Articles Posted in Marijuana Laws

The Criminal Defense Attorney Association of Michigan (CDAM) has asked Michigan DUI Lawyer Patrick Barone to present a 1-hour Webinar to criminal defense lawyers seeking to learn about recent changes to Michigan law impacting how intoxicated driving cases are investigated at the roadside.

The seminar, entitled Michigan Law Update: Roadside Drug Testing – What You Need to Know, will include a detailed analysis of Michigan’s roadside saliva drug testing program. In this workshop, Mr. Barone will teach other lawyers how to address these preliminary screening tests in court, and how to avoid defense traps that may befall the unwary.

In recent years, law enforcement at all levels of government, State and National, have begun focusing on the investigation and arrest of drivers intoxicated by drugs other than alcohol. Interest in drugged driving has increased with the advent of medical and recreational marijuana, and the saliva swab roadside testing program is designed to facilitate drugged driving arrests.

Commission Recommends No Legal Limit for Marijuana in Michigan

The Impaired Driving Safety Commission (IDSC) has recently recommended that Michigan lawmakers take no action toward the creation of a legal limit for marijuana.  In summary, the Commission believes that the science does not support a one size fits all legal limit threshold for drivers who have used marijuana.

The IDSC was established in 2017 by Michigan Compiled Laws sec. 28.793.  According to subsection 2 of this law:

(2) The commission shall research and recommend a scientifically supported threshold of THC bodily content to provide evidence for per se impaired driving in this state. The commission shall exist until it submits the final report.

Slow Driving, Glazed Dilated Eyes and Odor Sufficient to Prove Marijuana Impairment

Michigan’s recreational and medical marijuana laws continue to be amended, modified and refined.  These changes have helped to clarify many aspects of these laws, but when it comes to driving, a big unanswered question remains; how do the police and prosecutor prove impairment from Marijuana?  There is no legal limit for marijuana, and many question the efficacy of field sobriety tests in reliably predicting intoxication.

At present, regarding this issue, Michigan’s recreational marijuana law, known formally as the Marihuana Cultivation and Taxation Act, indicates in sec. 4 only that Michigan law does not permit:

a) operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana; and b) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way.

Operating an Unlicensed Marihuana Facility Now a Crime in Michigan

Effective January 1, 2019, it is now a crime to operate a marihuana facility in Michigan without a license.  The new law was signed by Governor Snyder on December 28, 2019 and was part of a host of changes made to the Michigan Medical Marihuana Licensing Act (MMMLA) just prior to the Governor leaving office. The new section is found at MCL 333.27407a, and provides that, depending on the type of violation, the person who unlawfully operates a marihuana facility is guilty of either a misdemeanor or a felony punishable by up to four years in prison.

The Michigan Medical Marihuana Licensing Act creates five different kinds of marihuana licenses.  The term “marihuana facility” is defined as a location at which a licensee is licensed to operate under this act. This term therefore includes a facility where marihuana is grown, processed, tested or sold (provisioned). This term could also theoretically apply to a facility used to house trucks or otherwise used to do business as a marihuana transporter.

According to this new law, it is a now a crime for a person, including a corporation, to hold itself out as a marihuana facility if the person does not hold a license to operate that marihuana facility or if the person’s license to operate that marihuana facility is suspended, revoked, lapsed, or void, or was fraudulently obtained or transferred to the person.

Michigan Recreational Marijuana Users Advised to Avoid Firearm Possession

Now that Michigan has legalized the recreational use of marijuana, many citizens want to know how they can possess and use recreational marijuana without running afoul of the law.  It will take many years for the legislators and courts to sort this all out, and in the meanwhile, recreational users may unknowingly place themselves at risk for criminal prosecution or other adverse legal consequences.  One area that is particularly rife with such risks is the combination of marijuana and firearms.

An example of this this risk relates to the possession or use of marijuana while also being in the possession of a firearm. While this article focuses on State law there is also an interplay between Federal law and marijuana, and this interplay is the subject of a different article on this site.

As it relates to State law, Michigan gun owners should know that it is unlawful in Michigan to possess a firearm under the influence of alcohol, drugs or a combination of alcohol and drugs. There are two separate laws that apply to this scenario, one of which appears in the criminal code and one of which appears in the firearms statute. Both contain provisions applicable to the possession of a firearm under the influence of marijuana, but there are important differences as well.

Can I Have a CPL and be a Medical or Recreational Marijuana User?

No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL).  This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights.  According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

Use of Legalized Marijuana While on Probation in Michigan

Now that Michigan’s voters have spoken, and we are now among a handful of states that allow the legalized use of marijuana, how will this change in the law impact the terms and conditions of probation?  The answer is, it depends on the judge!

