Operating with controlled substance statute struck
Marijuana card holders treated differently
A Troy district court judge has declared unconstitutional Michigan’s operating with the presence of a controlled substance statute, MCL 257. 625(8), finding that it treats two classes of drivers differently: those who use marijuana legally by possessing a medical marijuana card and those who use marijuana illegally.
In People v. Sulaka (MiLW 14-83018, 10 pages), the defendant was pulled over for speeding and allegedly arrested for not having his driver’s license on him. The officer smelled the odor of marijuana and the defendant was sent for a blood draw, which showed the defendant had 5 Nano grams of THC per 100 mL in his blood. He was charged with operating with the presence of a controlled substance in his system, in violation of MCL 257.625(8). The defendant did not claim to have a medical marijuana card.
The defendant moved to dismiss the charge, asserting that MCL 257.625(8) is unconstitutional because it is a strict liability statute that treats him differently than a driver who uses marijuana and has a medical marijuana card.
Under People v. Koon, decided by the Michigan Supreme Court in May (MiLW No. 06-82079, 10 pages), card-carrying medical marijuana users are permitted to drive with the presence of marijuana in their system, so long as they are not otherwise impaired by it.
Ruling from the bench, 52-4 District Court Judge Kirsten Nielsen Hartig agreed with the defendant’s argument. She said MCL 257.625(8) violates equal protection guarantees because there is no rational basis for differentiating between those who use marijuana legally by possessing a medical marijuana card and those who do not.
Hartig based her decision on the rationale in Koon and also on the Georgia Supreme Court case of People v. Love, 517 S.E.2d 53 (1999). In Love, the court said the effects of legally used marijuana are indistinguishable from the effects of illegally used marijuana. Therefore, the court said the legislative distinction between users is not directly related to the public safety purpose of the law and the Georgia statute was “an unconstitutional denial of equal protection.”
Citing the Love rationale, Hartig said that “there is an equal protection violation and I will dismiss based on the equal protection argument.”
Equal protection violation
Southfield attorney Neil Rockind, who represents the defendant, said there is “no rhyme or reason” for treating drivers who have a medical marijuana card differently than drivers who do not have a card.
“The purpose of these statutes is to promote traffic and vehicle safety,” he said. “Clearly, allowing a person to drive with a higher presence just because they have a medical marijuana card deprives others of equal protection. There’s no common sense to it.”
In moving to dismiss the case, Rockind presented conflict of laws and equal protection arguments. He asserted:
- · The application of MCL 257.625(8) to marijuana is unconstitutional. He claimed MCL 333.7211 says that schedule 1 drugs have no acceptable medical use in the United States, which contradicts the Michigan Medical Marihuana Act, MCL 333.26421 et seq.
- · The Oakland County Circuit Court’s ruling, which had reversed the district court’s dismissal of charges against the defendant, was nullified by Koon.
- · MCL 257.625(8) violates equal protection guarantees by “arbitrarily and unreasonably discriminating against non-medical marijuana users and changing the burden of proof of guilt for medical marijuana users.”
According to Rockind, MCL 333. 26421 et seq. and Koon not only separated one class of individuals into two classes, but also changed the burden of proof of guilt for these two classes.
He said the first class — drivers that test positive for marijuana who do not have a medical marijuana card — retain the burden of proof in MCL 257.625(8), which is strict liability.
But the second class, created by MCL 333.26421 et seq. and distinguished in Koon, are those drivers who test positive for marijuana and who do possess a medical marijuana card. For this second class, the burden has now changed, pursuant to Koon, from strict liability to driving under the influence of marijuana or being visibly impaired, Rockind asserted.
“In other words, MCL 333.26421 et seq. and Koon have separated one class of people into two classes and are now treating those classes differently,” Rockind stated.
He explained that drivers who can legally use marijuana can only be convicted if it is established they drove a vehicle while under the influence of marijuana to the extent that it impaired their ability to drive safely. Meanwhile, drivers who use marijuana illegally are guilty if they drive, no matter whether they were visibly impaired (i.e., strict liability).
