mr. Koon's attorneys with the Supreme Court.

 

The Court of Appeals decision that is being appealed can be found here: http://coa.courts.mi..._301443.opn.pdf - The COA found that: "This case presents the question whether the “zero tolerance” provision of MCL 257.625(8), which prohibits operating a motor vehicle with any amount of a Schedule 1 controlled substance in the driver’s body, still applies if the driver used marijuana under the Michigan Medical Marihuana Act (MMMA). We conclude that it does."

 

The February 8, 2012 video of the oral arguments that were heard by the Court of Appeals in the Koon case can be viewed here:

[Murph]

CaveatLector advice is solid (second time I posted that today). Listen to it -- you are not comprehending what your being told.

 

It does not matter what you think it SHOULD BE- all that matters is the way IT IS now.

 

 

Your buddy should have took the PBT (esp. as you say He was straight as could be)-- He would have been off in a minute as they cannot detect anything but alcohol

(but while standing next to Him, the LEO could have smelled the Marijuana Odor if He had burned that day -- it sticks to ya !!

_____________________

FIRST:

Michigan is called a "per se" State because if it is in your blood system , your Guilty --

 

In other words, it does NOT matter HOW HIS DRIVING WAS as it does NOT matter (even if He was driving perfectly)

as all that matters is if it is in His blood system or not. If so, GUILTY !! Period.

_____________________

SECOND:

 

So, as this is THE most critical point in time for this young (I assume) persons Life treat it that way.

 

If your a real friend you will impress this upon Him. Stop with with the "it SHOULD be" this way or that way -- or how lenient they are.

They are not lenient and the way it IS is all that matters -- A criminal conviction will follow Him for the rest of His Life.

 

HE NEEDS A RETAINED ATTORNEY WHO IS AN EXPERT IN THESE DUID/MARIJUANA CASES as it is in flux nowdays:

 

So He needs an Attorney who should be regularly trying these types of cases every week (and appeals cases when necessary if the Court errs).

I would also want to know the Attys overall win/loss ratio (as they have to be good with a Jury and that is a very special

skill -- some are better than others). It is really not something that can be taught -- you got it or you don't. You want the best generally.

 

Becauseof this you want the best and It is NOT a time to worry about Money. If He looses the Court will soak him anyway so now is the time to pay for the best.

 

The most expensive is not always the best. It matters if they know Him in that Courthouse -- not so much Law but liked people can do more than disliked.

Not always as respect AND fear of appeals matters. Its complicated so How many won vs. lost in that Judge's court matters too.

 

So money is always an issue (and if you get a great deal, no need for a trial if they give an offer for disorderly (doubtful but does happen).

 

IF He gets convicted the Court will fine Him, His auto (and other) Insurance will increase for years, He will loose, or not get (future) Employment.

Much more.

 

Collateral consequences of a criminal conviction are HUGE. A conviction last for the rest of His Life -- 20, 30, 40, 50 years.

So, few grand that that is needed now is nothing to the future costs.Be ready to pay to go to Jury trial and pay so up front but any unused retainer should be re turned

(but having said that it is not time to be cheap -- a fair payment should be the rule. Attys. got 6-7 years in school and 4-6 years just to learn the real world so a decade

is spent in prep. Your paying for all this.

 

He should also be intimately involved in His Defense and not leave it all to the Attorney. It is HIS butt. So anything He can do to make it better He should do. Ask.

 

As it is mainly a legal issue (if He had it in His system and the test says so) not much He can do --

 

Court cases can go on appeal, and even more costs, so it is time to raise money -- sell everything if need be as He

can always make more money -- but he cannot change a DUID conviction.

 

Again, sell everything if He has too. Borrow from Mom and Dad, Sister, Brother, Aunt or Uncle -- money is easily made by a free man.

 

IT IS THE most important moment in, I assume, His young life.

 

_______________

FIFTH:

 

On the other hand -- Phaqe has a point as well if your Buddy is dirt poor and has no way to get money now and has no assets to sell

 

A Jury Demand is the #1 thing to do First must be filed on the first response and verbally in Court. It should be a given -- and like He suggested, the best offer is close

to the day, or the morning of the trial --- so offers before this are not the best.

 

__

Don't let Him make there mistake others do and think this is no big deal, the court's are lenient anyway ---

 

This is serious as it gets, insurance will go up by thousands, might not ever get driver's license back, jobs will not want Him, could lose housing, and the whole future is on the line with this --

 

NOW IS THE TIME TO THROW EVERYTHING HE CAN AT THIS AND FIGHT LIKE HIS FUTURE DEPENDS ON IT -- Because it does !

 

Then start writing and have your friends write your State Sen. and Rep. to change it to matter how one is driving as this stays in the human system looooong after any impairment.

We are all doing this, writing, asking, challenging AND VOTING !!

Edited December 6, 2012 by Murph

[Murph]

Traverse City Atty.

