Medical Marijuana

The case of People of the State of Michigan v. Rodney Lee Koon, appears to have answered a question many Michigan criminal practitioners face from their clients possessing a medical marijuana card. That question is whether possession of that card prevents a conviction under the “zero tolerance” provision of MCL § 257.625(8). That statute and its subsection prohibits operating a motor vehicle in Michigan with any amount of a Schedule 1 controlled substance in the driver’s body. In Koon, the Court of Appeals held this provision still applies even if the driver used marijuana under the Michigan Medical Marihuana Act (MMMA).

Koon was pulled over for speeding 83 miles an hour in a 55 mile an hour zone. The arresting officer smelled intoxicants, and defendant admitted to having consumed one beer sometime within the last couple of hours. Koon 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 previously. A blood test showed that defendant had active THC in his system. The Defendant was charged with operating a motor vehicle with a Schedule 1 controlled substance in his body under the “zero tolerance” law. The district court concluded that the MMMA protected Koon from prosecution under MCL § 257.625(8), unless the prosecution could show that defendant was actually impaired by the presence of marijuana in his body. The circuit court affirmed and concluded that the MMMA supersedes the zero tolerance law. The prosecutor then brought its appeal before the Michigan Court of Appeals.

The statute provides as follows:

(8) 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)(iv) of the public health code, 1978 PA 368, MCL 333.7214. MCL § 257.625(8).

Michigan statute defines marijuana as a Schedule 1 narcotic, notwithstanding the passage of the MMMA. The problem is that the MMMA does not define “under the influence of medical marijuana.” The appellate court reasoned that while the MMMA affords a certain degree of immunity from prosecution for possession or use of marijuana for a medical purpose, the Michigan Motor Vehicle Code, specifically prohibits operating a motor vehicle while there is any amount of marijuana in the driver’s system. The court reasoned that these two provisions are not in conflict since the MMMA (or the Michigan Legislature) could have rescheduled marijuana to one of the other schedules. However, it did not. Accordingly, marijuana remains a Schedule 1 controlled substance. In the absence of the MMMA defining “under the influence of marijuana,” MCL 257.625(8) does so define in providing that any amount of a Schedule 1 controlled substance, including marijuana, sufficiently influences a person’s driving ability to the extent that the person should not be permitted to drive. The court went on to indicate it disfavored the position that the MMMA repeals by implication MCL 257.625(8). This would be contrary to the legislative intent of both laws.

The court appears to harmonize its findings relative to MMMA and MCL 257.625(8) by providing that although individuals may be prescribed certain medications, the fact that they are prescribed does not prevent prosecution for operating a motor vehicle “while under the influence.” The passage of the MMMA does not provide an exclusion or exception to prosecution for MCL 257.625(8).

The Koon case illustrates how Michigan deals with driving with the presence of a controlled substance in a driver’s system. Michigan clients tend to have the impression a prescription or a medical marijuana card offers immunity from prosecution for operating a vehicle while intoxicated. Michigan addresses this assumption in two ways: for Schedule 1 narcotics (cocaine, heroin, ecstasy, etc.) where there is ‘any amount’ of the illicit substance, the driver can be convicted, or impairment must be proven where a client is charged with driving under the influence of a prescribed medication.
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