PEOPLE OF MI V DENNIS WAYNE KURTSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
September 6, 2005
Grand Traverse Circuit Court
LC No. 04-009475-FH
DELORES MARIE DERROR,
PEOPLE OF THE STATE OF MICHIGAN,
Jackson Circuit Court
LC No. 04-000365-FH
DENNIS WAYNE KURTS,
Official Reported Version
Before: Cooper, P.J., and Jansen and Hoekstra, JJ.
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
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 People v Derror, unpublished order of the Court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 People v Kurts, unpublished order of the Court of Appeals, entered December 27, 2004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).
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.
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 People v Derror, 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 People v Kurts, 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 Kurts 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. Pursuant to the Michigan Supreme Court's recent decision in the companion cases of
People v Schaefer and People v Large,4 we find that the trial court in Derror improperly
determined that the prosecution must prove beyond a reasonable doubt that a defendant's
"decision to drive with any amount of a controlled substance in her body produced a change in
her operation of the vehicle that was a substantial cause of the victim's death." We presume from
the opinion that the Supreme Court will apply this case retroactively.5 Accordingly, we affirm in
part and reverse in part the trial court's orders in Derror, and reverse the trial court's order
dismissing the case against Mr. Kurts in Kurts. We, therefore, remand in both cases for further
proceedings consistent with this opinion.
I. Facts and Procedural History
In Derror, 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 slush-covered M72 at approximately 6:00 p.m. on a snowy January 11, 2004, when she crossed into oncoming
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).
People v Schaefer, 473 Mich 418; 703 NW2d 774 (2005).
As Justice Young noted in the opinion:
Although it is true . . . that prior precedent from the United States Supreme
Court and this Court has held that there are due process limitations on the
retroactive application of judicial interpretations of criminal statutes that are
"unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue," [People v Doyle, 451 Mich 93, 101; 545 NW2d 627
(1996),] we believe that it is not "indefensible or unexpected" that a court would,
as we do today, overrule a case that failed to abide by the express terms of a
statute. [Schaefer, supra at 444 n 80.]
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 38 nanograms per milliliter of carboxy THC, and the second contained
31 nanograms per milliliter of the same substance.
In Kurts, 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's pocket during a pat-down search, Mr. Kurts admitted to smoking marijuana
only a half-hour earlier.6 Mr. Kurts's blood contained eight nanograms per milliliter of carboxy
THC, and 0.07 grams of alcohol per 100 milliliters.
In each case, both the prosecution and the 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,7 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 has gone, as THC quickly leaves the blood and enters the body's
In Derror, 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).
The officer also found a bag containing "suspected" marijuana.
See People v Hardy, 188 Mich App 305, 307 n 1; 469 NW2d 50 (1991).
The prosecution's expert witness in Kurts, Dr. Felix Adatsi, testified more specifically that the
presence of carboxy THC in the blood indicates marijuana use within the last 24 hours and its
presence in the urine indicates use within the last week. The defense expert witness in Derror,
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.
In Kurts, the trial court granted Mr. Kurts's 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
These cases present 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
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.9 The primary goal in
statutory construction is to ascertain and give effect to the intent of the Legislature.10 It is only
when statutory language is ambiguous that we are permitted to look beyond the statute to
determine the Legislature's intent.11 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."12 In this regard, courts should seek to avoid a construction that would produce absurd
results, injustice, or prejudice to the public interest.13
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 . . .
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
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Weakland v Toledo Engineering Co, 467 Mich 344, 347; 656 NW2d 175 (2003).
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
Morris & Doherty, PC v Lockwood, 259 Mich App 38, 44; 672 NW2d 884 (2003).
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.
Carboxy THC does have a similar chemical structure to THC.16 However, as carboxy THC is
created during the body's metabolism of that substance, it clearly is a natural, rather than
synthetic, byproduct of THC.17 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 . . . ."18 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.19 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
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
MCL 333.7212(1)(d) (emphasis added).
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.
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).