 

• (24243)
  
• HUNT JAMES M
  
• 449 EAST FRONT STREET
  
• P O BOX 1042
  
• TRAVERSE CITY
  
• MI
  
• 49684-2613
  
• (231) 947-2540
  

[Murph]

*Tad but old Opinion, being it is Dec. 5, 2012,, but it is applicable to explain the "per se" aspect of Michigan Law, and is current latest decision on the issue pending Mich Sup. Crt. ruling on this case.*

 

 

 

 

 

 

 

 

 

 

STATE OF MICHIGAN

 

COURT OF APPEALS

 

 

 

FOR PUBLICATION PEOPLE OF THE STATE OF MICHIGAN,

April 17, 2012

9:05 a.m. Plaintiff-Appellant,

 

v No. 301443

Grand Traverse Circuit Court

LC No. RODNEY LEE KOON, 2010-028194-AR

 

Defendant-Appellee. Advance Sheets Version

 

 

Before: SAWYER, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ.

 

SAWYER, P.J.

This case presents the question whether the “zero tolerance” provision of MCL

257.625(8), which prohibits operating a motor vehicle with any amount of a schedule 1

controlled substance in the driver’s body, still applies if the driver used marijuana under the

1

Michigan Medical Marihuana Act (MMMA). We conclude that it does.

Defendant was pulled over for speeding 83 miles an hour in a 55-mile-an-hour zone. The

arresting officer smelled intoxicants, and defendant admitted having consumed one beer

sometime within the last couple of hours. Defendant consented to a pat-down of his person,

voluntarily removed a pipe, and explained that he had a medical marijuana registry card and had

last smoked marijuana five to six hours earlier. A blood test showed that defendant had active

tetrahydrocannabinol in his system. Defendant was charged with operating a motor vehicle with

2

a schedule 1 controlled substance in his body under the “zero tolerance” law. The district court

concluded that the MMMA protected defendant from prosecution under MCL 257.625(8), unless

the prosecution could prove that defendant was actually impaired by the presence of marijuana in

his body. The circuit court affirmed and concluded that the MMMA supersedes the zero-

tolerance law. The prosecution now appeals by leave granted.

This question can be resolved by looking to the pertinent statutory provisions and

considering the basic rules of statutory construction. Like the interpretation of other statutes, our

 

 

 

-1-

 

duty when analyzing an initiative law is to ascertain and effectuate the intent of the people. We

presume that the people meant what the statute plainly expresses and give all words their

3

ordinary and customary meaning as the voters would have understood them.

MCL 257.625(8) provides:

A person, whether licensed or not, shall not operate a vehicle upon a

highway or other place open to the general public or generally accessible to motor

vehicles, including an area designated for the parking of vehicles, within this state

if the person has in his or her body any amount of a controlled substance listed in

schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL

333.7212, or a rule promulgated under that section, or of a controlled substance

described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL

333.7214.

Under MCL 333.7212(1)©, marijuana remains a schedule 1 controlled substance despite the

passage of the MMMA.

Turning to the MMMA, MCL 333.26424(a) states in relevant part:

A qualifying patient who has been issued and possesses a registry

identification card shall not be subject to arrest, prosecution, or penalty in any

manner, or denied any right or privilege, including but not limited to civil penalty

or disciplinary action by a business or occupational or professional licensing

board or bureau, for the medical use of marihuana in accordance with this act,

provided that the qualifying patient possesses an amount of marihuana that does

not exceed 2.5 ounces of usable marihuana . . . .

MCL 333.26423(e) defines “medical use” of marijuana as

the acquisition, possession, cultivation, manufacture, use, internal possession,

delivery, transfer, or transportation of marihuana or paraphernalia relating to the

administration of marihuana to treat or alleviate a registered qualifying patient’s

debilitating medical condition or symptoms associated with the debilitating

medical condition.

The MMMA also recognizes a number of circumstances under which the medical use of

marijuana is not permitted. One of those exceptions specifically states that the protections will

4

not apply to operating a motor vehicle while under the influence of marijuana. Thus, while the

MMMA permits the medical use of marijuana, it recognizes that marijuana use is inconsistent

with engaging in some activities at the same time as the use of the marijuana. This is certainly

not an irrational provision. For example, it is not uncommon for a medication, whether

 

 

 

-2-

 

prescription or over-the-counter, to be accompanied by a warning not to drive while using the

medication. The problem that develops in this case is that, while MCL 333.26423 defines a

number of terms used in the MMMA, it does not define the phrase “under the influence of

marijuana.”

What we are left with is the MMMA, which affords a certain degree of immunity from

prosecution for possession or use of marijuana for a medical purpose, and the Michigan Vehicle

Code, which prohibits operating a motor vehicle while there is any amount of marijuana in the

driver’s system. These two provisions are not in conflict. The MMMA or the Legislature could

have rescheduled marijuana to one of the other schedules, but they did not. Therefore, marijuana

remains a schedule 1 controlled substance. Furthermore, while the MMMA does not provide a

definition of “under the influence of marijuana,” MCL 257.625(8) essentially does, establishing

that any amount of a schedule 1 controlled substance, including marijuana, sufficiently

influences a person’s driving ability to the extent that the person should not be permitted to

drive.

