Is it possible to use medical marijuana while on probation?

KOMORN LAW

STATE and FEDERAL
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All Criminal Allegations / DUI / Drugs
Since 1993

Is it ?

For the last 13 years of the Michigan Medical Marijuana Act (“MMMA”), patients on probation have asked that simple question. Relying on the simple plain language in the act that protects a medical marijuana patient from denial of any right or privilege (probation), as well as protection from penalty in ANY MANNER, as long as they followed the medical marijuana laws and rules.

Until now, it was up to each individual courtroom to decide the patients fate. The judges, prosecutors, probation officers and drug testing labs decided which medicines a probationer could use. In some cities and townships medical marijuana was allowed, but in others, patients had to fight. Some were successful, most were banned from using their doctor recommended medicine, and would likely face serious penalties and jail time if they broke those probation rules. Thousands of patients were sent back to jail because of testing “dirty.”

As president of the Michigan Medical Marijuana Association, Michael Komorn has fought for every patient on this issue in courtrooms across the state, by trying to secure their rights under the law to not be penalized for the legal use of medical marijuana. Komorn has fought for patients on bond to be able to use medical marijuana as a bond condition. With over 300,000 registered medical marijuana patients in Michigan, thousands of patients had their bond revoked due to choosing their medicine, as recommended by a doctor.

The justice system has crushed medical marijuana caregivers and patients for more than a decade on many issues. Usually with the excuse that “marijuana is illegal” or “a trial court has considerable discretion to set conditions of probation.”

Four years ago, this was the excuse in People v Magyari that the Michigan Court of Appeals used to deny a registered medical marijuana patient from administering medical marijuana for his condition. The Court stated in its opinion:

“Defendant has failed to offer any persuasive argument for the proposition that the MMMA prohibits a trial court from ever imposing a probationary condition barring the use of medical marijuana. The challenged probationary condition is reasonably related to the goal of defendant’s rehabilitation, including preventing future criminality, as well as protecting the public. Affirmed.”

Until February 2021, when People v Thue was published, that was the law of the land.

Today, attorneys Michael Komorn and Alyssa McCormick, of Komorn Law, provided the “persuasive argument” for medical marijuana on probation. That persuasive argument boiled down to the plain language of the law that so many courts have ignored and disparaged for the last 13 years. The plain language of the law in section 4, for the right to use medical marijuana, has not changed, so why did it take this long to have a correct ruling? No one knows.

The Court ruled:

“The Michigan Probation Act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3. However, provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.”

The Court went on to state:

“We also conclude that the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” under MCL 333.26424(a) of the MMMA.”

Most times, courts will not rule on both of these issues. Due to the “first out” rule, the appeals courts usually decline to rule on further issues such as penalties.

One of the more incredible rulings in this opinion was on the issue of mootness. Because of the details of the case, Komorns client’s probation ended before the appeal could be heard. The court in its wisdom understood that this issue was of such public importance and issued an opinion even though the client no longer had standing.

The only other medical marijuana case Komorn can remember that issued a ruling where the defendant did not have standing was when the Michigan Court of Appeals issued an opinion against a patient for taking his plants out of his enclosed locked facility for spraying with pesticide. He lacked standing because he died before the court could issue its opinion. The court issued its opinion anyway, post-mortem. Issues of standing and mootness are the FIRST requirements of having a court review an issue.

Having a court rule favorably while overlooking standing and mootness is quite extraordinary. One can only chalk it up to experience and strategy, or as some call it, “lawyer magic.”

Some judges have called the MMMA the worst law they’ve ever seen.

Courts have ruled against patients in all kinds of cases because they personally feel that marijuana is bad.

The Michigan Court of Appeals in Magyari even claimed that marijuana was addictive! “Further, the trial court found that defendant would simply be replacing one addictive drug—alcohol, for another—marijuana.”

The courts have been wildly inconsistent with opinions, rulings, reversals and remands on the medical marijuana law.

Some predictions are that this ruling will also apply to patients on bond or parolees. While this might be true, we have seen most recently that the Michigan Supreme Court has upended even the simplest of understandings of the plain language of the MMMA, specifically in the case of Deruiter v Byron Township. In Deruiter, the Court unanimously said that a township could craft an ordinance that added requirements to the MMMA. This flies in the face of earlier rulings from the MSC where the justices said in oral arguments that you cannot add surplusage or make any words nugatory within the act.

Said another way, because of the ruling in Deruiter, what would stop a locality from drafting an ordinance with additional requirements to administer medical marijuana while on probation?

“As in Qualls and Miller, the local ordinance goes further in its regulation but not in a way that is counter to the MMMA’s conditional allowance on the medical use of marijuana. We therefore hold that the MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.,13 so long as the municipality does not prohibit or penalize all medical marijuana cultivation, like the city of Wyoming’s zoning ordinance did in Ter Beek II, and so long as the municipality does not impose regulations that are “unreasonable and inconsistent with regulations established by state law.” Qualls, 434 Mich at 363.”

It is also suggested that because the MMMA and the 2018 Michigan Regulation and Taxation of Marijuana (MRTMA) use similar language that this ruling could be used to have the same protective effects of all adults 21 and over to use marijuana while on probation.

Section 4 of the MMMA, MCL 333.26424, states:

Sec. 4. (a) A qualifying patient … is not subject to … penalty in any manner, or denied any right or privilege… for the medical use of marihuana in accordance with this act

While Section 5 of the MRTMA, MCL 333.27955, states:

Sec. 5.

1. Notwithstanding any other law or provision of this act … the following acts by a person 21 years of age or older are … not grounds for … penalty in any manner … and are not grounds to deny any other right or privilege …

Both laws have sections stating that all other laws do not apply to them. The intent of both laws is the same– to give people the right to have medical marijuana and legal marijuana. Under no other circumstances can an individual be denied access to marijuana, as long as they follow the MMMA and or MRTMA.

HANDS OFF OUR MARIJUANA ALREADY. THE PEOPLE HAVE SPOKEN.

Strangely, there is an unattributed quote, possibly from one of the judges in the case which addresses this in the opinion:

“We note, however, that the MMMA is inapplicable to the recreational use of marijuana, and thus, a trial court may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use, as well as for marijuana use in violation of the MMMA.”

While the opinion did not directly address the MRTMA (notwithstanding the weird uncited and dicta quotation at the bottom of page 6-7 of the slip opinion), it seems that the statutory language in MCL 333.27955(1) and MCL 333.27954(5) would compel a similar outcome with respect to adult-use marijuana.

The Thue opinion relies on the preemption language in MCL 333.26427(e) and finds that revocation of probation is a “penalty” in violation of Section 4 of the MMMA.

Similarly, Section 5(1) of the MRTMA provides, “Notwithstanding any other law or provision of this act, and except as otherwise provided in section 4 of this act, the following acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege . . .”

While Section 4(5) of the MRTMA provides, “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”

It would seem that the takeaway of Thue opinion is that revocation of probation is a “penalty” and the MRTMA prohibits the imposition of a penalty for conduct that is permitted by the MRTMA, it would stand to logically follow that the MRTMA similarly protects those who are age 21+ from having their probation revoked for engaging in conduct that is protected by the MRTMA.

An issue to be fought in court in the future.