When a judge determines the conditions of probation for any crime, he or she is governed by Michigan Compiled Laws section 771.3, which sets forth all the mandatory conditions of probation.  This law does not specifically state that a judge can order a person to stop using drugs or alcohol, but there is a catch-all provision, and this indicates that a judge may impose any other lawful condition of probation as the circumstances of the case require or warrant or as in his/her judgment are proper.  Thus, it is very common for judges to order people to stop using alcohol, illegal drug or even legal drugs without a prescription. For those judges who believe that the circumstances of a case require the non-use of recreational marijuana, all the judge need do is order it as a condition of probation.

This issue has already been litigated as it relates to medical marijuana, and Michigan’s courts have found that the conditions of probation can include the non-use of lawfully prescribed medical marijuana.  There seems to be no good reason why the same would not be true of recreational marijuana.

The Interplay Between Legalized Marijuana and Intoxicated Driving

Now that Michigan’s voters have approved the legal use of recreational marijuana, how will this impact Michigan’s laws against intoxicated driving?  The answer is – not very much.

As of the date of this article, it is unlawful in Michigan to drive under the influence of or while impaired by alcohol, drugs, or a combination of alcohol or drugs. This includes marijuana. However, the current state of the law in Michigan is that there are two different standards that apply to marijuana, one for medical marijuana users and one for everyone else.  For a person with a medical marijuana card who is otherwise using medical marijuana legally, the police must prove that the marijuana substantially lessened their ability to operate the motor vehicle.  For everyone else, zero tolerance applies, and simply driving with any amount of marijuana in your system is enough to violate the intoxicated driving laws.

Because marijuana has just become legal to use recreationally in Michigan, it will take some time for the intoxicated driving laws to catch up to this new reality. When they eventually do catch up, two things are likely to happen. First, marijuana will no longer be classified as a zero tolerance “any amount” drug.  This zero-tolerance standard will be replaced by a legal limit for marijuana.  Other states have set arbitrary amounts, such as 5 ng of THC (marijuana’s active ingredient), so the first thing Michigan’s lawmakers will need to decide is this arbitrary legal cut-off.  Next, Michigan’s laws of intoxicated driving, found in the Michigan traffic code’s chapter 257 will need to be amended. Until both things happen, Michigan’s recreational marijuana users will be in a sort of legal limbo while trial courts try to decide the appropriate legal standard for judges and juries to apply in the review of these cases.

Will Michigan Drug Conviction Cause a Driver’s License Suspension?

Convictions for many drug charges in Michigan will result in a suspension, restriction or even revocation of your driving privilege.  This is true even if you were not driving at the time of the offense.  The length, type, and severity of the driver license sanction will depend on the charge you are facing and on your prior record.

If you have no prior drug violations, then in most instances your driver license will be suspended for six months. You may be able to obtain restricted privileges, but no matter what, there will be no driving at all for at least the first 30 days. If you wish to obtain restricted privileges, then your lawyer will need to obtain a court order.  It is the judge presiding over your case and not the secretary of state who makes this decision.  But it is discretionary, so the judge is not obligated to give you restricted privileges just because you ask for them.  Your lawyer will explain to you all the factors that will be considered by the judge in making this decision.

On the other hand, if you have one or more prior drug convictions and these convictions happened with the prior seven years, then not only will your driver license will be suspended for one full year, you will also not be able to obtain any restricted driving privileges.

Can I Legally Use Marijuana in Canada then Drive Home to Michigan?

No. Using Marijuana lawfully in Canada puts you at risk of an intoxicated driving charge in Michigan. This is true even though Canada recently passed new federal laws effectively making it legal to possess and use marijuana.  Nevertheless, this new Canadian law may have an impact on how intoxicated driving laws are enforced here in Michigan. To understand why it’s helpful to briefly summarize Michigan’s drugged driving laws.

Until marijuana is also legalized for recreational use, Michigan’s intoxicated driving laws distinguish between the lawful and the unlawful use of marijuana.  For people who can lawfully use medical marijuana, the police and prosecutor must show that the marijuana lawfully consumed substantially lessened the ability to operate the motor vehicle.  In these circumstances, the police and prosecutor will rely on the driving observed and the roadside behavior of the motorist, including the performance on any field sobriety tasks, administered.  Sometimes a blood test result showing a high level of THC in the blood will also be used to bolster their evidence of intoxication.  If the jury believes that all of this evidence shows that the driver was intoxicated, then a conviction for OWI or Operating While Intoxicated will follow.

This level and type of proof are much different for the unlawful use of marijuana where the prosecutor need only show that at the time of driving the accused had any amount of THC in their blood.  This is a zero-tolerance crime, meaning that the prosecutor is relieved of any burden to show intoxication.  Simply having the THC in the bloodstream at the time of operation is sufficient.

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