In People v Dupre, published December 17, 2020, the Michigan Court of Appeals issued a ruling regarding the Michigan Medical Marihuana Act (MMMA) and driving. Frankly, the decision is bad, and is not supported by reason or law. Hopefully, it will be overturned by the Michigan Supreme Court. In the meantime, medical marijuana patients who drive after consuming marijuana really need to pay attention to the precedent set by this case.
Mr. Dupre was charged with operating while visibly impaired (OWVI) (by marijuana). In the trial court, he argued that medical marijuana patients are allowed to drive while internally possessing marijuana so long as they are not operating “under the influence,” (OUI), meaning the prosecution had to prove that he was under the influence - a higher standard than visibly impaired. The trial judge disagreed, so Mr. Dupre conditionally pled guilty and appealed this issue.
The analysis by the Court of Appeals initially tracks. It explains that § 4 of the MMMA grants qualifying patients broad immunity from prosecution and that § 7 prohibits acts that negate that immunity, including OUI. Additionally, it cites§ 7(e) of the MMMA, which states that all other acts inconsistent with the MMMA do not apply to the medical use of marijuana, i.e. The MMMA supersedes other laws that penalize an individual for using medical marijuana in a way that is compliant with the MMMA. The Court also cites the Michigan Supreme Court case of People v Koon, which affirmed the authority of § 7(e) and held that the MMMA supersedes the “zero tolerance” law that allowed a driver to be convicted for driving with any amount of marijuana in their system - it held medical marijuana patients cannot be convicted under this “zero tolerance” law.
The court in Dupre stays on track as it compares the 2 offenses of OUI and OWVI. To obtain a conviction for OWVI, the prosecution has to prove that consumption of marijuana weakened or reduced a defendant’s ability to drive such that they drove with less ability than would an ordinary, careful, and prudent driver. The difference between “while visibly impaired” and “under the influence” is the degree of intoxication that the government must prove: to prove OUI, the government has to establish that the driver’s ability was substantially and materially affected by consumption of the substance; to prove visibly impaired, the government has to prove the driver’s ability to drive was so weakened or reduced by the substance that the driver drove with less ability than would an ordinary, careful and prudent driver. The bottom line is that “under the influence” requires proof of a higher degree of intoxication than “while visibly impaired.”
So, at this point the court’s analysis seems to lead to one conclusion. They have stated that the MMMA grants broad immunity from prosecution for the medical use of marijuana by a qualifying patient. They do not specifically state that medical use includes internal possession, but this is explicitly stated in the MMMA. The Court moreover states that the MMMA supersedes laws that penalize an individual for compliant medical marijuana use. Additionally, they point out that operating a vehicle under the influence of marijuana is specifically excluded from protection under the MMMA. Finally, the Court points out that, under Michigan law, OUI requires proof of a higher degree of intoxication than OWVI. It seems that the clear conclusion would be that the statute making OWVI by marijuana a crime conflicts with the MMMA insofar as the MMMA by its clear terms allows one to drive while internally possessing marijuana unless they are under the influence.
However, the Court suddenly switches directions and makes the following statement out of the blue: “Here, defendant argues that our Supreme Court’s holding in Koon only allows for an OWI conviction for persons holding a valid MMMA registration card if they are shown to be ‘under the influence.’ We do not read Koon to compel such a holding.” Why? Because “the Legislature did not approve the MMMA; the electorate did.” The court refused to give “under the influence” the same definition as it has everywhere else in the law because “the MMMA’s words must be interpreted through their ordinary and plain meaning as understood by the electors.” The frustrating thing about this nonsense is that the MMMA was drafted and voted into law by the electorate because “changing state law [would] have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.” The electorate did not want someone like Mr. Dupre arrested and convicted. But, perhaps the Court thinks the electorate is also too unsophisticated to actually know what they want.
So, what new definition of “under the influence” did the Court make up in this one specific instance? To convict, the government has to prove that the driver’s ingestion of marijuana had some effect on them such that it lowered their ability to operate a vehicle. Under this definition, the Court has made it so that medical marijuana patients can be convicted for OWVI. Again, if the Court had given it the definition that it has in other parts of the law, medical marijuana patients could not be convicted for OWVI.
I see some major issues with this ruling. It is pretty intellectually dishonest. It hinges on the ignorance it attributes to the Michigan electorate. Additionally, this holding leaves the door open for lower court judges to accept minimal “evidence” of “lowered ability.” Lower court judges for the most part already believe basically every word uttered by law enforcement. Law enforcement officers notoriously and consistently indicate a driver has failed field sobriety tests for a minor ridiculous reason. Even if the cruiser video does not bear this out, it seems that often judges will believe law enforcement over their own eyes, or they believe the video is leaving something out that the officer with their vast knowledge and experience in human behavior has allowed them to decipher. Sometimes there is no cruiser video and it is just law enforcement’s word. It will be easy peasy for law enforcement to make up minor behavior quirks and say, see look marijuana has some effect on them and of course this quirk “lowered their ability” to drive. “Judge, he had bloodshot eyes and in my vast experience and training this means he could not see as well.” Or, “Judge, I can tell she used marjijuana by the way she moves and in my vast experience and training her ability to drive is lowered even though I cannot put my finger on why, just believe me.” The MMMA was trying to prevent sh!@ like this.
So what can you do?
KNOW YOUR LIMITS - do not drive if you cannot do so safely
DECLINE FIELD SOBRIETY TESTING ALWAYS if asked by law enforcement
DO NOT MAKE ANY STATEMENTS about if or when you used marijuana
DO NOT LET YOUR CAR SMELL LIKE MARIJUANA