On May 21, 2013, the Michigan Supreme Court issued its decision in the case of People v Koon (Docket No. 145259), holding that a patient registered under the Michigan Medical Marihuana Act (“MMMA”) cannot be convicted of operating a motor vehicle with marijuana in his or her body, unless the prosecution can prove that the person is “under the influence” of the marijuana.
The defendant Rodney Koon was charged with operating a motor vehicle with a schedule 1 controlled substance (marijuana) in his body in violation of MCL 257.625(8). MCL 257.625(8) has a zero-tolerance provision which makes it illegal for a person to operate a motor vehicle with any amount of a schedule 1 controlled substance—including marijuana—in his or her body, even if the substance does not affect the person’s ability to operate a vehicle. Mr. Koon did not dispute that he had THC in his body, but argued that under the protections of the MMMA he could not be convicted of operating a vehicle with marijuana in his body unless the prosecution could prove that he was “under the influence” of the marijuana.
The Michigan Supreme Court agreed, explaining that the “medical use” of marijuana includes internal possession and, therefore, the “MMMA shields registered patients from prosecution for the internal possession of marijuana, provided that the patient does not otherwise possess more than 2.5 ounces of usable marijuana.” As a result, a registered patient cannot be prosecuted under the zero-tolerance provision of MCL 257.625(8).
However, a registered patient can be convicted of operating with marijuana in his or her system, if the prosecution proves that the patient was “under the influence” of the marijuana. The Court made clear that if a defendant is shown to have been under the influence of marijuana, then the MMMA’s protections will not apply, and the prosecution may seek to convict the defendant under any statute of which (s)he was in violation, including MCL 257.625(8) or MCL 257.625(1) (operating while intoxicated).
The Court declined to set any “exact parameters” of when a person is “under the influence,” but noted that “it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.” This will likely require proof that the defendant’s ability to drive was substantially and materially affected. The Michigan Supreme Court remanded Mr. Koon’s case to the district court for further proceedings consistent with its decision.
The Court also invited the Legislature to consider adopting a “legal limit” like that applicable to alcohol, establishing when a registered patient is outside the MMMA’s protection. The Court noted that the State of Washington, for example, has set a legal limit for the blood concentration of THC at 5 ng/ml. It also noted that Mr. Koon’s THC level was 10 ng/ml.