Defendants who have been convicted of criminal offenses and are placed on probation are subject to numerous conditions under Michigan’s Probation Act.

 One of the conditions can be not to use drugs.

 In 2008, Michigan voters approved the Michigan Medical Marihuana Act (MMMA), which allows qualifying patients to be issued a medical marijuana card. They then may use marijuana legally and are not subject to being arrested, prosecuted, or penalized in any manner for such use.

 Since the approval of this law, it has remained an open question as to whether sentencing judges may prohibit the use of medical marijuana by probationers who have cards or does the MMMA control?

 In 2017, there was an unpublished non-precedential Michigan Court of Appeals decision, which held such a restriction was proper.

 However, on Feb. 11, the Court of Appeals released its published precedent setting opinion in People v Thue, which gave a definitive answer.

 In Thue, the defendant was placed on probation with one of the conditions being that he could not use marijuana, including medical marijuana, even though he had a medical marijuana card. He sought to have this condition modified, was unsuccessful, and he appealed.

 His argument was that this prohibition was in direct conflict with the MMMA and he potentially could be penalized for using medical marijuana by having his probation revoked.

 The Appeals Court initially reviewed three prior Michigan Appellate Court decisions which held that the MMMA superseded or preempted other Michigan laws thus allowing cardholders: (1) to grow marijuana, (2) operate a motor vehicle with trace amounts of marijuana in their systems, and (3) to transport marijuana in a vehicle.

 The court also observed that three other states (Arizona, Oregon and Pennsylvania) with laws similar to the MMMA, allow qualified probationers to use medical marijuana.

 After considering everything, the court held that the MMMA preempted the Probation Act and a court may not prohibit the proper use of medical marijuana by probationers and revoking probation for such use is a “penalty.”

 The court also held that probation conditions may be imposed prohibiting the use of recreational marijuana and the improper use of medical marijuana.

 Reportedly this decision will not be appealed.

 This now is the law and judges will be guided accordingly.

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