Medical Marijuana

In The News

Wednesday, February 24, 2021

Big News for Medical Marijuana Patients - A Court Cannot Keep You When You are On Probation from Your Medication

By Michael Nichols
Categories: Medical Marijuana

On February 11, 2021, the Michigan Court of Appeals decided People v Thue, which allowed individuals to use medicinal marihuana while on probation so long as that behavior is in conformity with the Michigan Medical Marihuana Act (MMMA). The MMMA states, “A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner […] for the medical use of marihuana in accordance with this act.” Mr. Thue’s counsel argued that allowing his probation to be revoked because of the use of marihuana consistent with the MMMA would constitute a “penalty in any manner” which the MMMA prohibits. The Court of Appeals agreed and held that the revocation of probation because of MMMA-compliant use of marihuana constitutes a penalty and is not allowed by the MMMA. The opinion concludes by stating that because the MMMA is inapplicable to the recreational use of marihuana, a trial court may still impose probation conditions related to the recreational use of marihuana and revoke probation for recreational use or use of marihuana in violation of the MMMA.

So what does that mean for the future? Multiple courts we have spoken to in Ingham County have recognized the Thue opinion and are not violating probationers for the use of marihuana if the person has a valid medical marihuana card and otherwise is in compliance with the MMMA. At least some probation orders are being modified upon request of the judge or the probationer to clarify such. The Court of Appeals explicitly stated that the recreational use of marihuana on probation can still be prohibited, but the language of the MMMA relied upon by the Court of Appeals in Thue may cause the same result when interpreting the Michigan Regulation and Taxation of Marihuana Act (MRTMA). The MRTMA states that the use of marihuana by persons 21 years of age or older, “are not grounds for arrest, prosecution, or penalty in any manner.” Although we’re sure that prosecutors across the state are likely to rely upon the language in Thue to say that courts may still restrict recreational use of marihuana while on probation, the Court of Appeals was only interpreting the MMMA and not the MRTMA. The parallel language of the MRTMA and presumably similar interpretation is likely to make courts reach the same result. The Nichols Law Firm looks forward to making this argument on behalf of clients and arguments regarding the use of both medicinal and recreational marihuana while on bond in the near future.

A link to the opinion is here:

Driving under the influence of marihuana remains illegal under both the MMMA and the MRTMA so make sure to be safe and sober on the roads. On the converse side, just because you have THC in your blood when driving doesn’t make you under the influence. If you’re accused of being under the influence of marihuana while driving, please contact us as we remain Committed to Results.

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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.