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Michigan Court Of Appeals Rules Probationers Cannot Be Prohibited From Using Medical Marijuana

by | Mar 8, 2021 | Controlled Substance Offenses, Criminal Procedure |

 

On February 11, 2021, the Michigan Court of Appeals ruled in People v Thue, __ Mich App __ ; __ NW2d __ (Docket No. 353978) that trial courts cannot deny probationers the use of medical marijuana while under supervision.

In this case, the defendant was convicted of assault and battery and sentenced to one year of probation.  One of his probation conditions was to not use marijuana, including medical marijuana.  The defendant filed a motion with the district court to modify the terms of his probation to allow him to use medical marijuana.  He did, in fact, possess a medical marijuana registration card as required under law.  The district court denied the motion, as did the circuit court.  The defendant appealed to the Michigan Court of Appeals.

In an unanimous decision, the appellate court held that the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26421 et seq., supersedes those portions of the Michigan Probation Act that gives the trial court the authority to restrict defendant’s use of medical marijuana while on probation.  Specifically, the MMMA provides that:

  • “[T]he medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.” MCL 333.26427(a).
  • “[A]ll other acts and parts of acts inconsistent with this act do not apply to the medical uise of marijuana as provided for by this act.” MCL 333.26427(e).
  • “[A] qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act…” MCL 333.26424(a).

The Michigan Court of Appeals found that a condition of probation prohibiting use of medical marijuana under the MMMA is inconsistent with MCL 333.26427(a) and MCL 333.26427(e).  Furthermore, the Michigan Court of Appeals found that revoking probation due to marijuana use compliant under the MMMA constitutes a “penalty” or a “denial of a right or privilege” under MCL 333.26324(a) and is therefore impermissible.  Therefore, defendant’s motion to eliminate the condition prohibiting medical marijuana use while on probation should have been granted.  Trial courts cannot impose conditions of probation that disallow medical marijuana use consistent with the MMMA.

It should be noted, however, that trial courts CAN prohibit the recreational use of marijuana while on probation.  If you are serving a probational sentence, you should consider applying for a registration card under the MMMA to protect your medical use and avoid a violation of probation charge.

If you or a loved one have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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