In The News

In The News

Sunday, January 1, 2023

An Unpublished but Critical Case in Driver License Restoration for Medical Marijuana Users

By Michael Nichols
Categories: Drugged Driving

Under Michigan’s Motor Vehicle Code, a “habitual offender” is someone who receives two convictions for intoxicated driving within seven years. MCL 257.303. This past week, a panel of the Michigan Court of Appeals sided with a habitual offender who was denied the restoration of his driver’s license by the Michigan Secretary of State.

The case of Morrow v Secretary of State (COA Docket: 358508) concerned the Petitioner’s request to have his license restored. He had been convicted in 2004 and 2007 of either impaired or intoxicated driving, with various interlock violations throughout the years. In 2019, the Petitioner sought to restore his license. In such an administrative hearing, the Petitioner has the burden of proving that:
• That the petitioner’s alcohol or substance abuse problems, if any are under control and likely to remain under control.
• That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk;
• That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
• That the petitioner has the ability and motivation to drive safely and within the law.

A hearing officer from the Secretary of State denied the Petitioner’s request in 2019, and in 2021, he attempted to restore his license once again. In 2021, the Petitioner testified that he was 39 years old and had two convictions for alcohol-related driving crimes. The Court of Appeals noted that he presented a favorable substance abuse evaluation and the results of several negative alcohol and drug tests taken over a period of time. While he admitted to using marijuana as a teenager, he stated he had been sober from alcohol and marijuana for 10 years. He noted his active participation in Alcoholics Anonymous and support from family and friends motivates his desire to remain sober.

Despite all of these positive facts weighing in his favor, the Secretary of State denied the Petitioner’s request to restore his license. The hearing officer based his denial on the fact that the Petitioner had been guilty of delivery of marijuana to an undercover officer while he operated a dispensary prior to legalization in 2018. The Hearing Officer demanded that the Petitioner provide records from the state’s medical marijuana agency as well as producing a document known as a Pre-Sentence Investigation Report (PSIR) – a report prepared by courts ahead of sentencing a defendant. This report was also requested by the 2019 Hearing Officer.

The Petitioner appealed to the Circuit Court on the basis that he had demonstrated what was required of him under the law, however the Circuit Court sided with the Secretary of State and upheld the denial of the restoration.
The Michigan Court of Appeals reversed the Circuit Court and the Hearing Officer by conditioning the Petitioner’s request for license restoration on producing the PSIRs and his medical marijuana card. The Court of Appeals noted that because Michigan law prohibits the disclosure of a PSIR, not producing one cannot be the basis of denying restoration of a driver’s license.

Further, and perhaps most importantly, the Court of Appeals said that the Michigan Medical Marihuana Act requires that Petitioner’s medical marijuana card, regardless of its contents, cannot be used to deny him an opportunity to restore his license.

While this opinion is unpublished, it provides a clear legal road map to arguing future issues involving denial of a license restoration. If your Michigan driver’s license has been revoked, you should contact a law firm that is experienced in handling those matters.

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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.