A Michigan judge at the 52-4 District Court in Troy, Michigan 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 the case, which brought about this decision, the charged defendant was pulled over for speeding and arrested for not having a driver’s license. 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.
The defendant 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.
The Michigan Supreme Court had previously ruled that 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.
District Court Judge Kirsten Nielsen Hartig of the 52-4 District Court agreed with the defendant’s argument. The argument was it was a violation of the Equal Protection Clause, 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.
Prior to this decision, we had two classes of drivers. The first class were 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.
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.
If you've been charged with Operating with the Presence of a Controlled Substance, you will fall under one of two classes. You should speak to a criminal defense lawyer about your options, and whether
In the case, which brought about this decision, the charged defendant was pulled over for speeding and arrested for not having a driver’s license. 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.
The defendant 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.
The Michigan Supreme Court had previously ruled that 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.
District Court Judge Kirsten Nielsen Hartig of the 52-4 District Court agreed with the defendant’s argument. The argument was it was a violation of the Equal Protection Clause, 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.
Prior to this decision, we had two classes of drivers. The first class were 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.
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.
If you've been charged with Operating with the Presence of a Controlled Substance, you will fall under one of two classes. You should speak to a criminal defense lawyer about your options, and whether
