DocketNumber: Docket No. 301443
Citation Numbers: 296 Mich. App. 223
Judges: Connell, Krause, Sawyer
Filed Date: 4/17/2012
Status: Precedential
Modified Date: 9/9/2022
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).
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 a schedule 1 controlled substance in his body
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)(ia) of the public health code, 1978 PA 368, MCL 333.7214.
Under MCL 333.7212(l)(c), 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 ....
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 not apply to operating a motor vehicle while 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
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 disfavored.
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 permitted on a school bus,
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 lawbreaking.
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 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
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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.
MCL 257.625(8).
People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010).
MCL 333.26427(b)(4).
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996).
Id.
MCL 333.26427(b)(2)(A).
MCL 333.26427(b)(3)(A).
MCL 333.26424(e).
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).
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 miscon