According to Rockind, this is the crux of an equal protection violation because similarly situated individuals — that is, drivers with marijuana in their system — are being treated differently.
He also relied on Love as persuasive authority. He argued that the facts in Love are identical to those in Sulaka and, therefore, the judge should rule there is an equal protection violation, as did the Love court.
In response to Rockind’s motion to dismiss, Oakland County Assistant Prosecuting Attorney Sharon Marie Barnes made several arguments:
- · The law of the case doctrine precluded the defendant from asking the court to decide legal issues that were already determined.
- · MCL 257.625(8) has not been “repealed by implication” and is a “presumptively constitutional” statute.
Barnes did not respond to MiLW’s request for additional comment.
No rational basis
In granting Rockind’s motion to dismiss, Hartig said the law has “diametrically changed” since she first heard the case more than two years ago.
Hartig initially ruled on the defendant’s motion to dismiss in 2011, finding in favor of the defendant. That decision was immediately appealed and, during the appeal process, the Michigan Court of Appeals and the Supreme Court both decided Koon, although each court ruled differently.
“In my opinion, [Oakland Circuit Judge Colleen O’Brien] relied entirely on the Court of Appeals decision that has now been overruled by the Michigan Supreme Court,” Hartig stated. Therefore, “the law of the case does not apply.”
Hartig noted she ruled from the outset the MMMA repealed MCL 257.625(8) “by implication.”
However, she acknowledged that Koon never actually used the phrase “repeal by implication.”
“But in essence, I feel like that’s what they did without actually using that term of art,” she said. “… [I]t appears that they stridently and very openly said that there’s a direct conflict. But never said the words repeal by implication.”
The prosecution responded to this by saying, “I would just acknowledge that … the Supreme Court in Koon recognized … them both as valid laws and indicated that the medical marijuana law specifically as it relates to driving with THC superseded” MCL 257.625(8). “And so, the court even then acknowledged that … those two laws were valid … when it comes to people that are driving that have a medical marijuana card that they would not fall within the strict liability statute. …”
Rockind emphasized to the court that the defendant was charged with operating with the presence of an illegal substance in his system.
“So, if the court … were to conclude that the operating of with the presence of statute … violated the equal protection clause, then that count would have to be dismissed,” he told the judge.
Hartig said the real question was whether or not she continued to be convinced by Love that MCL 257.625(8) is unconstitutional. “[A]fter thoroughly reading the Koon case and both briefs, I am convinced that the ruling although not binding on me, there is no binding case relative to the argument of equal protection.”
Hartig said she was convinced that “for reasons such as finite jail space that it … does not make sense to convict and jail people who are not impaired. It doesn’t make sense for their insurance rates to go up. It doesn’t make sense for the criminal justice system to be bogged down by cases in which if the person is not intoxicated or impaired by the use of marijuana, that it makes no difference, and there is no rational basis for differentiating people who use marijuana illegally or people who use marijuana because they have an MMA card.”
Therefore, Hartig dismissed the charges based on an equal protection violation.
Rockind said MCL 257.625(8) is controversial because it is a strict liability statute that allows the prosecution, conviction and potential incarceration of individuals who have small or minimal amounts of THC in their blood, but who otherwise show no signs of impairment or intoxication.
“The idea that you can punish somebody with a low level of controlled substance in their system the same as if they were drunk is pathetically overreaching,” he stated. “It is preposterous.”
Rockind said there’s a “passion to prosecute” impaired drivers nowadays. “That passion has grown into a fervor that now overregulates,” he stated.
He maintained that a person should only be prosecuted if there’s evidence of impairment.
“Somewhere along the way, the police and prosecutors have decided they were given a place at the table to decide policy,” he asserted. “This has created an over prosecution and over regulation in this area.”
When asked what the impact of the Sulaka ruling will be, Rockind said he doesn’t know that answer yet.
“Are other judges willing to follow Judge Hartig’s opinion?” he asked. “That’s usually the situation with any sort of innovative analysis of a statute.”