In People v. Koon, the Michigan Supreme Court unanimously held that, under the Michigan Medical Marihuana Act (MMMA), a qualifying patient may not be arrested or prosecuted for the medical use and internal possession of marijuana while driving if possession does not exceed 2.5 ounces. However, if the defendant is shown to have been under the influence of marijuana, he or she will lose immunity for noncompliance with the MMMA and may be prosecuted. This per curiam opinion was filed on May 21, 2013.
During a traffic stop for speeding in Grand Traverse County, the defendant showed the arresting officer a marijuana pipe and expressed that he was a registered patient under the MMMA. The defendant was charged with operating a motor vehicle with the presence of a schedule 1 controlled substance in his body (MCL 257.625(8)). A blood test later revealed that the defendant had a blood THC content of 10 nanograms per milliliter.
The defendant claimed that the zero tolerance provision could not apply under the MMMA, as it blocks the prosecution of registered patients for medical use unless the defendant is driving under the influence. Both the district court and circuit court agreed. The Court of Appeals reversed, stating that the MMMA was subject to the Legislature’s conclusion that it is not safe for a person to drive with any amount of marijuana in his or her system. In turn, the Court of Appeals found that the defendant could be prosecuted under the zero-tolerance statute.
The Supreme Court asserted that the MMMA does not define “under the influence.” The Court stated that it is something more than simply having any amount of the drug, however small, in one’s system. There is a requirement that the marijuana has some effect on the individual. Black’s law dictionary defines the term of art “under the influence” as being “deprived of clearness of mind and self-control because of drugs and alcohol.” The Court also cited People v. Lambert, which concluded that a proper jury instruction for driving under the influence required proof that the defendant’s driving ability was “substantially and materially affected.” Moreover, the Court stated that this case could have been easily decided if the MMMA defined “under the influence.” To rectify this, the Court suggested that the Legislature consider amending the MMMA to adopt a legal limit of marijuana similar to alcohol to show when a registered patient would fall outside the MMMA’s protection.
In conclusion, the Court determined that the MMMA supersedes MCL 257.625(8) unless the registered qualifying patient loses immunity by not acting in accordance with the MMMA. Therefore, the zero-tolerance provision, which is inconsistent with the MMMA, does not apply to the medical use of marijuana.
The Court then, instead of granting leave to appeal, reversed and then reinstated the Grand Traverse Circuit Court’s judgment and remanded to district court for further proceedings.
This case demonstrates some of the problems with current Michigan law. Lawyers around Michigan are now trying to figure out how to determine if someone is “under the influence” of marijuana. This will now be the subject of debate in courtrooms and in the Legislature. When Michigan passed its law, it left many unanswered question, which have created litigation hysteria. This is especially so with governmental agencies resistant to the law.
Looking at the big picture, this case illustrates the problems with a “zero tolerance” law. Some drugs like Marijuana stay in your system for substantial periods of time. It really makes little sense to tell an unlicensed marijuana user that you cannot drive because you smoked 30 days ago. There are numerous drugs that can be detected for weeks and even months using hair follicle testing. So today, someone could stop all use of illegal drugs and then be prosecuted for driving, totally unaffected by the prior use. Today, there is no reason to believe that the courts or the Legislature will come up with a more sensible solution.
Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.