Michigan Supreme Court ruling on driving with presence of marijuana is a major MMMA break through.
By Michael Komorn
Rodney Lee Koon was charged in the 86th District Court with operating a motor vehicle with any amount of a schedule 1 controlled substance in his body. When he was stopped for speeding, he informed the officer that he was a medical marijuana patient and admitted that he had smoked marijuana five to six hours earlier.
After a blood test revealed that Koon had THC in his bloodstream when operating the vehicle, the court concluded that his registration under the Michigan Medical Marihuana Act, MCL 333.26421 et seq., protected him from prosecution under MCL 257.625(8) unless the prosecution could prove that the defendant was actually impaired by the presence of marijuana in his body.
The ruling was affirmed by the Grand Traverse Circuit Court, concluding that the Michigan Medical Marihuana Act superseded the zero-tolerance provision of MCL 257.625(8). The prosecution appealed by leave granted, and the Court of Appeals reversed on grounds that the Michigan Medical Marihuana Act prohibits registered patients from operating a motor vehicle while under the influence of marijuana and reasoning that per MCL 257.625(8) a person is under the influence of marijuana if he or she has any amount of marijuana in his or her body.
Koon sought leave to appeal. In an unanimous opinion per curiam, the Michigan Supreme Court, in lieu of granting leave to appeal and without oral argument held:
The MMMA does not define what it means to be “under the influence,” but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana.
Michael Komorn is recognized as a leading expert on the Michigan Medical Marihuana Act. He is the President of theMichigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marijuana patients, and caregiver rights. Michael is also the host of Planet Green Trees Radio, a marijuana reform based show, which is broadcast every Thursday night 8-10 pm EST. Follow Komorn onTwitter.
Hats off and a thumbs up to the Arizona Supreme Court letting stand a trial court’s ruling that the County Sheriff of Yuma County, Arizona must return the medical cannabis seized from a patient visiting Arizona from California, both of which are medical marihuana states. In Michigan, the reference to visiting patients in the MMMA can be found in Section 4 (j):
A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the Medical use of marihuana by a visiting qualifying patient, or that allows a person to assist with a visiting qualifying patient’s medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department of Licensing and Regulatory Affairs.
Unlike Arizona, the Michigan Court of Appeals and the Michigan Supreme Court have not yet addressed this issue. However, from what has been analyzed thus far in the Michigan courts regarding medical marihuana, the visiting patient should be protected from arrest, prosecution, or any penalty, presuming they have not violated section 7b of the act. The visiting patient should be immune from the penalties of the possession of marihuana that would otherwise be illegal pursuant to the public health code, 333.7403.
While it is clear from the trilogy of cases from the Michigan Supreme Court, i.e. King, Bylsma and McQueen, that a visiting patient would be entitled to assert an affirmative defense pursuant to section 8, one can only imagine the challenges that would exist with presenting the first prong of section 8, which states:
Sec. 8. (a) Except as provided in section 7(b), a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
Interesting to this requirement is how a physician is defined in the MMMA in section 3(g), suggesting that an out of state Dr. could provide the requisite testimony required in prong 1 of section 8 of the MMMA. By definition they are not licensed as a physician under Part 170 of the Public Health code or any other section of Michigan statutes that define a doctor. 3 (g) “Physician” means an individual licensed as a physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556.
Obviously there are doctors in Michigan who could potentially provide the necessary testimony needed to satisfy the requirements of section 8, prong 1, but one can see the challenges to the visiting patient, and why the Arizona Supreme Court was correct in honoring the law the voters of Arizona passed in November of 2010.
Also interesting in this decision is the Arizona Supreme Court upheld the trial court’s ruling to return of the medical cannabis to the out of state patient. The State of Michigan’s leading law enforcement officer, Bill Schuette, in his Opinion #7262 (see Bill Schuette Obsessed With Medical Marihuana) articulated his position as it relates to the return of medical cannabis to patients or caregivers. Citing marihuana’s illegality pursuant to the Federal controlled substance act, he urged law enforcement officers to not return medical cannabis to patients and caregivers, and suggested that in doing so would create federal criminal liabilities for the officers.
What makes his opinion about Federal Law trumping State Law perplexing is that Bill Schuette has often advocated for States’ Rights. When the State of Arizona defeated the Federal Government in its efforts to pass an immigration statute, Schuette issued the Following Statement, “I’m pleased the Court upheld some authority of states to exercise a role in border enforcement. However, it’s disappointing the ruling did not uphold the broader authority of state governments to enforce laws intended to ensure the safety of their citizens. I will be reviewing the opinion thoroughly to determine its impact on the State of Michigan” Funny, Michigan passed the MMMA with the explicit purpose of providing patients and their caregivers safe access to their medicine, while Schuette goes on a crusade aimed at stripping away any protections the people of his state voted for.
It seems Schuette is in favor of states’ rights when it comes to marriage and health care, but not medical marihuana. He has joined other state governors and attorney generals, spending Michigan tax payer dollars to support litigation opposing the federal health care bill, based upon amongst other things, a States’ Rights argument.
Looking past these political inconsistencies, one would think when the issue is before the Michigan Court of Appeals or the Supreme Court that they too will use the same wisdom of the Arizona Supreme Court and find that visiting patients are protected from arrest, prosecution and any penalty, and that when such a finding is made, the law enforcement agency that confiscated the cannabis must return it to the patient or caregiver.
The city of Wyoming argues that it can reject the voter-approved MMMA because it violates federal law. This week, attorneys will argue before the State Supreme Court whether the city, and thereby any Michigan city, can reject the act.
The whole ordeal began in 2010 when attorney John Ter Beek filed a lawsuit in the Kent County Circuit Court against the city because of its decision to ban medical marijuana distribution by anyone other than a licensed pharmacist. Ter Beek was supported by the ACLU to defend the MMMA which was passed by 63% of the voters in Michigan, and 59% of the voters in Wyoming, MI.
“The (federal drug law) provisions do not preempt the MMMA’s grant of immunity as found in (the Medical Marijuana Act) because it is well established that Congress cannot require the states to enforce federal law,” the court wrote.
On Thursday, Oct. 10, the Michigan Supreme Court will hear arguments by Detroit-based ACLU attorney Daniel Korobkin representing Ter Beek and Wyoming City Attorney Jack Sluiter.
Briefs have been filed in support of the city by the Prosecuting Attorney’s Association of Michigan, the Michigan State Bar Association-Corporate Section, the city of Livonia and the Michigan Municipal League.
Briefs in support of Ter Beek have been filed by libertarian think tank The Cato Institute and Cannabis Attorneys of Mid-Michigan.
In agreeing to hear the case, the State Supreme Court has asked attorneys to focus on whether the state law is preempted by federal law and whether the city ordinance violates the state law.
Oral arguments are scheduled to begin at 9:30 a.m. Thursday and can be seen streaming online on at the Michigan Courts website: courts.mi.gov.
Ter Beek V. City of Wyoming is among the first cases that will be considered by the court in its new term and it has until July 31, 2014, to issue its decision.
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