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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 Koon argued that the zero-tolerance provision of MCL 257.625(8) is superseded by the MMMA– to which the district and circuit courts agreed.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.

Labels: blood alcohol content, Grand Traverse County, medical marijuana. criminal appeal, michigan medical marijuana act, michigan supreme court, MMMA, under the influence, zero-tolerance

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The COA held in a published opinion that the trial court does not have to find that termination is in the best interests of the child by clear and convincing evidence but only by a preponderance of the evidence. In re Moss Minors, issued May 9, 2013 (Docket 311610). The Court of Appeals based this decision on the change of the language from the earlier statute, which said the court could terminate “UNLESS the court finds that termination of parental rights to the child is clearly not in the child’s best interests.” The current version of the statute reads that if the court finds the statutory grounds to terminate and that termination is in child’s best interests, then it can terminate. Even though the Legislature eliminated the difficult burden from the previous statute that required the parent to demonstrate that it is not in the child's best interests to terminate, and made it easier for parents, by requiring the prosecutor to show that it is the in the child's best interest to terminate, the Court of Appeals' interpretation of the statutory burdens of proof make it easier for the trial court to terminate because the prosecutor only has to show by a preponderance of the evidence that termination is in the child's best interests. Because termination has constitutional implications to a parents right to the care custody and control of their children, I would think that the higher clear and convincing standard would be required (see Judge Gleicher's concurring opinion in Hollis v Miller). And accordingly, the COA must read the statute in a way that is constitutionally permissible. Judge Wilder wrote a concurring opinion, but his opinion contains the same problem as the majority --it accepts the preponderance of the evidence standard for the best interests analysis. His opinion goes further and states that, once the statutory grounds for termination have been established by clear and convincing evidence, that the parent no longer has a liberty interest in their child. So although MCL 712A.19b(5) requires both statutory grounds and best interests before the trial court can terminate, apparently, according to the concurrence, the liberty interest ends before the trial court even considers what is in the child's best interests.

Labels: 712A.19b, burden of proof, clear and convincing evidence, constitutional violation, Court of Appeals, Judge Gleicher, Judge Wilder, termination of parental rights appeal

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On April 16, 2013, the Michigan Court of Appeals affirmed in a published opinion a trial court’s grant of a judgment of divorce, despite the fact that the plaintiff-wife in the divorce was mentally incompetent and the defendant-husband in the divorce was no longer male. In Estate of Devon Burnett, Docket 309640. The plaintiff incompetent spouse was 79 years old and suffering from dementia. The defendant spouse was a post-operative transgender male to female. This case brings to light two very interesting and important public policy considerations, which the Court of Appeals declined to address. First, should guardians of an incompetent spouse be able to sue for divorce on behalf of the incompetent spouse? Second, should the courts define a man and a woman by their biological sex? In dicta, the Court acknowledged that defendant’s argument that as a matter of policy, allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members merely for financial gain, was an interesting one, but noted that such a policy consideration was better left to the legislature of the Michigan Supreme Court. In this particular case, the evidence clearly established that the parties were no longer holding themselves out as married. They were living in separate states, and there was no indication that the defendant spouse provided any support to the plaintiff incompetent spouse after 2005. If the plaintiff wife had been competent, certainly no judge would question her decision to file for divorce. However, the issue does remain–what purpose does divorce serve other than a financial advantage to the guardians and beneficiaries of the incompetent spouse’s will? On the one hand, if divorce is necessary to address the possibility of an abandoned spouse leeching off of an incompetent spouse’s means for support, then certainly, divorce actions initiated by guardians of an incompetent spouse seems necessary. On the other hand, is it equitable to allow guardians to initiate divorce actions solely for the purpose of financial gain once the incompetent spouse has passed away? Also in dicta, the Court of Appeals noted that it was declining to adopt a definition of “man” and “woman” as defined by biological characteristics. Since the Michigan Constitution and Michigan law expressly forbid same sex marriage, this decision from the Court of Appeals was surprising. On the one hand, adopting the view that ones status as male or female is determined by ones chromosomal pattern could allow for couples in a transgender relationship to legally marry, despite the fact that outwardly, the marriage may appear to be one between the “same sex.” On the other hand, the decision not to define a “man” and a “woman” at law may avoid confusion with other areas of the law where biological sex may be relevant. It seems that the Court of Appeals was fearful of the policy implications of such a decision, and so, instead of answering the question–to be or not to be–it simply declined to respond. Such an action from the Michigan Court of Appeals is not surprising. Just a few months ago, it acted similarly in its published decision regarding custody of a child between two same sex parents that were legally married in another state, as described in this blog for Usitalo v Landon.

Labels: appeal, appellate review, authority of guardian, divorce, Michigan, public policy, same sex couple, same sex marriage, transgender, Washtenaw County

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