STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
April 17, 2012
9:05 a.m.
Plaintiff-Appellant,
v
No. 301443
Grand Traverse Circuit Court
LC No. 2010-028194-AR
RODNEY LEE KOON,
Defendant-Appellee.
Before: SAWYER, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ.
SAWYER, P.J.
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).1 We conclude that it does.
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 to 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 previously. A blood test showed that defendant had
active THC in his system. Defendant was charged with operating a motor vehicle with a
Schedule 1 controlled substance in his body2 under the “zero tolerance” law. The district court
concluded that the MMMA protected defendant 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 now appeals by leave granted.
This question can be resolved by looking to the pertinent statutory provisions and
considering the basic rules of statutory construction. Like the interpretation of other statutes, our
duty when analyzing an initiative law is to ascertain and effectuate the intent of the people,
1
MCL 333.26421 et seq.
2
MCL 257.625(8).
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presuming that the people meant what the statute plainly expresses, giving all words their
ordinary and customary meaning as the voters would have understood them.3
MCL 257.625(8) 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.
Under MCL 333.7212(1)(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 . . . .
MCL 333.26423(e) defines “medical use” of marijuana as
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.4 Thus, the
MMMA permits the medical use of marijuana, but it recognizes that the use of marijuana is
inconsistent with engaging in some activities at the same time as the use of the marijuana. This
is certainly not an irrational provision. For example, it is not uncommon for a medication,
whether prescription or over the counter, to be accompanied by a warning not to drive while
3
People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010).
4
MCL 333.26427(b)(4).
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using the medication. The problem that develops in this case is that, while MCL 333.26423
defines a number of terms used in the MMMA, it does not define the phrase “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 Motor
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 it did not.
Therefore, marijuana remains a Schedule 1 controlled substance. Furthermore, while the
MMMA does not provide a definition of “under the influence of marijuana,” MCL 257.625(8)
essentially does, establishing 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.
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” under 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 repeals by implication MCL
257.625(8) as applied to marijuana. But it is well established that repeal by implication is
disfavored.5 To do so, there must be a clear legislative intent to repeal, and there must not be
another reasonable construction.6
But 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. Moreover, this is
not in conflict with the MMMA. 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,
but it also recognizes other circumstances in which the medical use of marijuana is not permitted
by the MMMA. For example, any medical use of marijuana is not permitted on a school bus, nor
does it permit smoking marijuana, even for medical use, on public transportation.7
Indeed, this points out one of the flaws in the argument that defendant has the right to
“internally possess” marijuana while driving. While the MMMA does include the term “internal
possession” within its definition of “medical use,” that does not equate to a right to internally
possess marijuana under any circumstance. As noted above, the MMMA specifically does not
permit any medical use of marijuana on a school bus, which presumably includes even internal
possession. Similarly, under other circumstances, some, but not all, types of medical use of
marijuana is permitted; the example here being that of public transportation, where one can
presumably internally possess it, but not smoke it.
5
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996).
6
Id.
7
MCL 333.26427(b)(2)(A) and (3)(A).
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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.8 In other words, the act grants immunity from arrest and prosecution, rather than
the granting of a right. Thus, contrary to defendant’s claim, he does not have a blanket right to
internally possess medical marijuana.9
The point being that the MMMA does not permit all types of medical use of marijuana
under all circumstances. There are circumstances under which some uses are permitted and
others under which no use is permitted. If the drafters of the MMMA wanted to include
immunity for the operation of a motor vehicle in section 4, the act would have to have an explicit
grant of immunity either in MCL 333.26424(a) or in MCL 333.26423(e). It does not. Indeed, it
explicitly does not permit the operation of a motor vehicle while under the influence of
marijuana. And in the Motor Vehicle Code, the Legislature has provided a definition of what
constitutes being under the influence of marijuana: the presence of any amount of a Schedule 1
controlled substance, including marijuana. That is to say, while “internally possessing” it.
The MMMA does not provide a protection against prosecution for violating MCL
257.625(8). Driving is a particularly dangerous activity; Schedule 1 substances are considered
particularly inimical to a drivers’ ability to remain in maximally safe control of their 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 may be given at any trial in this case.
8
See People v King, 291 Mich App 503, 507-509; 804 NW2d 911 (2011), lv gtd 489 Mich 957
(2011); see also Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914, 922 (WD Mich, 2011).
9
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 misconstrues the MMMA. The MMMA does not codify a right
to use marijuana, nor does it grant any citizen the “right” to use or possess marijuana. While this
may seem strange to anyone who has encountered the act, it is the process set up by what many
have referred to as an inartfully drafted act. What the MMMA does is set up a process where
certain individuals cannot be arrested or prosecuted for their law-breaking. These protections, or
immunities from lawbreaking, are very limited in scope. In essence, defendant is asking this
Court to extend these protections to other activities, such as operating a motor vehicle, a boat, or
an airplane. We respectfully decline; it is the Legislature’s job to expand the law, not the court’s
responsibility.
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ David H. Sawyer
/s/ Peter D. O’Connell
/s/ Amy Ronayne Krause
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