PEOPLE OF MI V DELORES MARIE DERROR

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION July 12, 2005 9:05 a.m. Plaintiff-Appellant, v No. 258346 Grand Traverse Circuit Court LC No. 04-009475-FH DELORES MARIE DERROR, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v No. 259315 Jackson Circuit Court LC No. 04-000365-FH DENNIS WAYNE KURTS, Defendant-Appellee. Before: Cooper, P.J., and Jansen and Hoekstra, JJ. PER CURIAM. In these consolidated appeals, the prosecution appeals by leave granted1 two trial court orders ruling that “carboxy THC”2 is not a schedule 1 controlled substance under MCL 1 In Docket No. 258346, this Court granted the prosecution’s motion to file an interlocutory appeal and stayed the trial court proceedings. People v Derror, unpublished order of the Court of Appeals, entered October 21, 2004 (Docket No. 258346). In Docket No. 259315, this Court granted the prosecution’s motion to file an interlocutory appeal after one count—violation of MCL 257.625(8)—was dismissed before trial. Defendant proceeded to trial on the remaining counts. People v Kurts, unpublished order of the Court of Appeals, entered December 27, 2004 (Docket No. 259315). 2 Carboxy THC is known by many names and was also referred to as “11 Carboxy THC” and “11-COOH-THC” in the lower court proceedings. -1- 333.7212(1)(d) for purposes of punishing violations of MCL 257.625(8), which prohibits the operation of a motor vehicle with any amount of a schedule 1 controlled substance in the body. In Docket No. 258346, the prosecution also appeals a trial court order ruling that, pursuant to MCL 257.625(4) and MCL 257.625(5), the prosecution must prove that the presence of a controlled substance in a defendant’s body is a proximate cause of an accident resulting in death or serious injury. In Docket No. 259315, the prosecution appeals the dismissal of the charges against defendant, Dennis Wayne Kurts, based on the insufficiency of the evidence. We agree with the trial courts’ determinations that carboxy THC is not a schedule 1 controlled substance. However, we disagree with the trial court in Docket No. 259315 that the presence of this substance in a defendant’s blood is not evidence of the presence of THC,3 a schedule 1 controlled substance. In Docket No. 258346, we agree with the trial court’s determination that the prosecution must prove beyond a reasonable doubt that the presence of a controlled substance in a defendant’s body was a proximate cause of the accident. Accordingly, we affirm the trial court’s orders in Docket No. 258346, and reverse the trial court’s order dismissing the case against Mr. Kurts in Docket No. 259315. We, therefore, remand in that case for further proceedings consistent with this opinion. I. Facts and Procedural History In Docket No. 258346, defendant Delores Marie Derror was charged with violating MCL 257.625(8) for driving under the influence of marijuana, a schedule 1 controlled substance, and with violating MCL 257.625(4) and MCL 257.625(5) for causing a motor vehicle accident resulting in death and serious injury. Ms. Derror was driving eastbound on a snow and slushcovered M-72 at approximately 6:00 p.m. on a snowy January 11, 2004, when she crossed into oncoming traffic and collided with another vehicle. The front-seat passenger was killed, two children riding in the back seat were paralyzed, and a third child received a broken neck and jaw. Deputy sheriffs found five marijuana cigarettes in Ms. Derror’s purse while looking for identification. Ms. Derror later admitted that she had smoked one marijuana cigarette at 2:00 p.m. Two separate blood samples were analyzed for the presence of illegal substances. The first blood sample drawn contained thirty-eight nanograms per milliliter of carboxy THC, and the second contained thirty-one nanograms per milliliter of the same substance. In Docket No. 259315, Mr. Kurts was also charged with operating a motor vehicle under the influence of marijuana in violation of MCL 257.625(8). Mr. Kurts was stopped at approximately 9:45 p.m. on February 25, 2004, for driving erratically. The officer initiating that stop noted the Mr. Kurts smelled of alcohol and that his eyes were glassy and bloodshot. Mr. Kurts admitted to drinking two beers and was asked to exit the vehicle. After the officer discovered a marijuana pipe in Mr. Kurts’ pocket during a pat-down search, Mr. Kurts admitted 3 THC, or tetrahydrocannabinol, is the psychoactive ingredient of marijuana. People v Sinclair, 387 Mich 91, 105-106; 194 NW2d 878 (1972); People v Riddle, 65 Mich App 433, 436 n 1; 237 NW2d 491 (1975). -2- to smoking marijuana only a half-hour earlier.4 Mr. Kurts’ blood contained eight nanograms per milliliter of carboxy THC, and .07 grams of alcohol per 100 milliliters. In each case, both the prosecution and defense presented the testimony of expert witnesses at pretrial evidentiary hearings regarding the characteristics of marijuana, THC, and carboxy THC. The experts agreed that carboxy THC is a “metabolite,” or byproduct of metabolism,5 created in the human body during the body’s biological process of converting marijuana into a water-soluble form that can be excreted more easily. Its presence in the blood conclusively proves that a person ingested THC at some point in time. However, carboxy THC itself has no pharmacological effect on the body and its level in the blood correlates poorly, if at all, to an