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In The News

Thursday, December 6, 2018

Marijuana is Legal as of Now! What does that Mean for My Case?

By Michael Nichols
Categories: Michael J. Nichols

The Lawyers at the Nichols Law Firm have been anticipating the advent of legalized marijuana, effective midnight, December 6, 2018 ... a day that will live in infamy. If you have a pending case that was initiated prior to December 6 and the charges are based on conduct that was "illegal then" but is "legal now" - you may have a defense on those charges.

For example - one of the allegations against you is that you were driving while marijuana (THC) was in your system. Under (8) of the Michigan Drunk Driving Laws (MCL 257.625) the presence of "any amount" of a schedule I controlled substance while operating is illegal.

The legislature did not and from what we can tell probably will not -- amend that prohibition.

However, (4) and (5) of the Michigan Recreational Marijuana Tax Act does 2 things that make this a very interesting time in our legal history. The Act says that the standard of conduct that is illegal is "under the influence" while operating a motor vehicle. The Act also says that any provision of the law that conflicts with the Act is "trumped" by the MRMTA.

Add to the analysis an interpretation by the Supreme Court of the United States of the applicability of statutes or substantive legal developments that give people more protections while a case is pending. If your case was pending, because the case is not yet "final," the general rules of retroactivity as established by the Court in Teague v Lane, and reaffirmed in Welch v United States arguably apply to you..

Retroactivity must be applied to "Proposal 1 cases," because its effect has fundamentally altered “the range of conduct or class of persons that the law punishes.” Under Teague, as a general matter, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” The precedent as extended in the Welch decision requires that any cases which remain pending without resolution at the time of the effective date of the new statute, are affected.

These are arguments. This is still a matter that is likely to be resolved by Michigan's Appellate Courts. The analyses are fact-intensive and lawyers and citizens are cautioned about the old axiom "bad facts make bad law."

For the lawyers who are committed to results - even when those results reach the cutting edge - call the Nichols Law Firm at 517 432 9000 or email Mike Nichols at

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.