Michigan Criminal Lawyer Blog

The recent Court of Appeals case, People v. Koon (which can be read in its entirety here), illustrates how Michigan deals with drugged driving. Oftentimes clients are under the misguided impression that a prescription or a medical marijuana card offers them immunity from prosecution for operating a vehicle while intoxicated. However, Michigan law has two provisions to deal with this. For Schedule 1 narcotics (cocaine, heroin, ecstasy, for example) where there is 'any amount' of the illicit substance the driver can be convicted. Alternatively, impairment must be proven where a client is charged with driving under the influence of a prescribed medication.

The Koon case deals with 3 issues; 1) the 'any amount' provision of MCL 257.625(8); 2) Michigan's Medical Marijuana Act; and 3) marijuana that was ingested hours before the defendant operated the automobile. In this instance, the defendant had a medical marijuana card and had used marijuana five to six hours before driving his automobile. Nonetheless, marijuana's active ingredient THC, which can remain in one's system for weeks after it's ingested, showed up in Mr. Koon's blood. Both the District Court and Circuit Court held that the Medical Marijuana Act was a defense to the zero tolerance law. Unfortunate for Mr. Koon and other card holders, the Court of Appeals did not.

The opinion, which I recommend those visiting this blog take the time read (it's not too complicated), reasons that the Michigan Medical Marijuana Act does not carve out an exception to the 'any presence' law. The MMMA does not reschedule marijuana (it remains Schedule 1) and further specifically states there are no protections for those driving under the influence of marijuana. The issue may be taken up with the State Supreme Court in the future.

What are the takeaways from this case? Most specifically as it pertains to marijuana card holders, they remain at risk driving long after they ingest marijuana. The result does seem harsh given that THC can remain in one's system for weeks after it is initially used. Nonetheless, this seems to shed some light on the way Courts are interpreting that law. Further, this should serve as a reminder that the State does not take lightly to drugged driving. If you are being prosecuted for operating an automobile under the influence of any drug, a marijuana card or a valid prescription does not offer blanket protection. This is likely an issue that will continue to take shape in the Legislature and Court of Appeals over the coming years.

Recently Ann Arbor and Huntington Woods have provided some guidance in Michigan's fractured, complex, and incredibly controversial Medical Marijuana Act. In Ann Arbor, while the city did not weigh in on whether or not to allow additional dispensaries (currently it has 20), it decided that cultivation facilities do not need licenses. Council Member Stephen Kunselman echoed the sentiments of the MMMA and said that he hoped to maintain caregiver confidentiality. Kunselman stated he doesn't want the city to gather information that could wind up in the possession of the feds. Additionally, the city decided not to differentiate between residential and non-residential grow facilities. However, Ann Arbor DID limit the amount of plants to 72. This sheds light on a question frequently posed to us, whether grow cooperatives are permitted under the MMMA.

Somewhat similarly, Huntington Woods adopted regulations for those growing marijuana as caregivers. It decided to prohibit these businesses from being run out of homes. Further, the city has delineated certain districts where these businesses must be located. Additionally, like any other business operating within the city, caregivers will have to submit a site plan to the Planning Commission for approval. However, unlike Ann Arbor, Huntington Woods stated that dispensaries are not embraced by the state law. It should be noted that both of these communities that are opening up the discussion about medical marijuana are communities where the Act was passed by margins in excess of 70%.

However, this does not mean that the dispute over the law's many uncertainties is close to being resolved. Recently, in an article that Abdo & La Grasso Law was quoted in, a Livingston Dispensary was raided. Additionally, the recent raid on Oakland County dispensaries raises serious questions about whether patients and caregivers need to be concerned about interference from the Feds. Moreover, a Dearborn judge recently decided that the entire MMMA was unconstitutional and denied to motion to dismiss a possession case.

So, on one hand we have communities beginning to regulate medical marijuana, and on the other there are communities ignoring the law outright. It is our position that more clarification is needed at the state level. Otherwise, well-intentioned patients and caregivers are going to be placed in jeopardy.

This weekend, in light of the annual Hash Bash held in Ann Arbor, the Detroit Free Press took an opportunity to explore some of the issues surrounding Michigan's medical marijuana laws. There seem to be two camps in terms of the medical marijuana argument. Opponents view the MMMA as against Federal Law and further as a subterfuge for cardholders to engage in illegal activity. Proponents argue that the law, passed by the people with margins of over 60%, should be upheld. The opponents do bring up a valid point, there have been many who have used their cards simply as a shield to grow marijuana or to sell it to those who don't hold a card. Nonetheless, the fact remains that the law was enacted by the people and therefore the will of the people should be enforced. Currently, there are two big issues that need to be ironed out in the law. Those two issues are dispensaries and what exactly constitutes a bona fide doctor patient relationship.

Dispensaries have become the focal point of the medical marijuana argument. Whether for or against them, the fact remains they exist. The law is not clear on whether or not such distribution shops are allowed, but cities (such as East Lansing and Kalamazoo) have begun licensing them nonetheless. Without some clarification from the Court or the legislature, the State will end up with a patchwork of conflicting regulatory regimes. Many are advocating for a system similar to Colorado's, where dispensaries are regulated by the state. The idea is that the state can then pay for administration of the law through tax revenue. Hopefully, this is something that Michigan's legislature will take up over the summer.

Additionally, there is confusion as to what exactly constitutes as bona-fide doctor patient relationship. The law does not spell out exactly how much time someone needs to spend with a doctor for them to recommend the patient for medical marijuana use. This seems only to fuel the opposition and is yet another issue that the state needs to clarify, hopefully as soon as this summer.