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 Taber's Cyclopedic Medical Dictionary
controlled substance, or a metabolite of a controlled substance in his or her body . . . ."20 "[T]he
Legislature is presumed to be aware of all existing statutes when enacting new laws."21 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.22 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.23
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
protect "the health, safety, and welfare of the people of this state."24 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
(h) Whether the substance is an immediate precursor of a substance
already controlled under this article.
Nemeth v Abonmarche Development, Inc, 457 Mich 16, 43; 576 NW2d 641 (1998).
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).
ARS 28-1381(A)(3); Ind Code 9-30-5-5(a)(2).
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."26 Furthermore, "The
administrator shall place a substance in schedule 1 if it [sic] 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."27
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.28 Accordingly, its control
could not be the object of the Public Health Code.29 Both 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
alleged 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.30 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's 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.
In fact, Dr. Evans testified that carboxy THC can be purchased commercially without a license
from the Drug Enforcement Agency.
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-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.
People v Stephen, 262 Mich App 213, 218; 685 NW2d 309 (2004).
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 . . . .
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,
the statute imposes strict liability. Therefore, the prosecution argues that it is not required to
establish impairment causing an accident.
The Michigan Supreme Court previously held in People v Lardie32 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).33 Pursuant to Lardie, 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."34 The statute was "designed to punish drivers when their drunken driving caused
another's death."35 Therefore, the Court found that imposing a penalty on a driver when the fatal
accident would have occurred regardless of that intoxication would fail to serve the purpose of
The Michigan Supreme Court recently overruled this holding in the companion cases of
People v Schaefer and People v Large.37 The Court found that, according to the plain language
of the statute, "it is the defendant's operation of the motor vehicle that must cause the victim's
People v Lardie, 452 Mich 231; 551 NW2d 656 (1996).
Id. at 256-260.
Id. at 256, 259-260.
Id. at 257 (emphasis in original).
Id. at 257-258.
Schaefer, supra at 433-434.
death, not the defendant's 'intoxication.'"38 Although the defendant's intoxication is an element
of the offense, "it is not a component of the causation element of the offense."39 However,
operating under the influence causing death is not a strict liability offense as suggested by the
prosecution. In order to establish the causation element, the prosecution must prove that the
defendant's operation of the vehicle was both a factual and proximate cause of the victim's
The concept of factual causation is relatively straightforward. In
determining whether a defendant's conduct is a factual cause of the result, one
must ask, "but for" the defendant's conduct, would the result have occurred? If
the result would not have occurred absent the defendant's conduct, then factual
To establish proximate causation, the prosecution must show that the victim's injury was a
"'direct and natural result' of the defendant's actions."42 However, an intervening cause may
supersede the defendant's act "as a legally significant causal factor" and break the causal chain.43
In order to supersede the defendant's act, the intervening cause must be "foreseeable based on an
objective standard of reasonableness."44 "While an act of God or the gross negligence or
intentional misconduct by the victim or a third party will generally be considered a superseding
cause, ordinary negligence by the victim or a third party will not be regarded as a superseding
cause because ordinary negligence is reasonably foreseeable."45
Although Lardie, Schaefer, and Large involve violations of MCL 257.625(4) alone, 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). While the
trial court properly determined the prosecution's burden at that time, we are bound to follow the
Michigan Supreme Court's decision in Schaefer and Large.46 Accordingly, the prosecution must
establish that Ms. Derror's operation of her vehicle, rather than the presence of a controlled
substance in her body, was both a factual and proximate cause of the death and serious injuries
of the victims.
Id. at 438.
Id. (emphasis in original).
Id. at 450.
Id. at 435-436.
Id. at 436-437.
Id. at 437.
Id. at 438-439 (emphasis in original).
O'Dess v Grand Trunk W R Co, 218 Mich App 694, 700; 555 NW2d 261 (1996).
In Derror, we affirm the trial court's determination that the presence of carboxy THC
may be evidence of a schedule 1 controlled substance in Ms. Derror's body at the time of the
alleged violation. To the extent that the trial court required the prosecution to establish causation
under MCL 257.625(4) and MCL 257.625(5) consistent with Lardie, we reverse the trial court's
order in that case. In Kurts, 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 both
cases for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Jessica R. Cooper
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra