Preemption
Michigan Court of Appeals Says Probationers Have a Right to Use Medical Marijuana on Probation
10/03/21 11:06
On February 11, 2021, the Michigan Court of Appeals held in People v Thue, No. 353978, 2021 WL 519716, at *1 (Mich Ct App, February 11, 2021), that probationers who held medical marijuana permits had the right to use their medical marijuana , while on probation. This decision resolved a conflict with various courts around the state. Mr. Thue unsuccessfully asked a Grand Traverse District Court to modify his probation to allow him to use medical marijuana while on probation. The District Court denied the motion to modify his probation and Mr. Thue applied for permission to appeal to the Circuit Court which upheld the condition. Mr. Thue then took the appeal to the Court of Appeals which reversed.
It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument. Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation. Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8th 2021 to appeal the ruling to the Supreme Court.
It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument. Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation. Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8th 2021 to appeal the ruling to the Supreme Court.