The issue of operating a vehicle while internally possessing marijuana pursuant to the Michigan Medical Marijuana Act (“MMMA”) was tackled this week by the Michigan Supreme Court in its review of People v. Koon. Rodney Koon, a registered patient under the MMMA, was pulled over for speeding in Grand Traverse County when he voluntarily admitted to police that he was a registered medical marijuana patient, and that he had smoked marijuana five to six hours before the traffic stop. A voluntary blood test confirmed that Koon had 10 nanograms per millileter of Tetrahydrocannabinol (or THC) in his system. He was arrested and charged with operating a motor vehicle with the presence of a schedule one controlled substance in his body, pursuant to MCL 257.625(8). The MMMA protects registered patients from prosecution “for the medical use of marijuana, including internal possession.” Koon argued that the zero-tolerance provision of MCL 257.625(8) is superseded by the MMMA– to which the district and circuit courts agreed. The Court of Appeals reversed, reasoning that the legislature determined that it is unsafe for a person to operate a motor vehicle with any marijuana in his or her system. The Supreme Court noted in its opinion the many imperfections of the MMMA law, including ambiguity as to the terms “internal possession” and “medical uses.” Though the MMMA is not perfect, the law grants immunity to registered users from prosecution. However, the MMMA clearly distinguishes between the immunity from prosecution for using or possessing marijuana and driving or operating a vehicle under the influence, for which there is no immunity.

The ambiguities continue to arise, as the Court points out, as the legislature failed to define what “under the influence” means within the MMMA law. The Court held that under the influence “contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.” In the present case, Koon was not visibly under the influence. Though the MMMA conflicts with Michigan’s zero-tolerance policy, the MMMA provides that all other laws inconsistent with the MMMA do not apply to the use of medical marijuana (see MCL 333.27427(e)), and thus, the district and circuit courts were correct in their determination that the MMMA supersedes Michigan’s zero-tolerance law. Going forward, one must speculate how and if the legislature will respond to the Court’s criticism. The Court makes several references to the imperfections within the statute and whether the legislature truly intended the law to allow individuals to operate vehicles with marijuana in their system as long as they are not visibly under the influence. Difficulties with assessing whether a driver is under the influence of marijuana are not as readily solved with a hardline rule. Technologies such as breathalyzers are, to this blogger’s knowledge, not available to test marijuana levels in the field, meaning establishing a “cut off,” such as a .08 BAC for Driving Under the Influence, is not likely an option for the legislature. Until they act, it appears the Supreme Court’s decision will force police to perform field-testing to determine if a medical marijuana patient is under the influence.