Improved Outlook for Medical Marijuana Patients Seeking Drivers License Restoration

Up until May 21, 2013, the hearing officers at the Michigan Secretary of State have been taking the position in drivers license restoration actions that medical marijuana patients must choose between their driver’s license and their medicine. A new Michigan Supreme Court decision in People v Koon(Docket No. 145259) is going to significantly impact that position.

In Koon, the Defendant was charged with Operating while under the influence of drugs (OWID), and more specifically, that he had 10ng/ml of active THC in his blood at the time of operation. In Michigan, MCL 257.625(8) prohibits operation of a vehicle with any amount of active THC in the bloodstream. There is no requirement for actual impairment.

The District Court, on the motion of the Defendant, held that the Defendant’s registration under the Michigan Medical Marijuana Act (MMMA) protected him from prosecution under the OWID statute unless the prosecution was able to prove that the defendant was actually impaired by the presence of marijuana in his body. The argument of the Defendant, adopted by the district court, was that the OWID statute was preempted by the MMMA. On appeal, the circuit court agreed.

However, the prosecution appealed the case to the Michigan Court of Appeals, who in 2012 overturned the Circuit Court’s decision in People v Koon, 296 Mich App 223 (2012). The Court of Appeals held that the MMMA did not prohibit a patient from being prosecuted under the zero-tolerance provision of MCL 257.625(8). Since then, the law of the land in Michigan has been that no one, even medical marijuana patients, may drive with the presence of any active THC in their system, whether or not they were actually high. Therefore, those medical marijuana patients who sought to have their drivers licenses restored through the Michigan Secretary of State faced a difficult choice – to seek their license, or use their medicine.

However, on May 21, 2013, the Michigan Supreme Court released their decision overturning the Court of Appeals, and reinstating the Circuit Court’s decision that actual impairment is required to uphold a conviction on OWID.

This is going to significantly increase the potential for a positive outcome in a drivers license restoration action for patients. The MMMA is intended to protect patients not only from prosecution, but from other consequences as a result of their use of medical marijuana. The position previously taken by the Michigan Secretary of State was that because a patient was not allowed to drive with the presence of any amount of active THC in their body, that a patient would virtually never be able to legally drive. However, the MSC decision in Koon simply requires that patients not drive if they are impaired by marijuana.

I suspect that some hearing officers will still take the position that medical marijuana use should prohibit restoration of a patient’s drivers license. There are still many in the government and the judicial system that have strongly resisted complying with the MMMA, despite the overwhelming support for the legislation when it was approved by Michigan voters in 2008. On the other hand, the Koon decision gives patients a fighting chance to regain their driving privileges, whether in front of a SOS hearing officer or a circuit judge on appeal.

If you are a patient seeking restoration of your driving privileges, call us at (616) 773-2945 for an evaluation of your case.

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