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Operating under the influence of marijuana – Part I

 An important function of our courts is to interpret statutes so that everybody is informed as to what they mean and the law requires.

 Recently, the Michigan Court of Appeals was called upon to interpret a provision of the Michigan Medical Marihuana Act (MMMA) as to when driving a motor vehicle after using marijuana is prohibited.

 By way of a very brief history, it should be noted that the MMMA was a citizens’ initiative petition, which was approved by the voters in November 2008 and which became effective Dec. 4, 2008.

 It allows a limited class of individuals the medical use of marijuana with its stated purpose being an “effort for the health and welfare of Michigan citizens.”

 Among its many provisions is a section granting qualifying patients broad immunity from criminal prosecution for specific acts relating to the use or possession of medical marijuana.

 There is another section which prohibits a number of specific acts that negate immunity including prohibiting a person from operating, navigating, or being in actual physical control of any motor vehicle “while under the influence” of marijuana.

 This quoted language mirrors that found in another statute, (the Michigan Motor Vehicle Code), which prohibits a person from operating a motor vehicle while intoxicated (OWI).

 No one has ever disputed that the Motor Vehicle Code applies to driving under the influence of marijuana, but an unanswered question has been about situations where a qualifying patient was “operating while visibly impaired” from the use of marijuana (OWVI) which is a lesser offense.

 Therefore the specific question is does the language of the MMMA allow an “impaired driving” prosecution when it only refers to driving “while under the influence of marijuana” as being prohibited?

 This was the question presented to the Michigan Court of Appeals in People v Dupre.

 In Dupre, the defendant was a qualifying patient who had pleaded no contest to OWVI with the agreement that he could appeal the conviction for a determination of this issue.

 He argued that because of the MMMA’s limiting language, OWVI was an immune act and as a matter of law only an OWI prosecution could be allowed.

 Not surprisingly the state took the opposite position.

 Next week - Part II - The Decision.

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