individual’s level of THC-related impairment. In fact, carboxy THC could remain in the blood long after all THC was gone, as THC quickly leaves the blood and enters the body’s tissues.6 In Docket No. 258346, the trial court determined, following a pretrial evidentiary hearing, that the Legislature did not intend to include carboxy THC as a schedule 1 controlled substance because it has no pharmacological effect on the human body. The court did not dismiss the case against Ms. Derror, however, because a jury could determine from the presence of this substance in her blood that she had THC in her body at the time of the accident. Although the prosecution argued that MCL 257.625(8) is a strict liability statute, the court ordered that the prosecution would be required to establish at trial that the presence of the THC in Ms. Derror’s blood was a proximate cause of the accident for purposes of MCL 257.625(4) and MCL 257.625(5). In Docket No. 259315, the trial court granted Mr. Kurts’ motion to dismiss his charged violation of MCL 257.625(8). Following an evidentiary hearing, the court determined that the Legislature did not intend to include carboxy THC as a schedule 1 controlled substance because it has no pharmacological effect or medicinal value. As the level of carboxy THC in a person’s blood bears a poor correlation to the level of THC in a person’s body, the court found that there was insufficient evidence for a jury to find that Mr. Kurts was operating a motor vehicle with a controlled substance in his body at the time of his traffic stop. These appeals followed. II. Nature of Carboxy THC This case presents an issue of first impression—whether carboxy THC, a metabolite of a schedule 1 controlled substance, can be considered a schedule 1 controlled substance itself for 4 The officer also found a baggie containing “suspected” marijuana. 5 See People v Hardy, 188 Mich App 305, 307 n 1; 469 NW2d 50 (1991), mod 471 NW2d 619 (1991). 6 The prosecution’s expert witness in Docket No. 259315, Dr. Felix Adatsi, testified more specifically that the presence of carboxy THC in the blood indicates marijuana use within the last twenty-four hours and its presence in the urine indicates use within the last week. The defense expert witness in Docket No. 258346, Dr. Daniel McCoy, testified that THC leaves the blood within two hours, but could be found in the body’s tissues even a day later. -3- purposes of proceeding against a defendant under MCL 257.625(8). Issues of statutory interpretation are questions of law subject to review de novo on appeal.7 The primary goal in statutory construction is to ascertain and give effect to the intent of the Legislature.8 It is only when statutory language is ambiguous that we are permitted to look beyond the statute to determine the Legislature’s intent.9 When construing an ambiguous statute, “[t]he court must consider the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the statute’s purpose, but should also always use common sense.”10 In this regard, courts should seek to avoid a construction that would produce absurd results, injustice, or prejudice to the public interest.11 Defendants were charged with violating MCL 257.625(8), which provides: A person, whether licensed or not, shall not operate a vehicle upon a highway . . . 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 . . . .[12] Marijuana, spelled “marihuana” in the statute, is expressly included as a schedule 1 controlled substance in MCL 333.7212(1)(c). This statute does not expressly include carboxy THC, by any name, as a schedule 1 controlled substance. MCL 333.7212(1)(d) further provides: Except as provided in subsection (2), synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis and synthetic substances, derivatives, and their isomers with similar chemical structure or pharmacological activity, or both, such as the following, are included in schedule 1: (i) ∆1 cis or trans tetrahydrocannabinol, and their optical isomers. (ii) ∆6 cis or trans tetrahydrocannabinol, and their optical isomers. (iii) ∆3,4 cis or trans tetrahydrocannabinol, and their optical isomers.[13] Carboxy THC does have a similar chemical structure to THC.14 However, as carboxy THC is created during the body’s metabolism of that substance, it clearly is a natural, rather than 7 Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). 8 Weakland v Toledo Engineering Co, 467 Mich 344, 347; 656 NW2d 175 (2003). 9 DiBenedetto v W Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000). 10 Morris & Doherty, PC v Lockwood, 259 Mich App 38, 44; 672 NW2d 884 (2003). 11 Id. 12 MCL 257.625(8). 