In order to conclude that the MMMA authorizes the operation of a motor vehicle with

some marijuana in the driver’s system, we would have to supply a definition of “under the

influence of marihuana” in MCL 333.26427(b)(4) that conflicts with the provisions of MCL

257.625(8). To do so, we would have to conclude that the MMMA repealed MCL 257.625(8) by

implication as applied to marijuana. But it is well established that repeal by implication is

5

disfavored. To do so, there must be a clear legislative intent to repeal, and there must not be

6

another reasonable construction.

In this case, there is a reasonable construction. The Legislature has determined that it is

illegal to operate a motor vehicle with any amount of marijuana in the driver’s system.

MCL 257.625(8). This does not conflict with the MMMA because not only does the MMMA

not extend its protections of the medical use of marijuana to operating a motor vehicle while

under the influence of marijuana, it also recognizes other circumstances in which the medical use

of marijuana is not permitted by the MMMA. For example, medical use of marijuana is not

7

permitted on a school bus, and the MMMA does not permit smoking marijuana, even for

8

medical use, on public transportation.

Indeed, this points out one of the flaws in the argument that defendant has the right to

“internally possess” marijuana while driving. While the MMMA does include the term “internal

9

possession” within its definition of “medical use,” that does not equate with a right to internally

possess marijuana under any circumstances. As noted, the MMMA specifically does not permit

 

 

 

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any medical use of marijuana on a school bus, which presumably includes even internal

possession. Similarly, under other circumstances, some, but not all, types of medical use of

marijuana are permitted, for example, public transportation, where one can presumably internally

possess it, but not smoke it.

Furthermore, the MMMA does not codify a right to use marijuana; instead, it merely

provides a procedure through which seriously ill individuals using marijuana for its palliative

effects can be identified and protected from prosecution under state law. Although these

individuals are still violating the law by using marijuana, the MMMA sets forth particular

circumstances under which they will not be arrested or otherwise prosecuted for their

10

lawbreaking. In other words, the act grants immunity from arrest and prosecution, rather than

the granting of a right. Thus, contrary to defendant’s claim, he does not have a blanket right to

11

internally possess medical marijuana.

The point is that the MMMA does not permit all types of medical use of marijuana under

all circumstances. Rather, there are circumstances under which some uses are permitted and

others under which no use is permitted. If the drafters of the MMMA had wanted to include

immunity for the operation of a motor vehicle in MCL 333.26424, the act would have explicitly

granted immunity either in MCL 333.26424(a) or in MCL 333.26423(e). It does not. Indeed,

MCL 333.26427(b)(4) explicitly prohibits the operation of a motor vehicle while under the

influence of marijuana. And in the Michigan Vehicle Code, MCL 257.625(8), the Legislature

has provided a definition of what constitutes being under the influence of marijuana: the

presence of any amount of marijuana in the person’s body, that is to say, while “internally

possessing” it.

The MMMA does not provide a protection from prosecution for violating MCL

257.625(8). Driving is a particularly dangerous activity; schedule 1 substances are considered

 

 

 

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particularly inimical to a driver’s ability to remain in maximally safe control of the vehicles, and

the danger of failing to do so affects not only the driver, but anyone else in the vicinity.

For these reasons, defendant was properly charged with a violation of MCL 257.625(8),

and CJI2d 15.3a (operating a vehicle with any amount of a schedule 1 or 2 controlled substance

in driver’s body) may be given at any trial in this case.

Reversed and remanded for further proceedings consistent with this opinion. We do not

retain jurisdiction.

/s/ David H. Sawyer

/s/ Peter D. O’Connell

/s/ Amy Ronayne Krause

 

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1

MCL 333.26421 et seq. Although the statute refers to “marihuana,” this Court uses the more

common spelling “marijuana” in its opinions except in quotations.

2

MCL 257.625(8).

 

3

People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010).

4

MCL 333.26427(b)(4).

 

5

Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996).

6

Id.

7

MCL 333.26427(b)(2)(A).

8

MCL 333.26427(b)(3)(A).

9

MCL 333.26424(e).

 

10

See People v King, 291 Mich App 503, 507-509; 804 NW2d 911 (2011), lv gtd 489 Mich 957;

see also Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914, 922 (WD Mich, 2011).

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Defendant contends that the MMMA grants him the “right” to “internally possess” marijuana

and, therefore, as long as he does not break any other laws, he can go about his day-to-day

activities, including operating a motor vehicle. Defendant further argues that as long as the

marijuana does not affect his ability to operate a motor vehicle, he is immune from prosecution.

Like most individuals, defendant misconstrues the MMMA. The MMMA does not codify a right

to use marijuana, nor does it grant any citizen the “right” to use or possess marijuana. While this

may seem strange to anyone who has encountered the act, it is the process set up by what many

have referred to as an inartfully drafted act. What the MMMA did is set up a process by which

certain individuals cannot be arrested or prosecuted for their lawbreaking. These protections, or

immunities from lawbreaking, are very limited in scope. In essence, defendant is asking this

Court to extend these protections to other activities, such as operating a motor vehicle, a boat, or

an airplane. We respectfully decline; it is the Legislature’s job to expand the law, not the Court’s

responsibility.

Edited December 6, 2012 by Murph