13 MCL 333.7212(1)(d). -4- synthetic, byproduct of THC.15 Accordingly, we find MCL 333.7212(1)(d) inapplicable and must determine if carboxy THC is included in the definition of marijuana as a classified schedule 1 controlled substance. Marijuana is defined as “all parts of the plant Canabis Sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” As a byproduct of the body’s metabolism of marijuana, carboxy THC is clearly not a part of the actual plant nor does it fit within the common definitions of a compound, manufacture, salt, mixture, or preparation.16 The Legislature did not define “derivative” in the public health code. The Michigan Supreme Court has given us permission to use the common dictionary to define terms. However, it is unnecessary to do so in this case as we can determine the Legislature’s intent by other means. We note that the Legislature could have included metabolites in the definition of marijuana or schedule 1 controlled substances if it so intended. Under the probate code, for example, certain parties are required to report if “a newborn infant has any amount of alcohol, a controlled substance, or a metabolite of a controlled substance in his or her body.”17 “[T]he Legislature is presumed to be aware of all existing statutes when enacting new laws.”18 As the Legislature expressly included metabolites in another statute, we must assume that it intended to expressly exclude the regulation of these substances in the public health code.19 We also note that those Arizona and Indiana statutes cited by the prosecution that prohibit the operation of a motor vehicle under the influence of a controlled substance expressly include metabolites and, therefore, have no persuasive effect on our interpretation of the relevant statutes in this case.20 We also find that controlling the presence of carboxy THC in a defendant’s body does not comport with the purpose of the public health code. The general purpose of the code is to (…continued) 14 Dr. McCoy testified that innumerous compounds have a similar chemical structure to THC and yet have no effect on the body. Furthermore, the experts agreed that some metabolites of THC do have a pharmacological effect on the body, while others, such as carbon dioxide, do not. 15 The Legislature is presumed to know the rules of grammar and we must, therefore, consider the placement of the word “synthetic” before each series intentional. See Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308, 315; 683 NW2d 148 (2004). 16 It is not contended that carboxy THC could be chemically classified as a salt. Furthermore, the dictionary definitions of compound, manufacture, mixture, and preparation suggest the creation of a substance or a combination of elements, rather than the breakdown of one substance into others as occurs during the metabolic process. See Random House Webster’s Unabridged Dictionary (2d ed). 17 MCL 722.623a; People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). 18 Nemeth v Abonmarche Development, Inc, 457 Mich 16, 43; 576 NW2d 641 (1998). 19 See Farrington v Total Petroleum, Inc, 442 Mich 201, 209-210; 501 NW2d 76 (1993); People v Hock Shop, Inc, 261 Mich App 521, 528; 681 NW2d 669 (2004). 20 ARS 28-692(A)(3); Ind Code 9-30-5-5(a)(2). -5- protect “the health, safety, and welfare of the people of this state.”21 To meet that goal, the Legislature provided the administrator with the following guidance in determining how to classify a substance: In making a determination regarding a substance, the administrator shall consider all of the following: (a) The actual or relative potential for abuse. (b) The scientific evidence of its pharmacological effect, if known. (c) The state of current scientific knowledge regarding the substance. (d) The history and current pattern of abuse. (e) The scope, duration, and significance of abuse. (f) The risk to the public health. (g) The potential of the substance to produce psychic or physiological dependence liability. (h) Whether the substance is an immediate precursor of a substance already controlled under this article.[22] The Legislature further provided that “After considering the factors enumerated in section 7202, the administrator shall make findings with respect thereto and promulgate a rule controlling the substance if the administrator finds the substance has a potential for abuse.”23 Furthermore, “The administrator shall place a substance in schedule 1 if it finds that the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.”24 It is undisputed that carboxy THC has no pharmacological effect on the human body and, therefore, it can have no potential for abuse, history of abuse by members of the public, or produce chemical dependence. It is also undisputed that THC is the precursor of carboxy THC, and that carboxy THC is not the immediate precursor of any controlled substance. As carboxy THC itself is a benign substance, it does not meet the criteria for classification as a schedule 1 controlled substance, or for any classification of controlled substance.25 Accordingly, its control 21 MCL 333.1111(2). 22 MCL 333.7202. 23 MCL 333.7203(1). 24 MCL 333.7211. 25 In fact, Dr. Evans testified that carboxy THC can be purchased commercially without a license from the Drug Enforcement Agency. -6- could not be the object of the public health code.26 Both the trial courts, therefore, properly determined that carboxy THC is not a schedule 1 controlled substance. However, the trial courts reached divergent rulings regarding whether a jury could find beyond a reasonable doubt that defendants had THC present in their bodies at the time of their violations from the presence of carboxy THC in their blood. In Docket No. 259315, we find that the trial court erroneously answered this question in the negative and dismissed the charged violation of MCL 257.625(8) against Mr. Kurts. We review a trial court’s ruling on a motion to dismiss charges for an abuse of discretion.27 The evidence presented by the prosecution and defense expert witnesses reveals that the presence of carboxy THC in a person’s blood conclusively establishes the prior ingestion of THC. It is irrelevant that Dr. McCoy testified that the level of THC in Mr. Kurts’ body and related THC-impairment at the time of his traffic stop could not be determined with certainty, based on the level of carboxy THC in his blood. Mr. Kurts admitted to smoking marijuana only one half-hour before he was arrested. In light of this admission and the scientific evidence, although disputed, regarding the significance of the presence of carboxy THC in the blood, there clearly was sufficient evidence to present this charge to the jury. Accordingly, the trial court abused its discretion in dismissing this charge against Mr. Kurts. III. Causation In Docket No. 258346, Ms. Derror was also charged with violating MCL 257.625(4) and MCL 257.625(5), which provide for an enhanced sentence for causing death or serious injury while driving impaired. These subsections provide in relevant part: (4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime . . . . (5) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a felony . . . .[28] The prosecution contends that it need not prove a causal relationship between the presence of the controlled substance in Ms. Derror’s body and the accident. As MCL 257.625(8) proscribes the operation of a motor vehicle with any amount of a controlled substance in the operator’s body, 26 We also note that this Court held that a former statutory section defining marijuana under the Controlled Substances Act, MCL 335.305(3), included “all forms of marijuana containing the hallucinogenic or euphoric chemical common in all so so-called species or varieties of the plant.” Riddle, supra at 437. Carboxy THC is a metabolite of that chemical and, as previously noted, has no hallucinogenic or euphoric qualities itself. 27 People v Stephen, 262 Mich App 213, 218; 685 NW2d 309 (2004). 28 MCL 257.625. -7- the statute imposes strict liability. Therefore, the prosecution argues that it is not required to establish impairment causing an accident. The Michigan Supreme Court held in People v Lardie29 that the Legislature did not intend to impose strict liability on an individual who “by the operation” of his or her vehicle while under the influence of alcohol “causes the death of anther person” in violation of MCL 257.625(4).30 The defendant’s voluntary and purposeful operation of the vehicle while under the influence must have been “a substantial cause of the victim’s death.”31 The statute was “designed to punish drivers when their drunken driving caused another’s death.”32 Imposing a penalty on a driver when the fatal accident would have occurred regardless of that intoxication would, therefore, fail to serve the purpose of the statute.33 We see no reason to interpret the identical language of MCL 257.625(5) differently. Furthermore, there is no indication in the plain language of these subsections that the Legislature intended to treat violations of subsection (8) differently than violations of subsections (1) or (3). Accordingly, the trial court properly determined that the prosecution must prove that the presence of a controlled substance in Ms. Derror’s body was a proximate cause of the accident. We note that the Michigan Supreme Court will revisit its decision in Lardie in the very near future. The Court granted leave to appeal in People v Schaefer34 and People v Large.35 The Court will consider: (1) whether the “substantial” cause language in People v Lardie . . . is consistent with the statute; (2) whether MCL 257.625(4)’s requirement that the prosecutor establish that the defendant’s “operation of that motor vehicle causes the death of another person” requires the prosecutor to establish that the defendant’s operation of the motor vehicle was affected by his intoxicated state; (3) whether the statute obligates the prosecutor to show that the defendant’s driving at the time of the accident was a proximate cause of another person’s death; (4) whether it is sufficient that the prosecutor establish only that the defendant decided to drive while intoxicated, and that a death resulted; and (5) if so, whether the statute violates the equal protection clause of the Michigan Constitution, Const 1963, art 1, § 2, or the equal protection clause of the federal Constitution, US Const, Am XIV, or is otherwise unconstitutional.[36] 29 People v Lardie, 452 Mich 231; 551 NW2d 656 (1996). 30 Id. at 256-260. 31 Id. at 256, 259-260. 32 Id. at 257 (emphasis in original). 33 Id. at 257-258. 34 People v Schaefer, 471 Mich 923; 689 NW2d 230 (2004). 35 People v Large, 471 Mich 923; 689 NW2d 229 (2004). 36 Schaefer, supra; Large, supra. -8- However, “[a] decision of the Supreme Court is binding upon this Court until the Supreme Court overrules itself.”37 The Supreme Court has yet to do so and we remain bound by Lardie. We affirm in Docket No. 258346. In Docket No. 259315, we affirm the trial court’s determination that carboxy THC is not a schedule 1 controlled substance. However, we reverse the court’s dismissal of the charged violation of MCL 257.625(8) against Mr. Kurts based on its erroneous determination that the presence of this substance in his body was not evidence of the presence of a schedule 1 controlled substance in his body at the time of the alleged violation. We, therefore, remand for further proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Jessica R. Cooper /s/ Kathleen Jansen /s/ Joel P. Hoekstra 37 O’Dess v Grand Trunk W R Co, 218 Mich App 694, 700; 555 NW2d 261 (1996). -9-

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