Can I Use Medical Marijuana on Probation?

Medical Marijuana 1

Lansing Michigan marijuana criminal defense attorney

A common question from clients when convicted of a crime is “Can I use my medical marijuana while I’m on probation.” The answer isn’t really simple. Felony probation officers are actually employees of the Michigan Department of Corrections (MDOC). Misdemeanor probation officers are usually employees of the county. The MDOC has a blanket stance against medical marijuana. No exceptions for anybody. Most misdemeanor probation departments have the same stance. That means it is up to the judge. If use you medical marijuana without the court’s permission, you face a probation violation.

When it comes to medical marijuana, some judges are skeptical and highly opposed, while others are more open to persuasion. This is why it is very helpful to be represented by a criminal defense lawyer that really knows your judge. Some are fine with it along as you have a valid Michigan Medical Marijuana Card. Some will make you choose between using your medical marijuana or driving. Others, will make you bring your doctor in to court so they can be cross-examined about why you need medical marijuana and why there are no other alternatives. Some judges won’t allow it. Period. It is true that you give up some of your freedoms when placed on probation, such as your freedom to travel, associate with known felons, and be in possession of weapons. Unfortunately for medical marijuana users, you can’t use marijuana while on probation either.

Here’s part of the problem. One of your conditions of probation is that you cannot violate any law, including: local ordinances, state law, and federal law. The problem is that marijuana is still illegal under federal law. Even if you have a state-issued medical marijuana card, the feds can still arrest you. If a judge were to permit you to use medical marijuana on probation, essentially they are giving you permission to break federal law. That just doesn’t sit well with a lot of judges. It also makes it very confusing and frustrating for probationers.

Almost all defendants want probation rather than be incarcerated. Probation is a gift of grace after all. However, no one wants to give up their medical marijuana to do it. The reality is, unless the law changes or judicial interpretation changes, probationers will have to live with that ultimatum. The Michigan Medical Marijuana Act is still relatively new and has had a disruptive impact of many areas of the law including child welfare, drunk driving, and probation just to name a few. It is also constantly evolving so it is important to keep up on the changes and to be represented by a criminal defense lawyer that is on top of all the recent developments.

It is important to be represented by an experienced criminal defense lawyer who can negotiate a sentencing agreement with no probation, non-reporting probation, or get the case dismissed or a not guilty verdict at trial. If you are facing criminal charges, a probation violation, or a violation of the Michigan Medical Marijuana Act, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense attorney.

Defending criminal and marijuana charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Washtenaw, Kent, Calhoun, Kalamazoo, Barry, and Shiawassee in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Brighton, Howell, Jackson, Ann Arbor, Grand Rapids, Battle Creek, Hastings, Corunna, Durand.

Michigan First Offense Marijuana Possession

Michigan Marijuana Lawyer

Lansing Marijuana Possession Attorney

First Offense Marijuana Possession

 

Possession of marijuana is a misdemeanor offense under both Michigan state law and local ordinance. It carries the possible penalties of jail, fines, court costs, probation and mandatory driver’s license suspension. The penalties for marijuana possession depends on the jurisdiction. If you have a Michigan Medical Marijuana Card you may have a defense to this crime. The Michigan Medical Marijuana Act is a lengthy discussion that will not be covered in this article.

 

Penalties for Marijuana Possession Under State Law:

 

  • Up to one year in jail
  • $2,000 in fines
  • 180 days suspended driver’s license with first 30 days “hard suspension” (no driving at all-period!)
  • Probation up to two years

 

Penalties for Marijuana Possession Under Local Ordinances

 

  • Up to 93 days in jail
  • $500 in fines
  • 180 days suspended driver’s license with first 30 days “hard suspension”
  • Probation up to one year

 

Some cities have de-criminalized possession for small amounts of marijuana on private property such as your home. It does not prevent you from being criminally charged if it is in your car. The cities of Detroit, Grand Rapids, and most recently Lansing, have decreased the penalty for small amounts of marijuana possession on private property to a civil infraction or ticket where you merely pay a fine. However, it remains a misdemeanor under both state and federal law.

 

Most charges of marijuana possession occur within the context of a traffic stop. The police pull you over for committing some traffic violation such as speeding and end up discovering the weed either in the car or on either the driver or passenger or the belongings of the driver or passenger. How does that happen? Usually one of three ways: plain view, permission, or admission.

 

If the police can see or smell the marijuana, this gives them probable cause to seize the dope and search the vehicle for more. This is what is known as the “plain view” (or “plain smell”) doctrine which is an exception to the warrant requirement for searches. If the police are somewhere where they are lawfully allowed to be and they either see the drugs in plain sight or smell the odor of the drugs, they can seize it as evidence and search for more anywhere it could reasonably be.

 

The other way is by admission or permission. Often the police will ask the driver and other passengers if they have anything illegal on them or in the car. Intimated and nervous, most will readily confess if they do not knowing that they do not have to answer such questions. The courts have held that most traffic stops are not considered “police custody’ which triggers Miranda Warnings. Instead, the courts have classified traffic stops as “brief detentions.” Therefore, the police do not have to provide you with Miranda Warnings before beginning an onslaught of incriminating questions. Remember: no one has to talk to the police. Ever. Always be polite, but invoke your right to silence by telling the officer “I choose not to answer any questions under the Fifth Amendment.” They cannot hold your silence against you or use that as suspicion to search your vehicle.

 

Police officers will often ask the driver for permission to search the car. Again, not realizing they can refuse and such refusal cannot be held against them, many people waive their Constitutional rights and give in to the officer’s request. Again, big mistake. Even if you have nothing to wide, the process of the police searching your car can not only be embarassing but it’s also time consuming and inconvenient. Do not give in to police scare tactics that they will make you wait until they come back with a warrant. Police never need a warrant to search a car. Due to the ready mobility of vehicles, it qualifies as an exigent circumstance which is an exception to the general warrant requirement for searches. All the police need is “probable cause.”

 

How do you know if the police have probable cause or not? Here’s a good rule of thumb to go by– if they are asking your permission they probably don’t have it. It’s been my experience from the vast hoards of dash cam footage I’ve witnessed and police reports I’ve read, if the police have probable cause they will be telling you they’re going to search your car, not asking. Sometimes the police have drug dogs with them and if the drug dog signals that drugs are in the car, that gives the police probable cause to search.

 

If only people were more educated about their rights and invoke them when the time comes, the vast majority of these cases would never be brought to court. That’s the honest truth.

 

My Approach to a Marijuana Possession Charge

 

The first thing I do is thoroughly review all the evidence including police reports, witness statements, dash cam footage, and lab reports. If the stop of the person or car can be successfully challenged, then any evidence obtained from those stops would be suppressed as “fruits of the poisonous tree.” The same goes for the search and seizure of the evidence. If there are any Fourth or Fifth Amendment violations, this can be used to suppress the evidence. If not, we move on the next phase: limiting the damage.

 

Even though jail is possible in the theoretical sense, it is extremely unlikely if not improbable. In all the cases of marijuana use and possession that I have represented clients on and of all the ones I have witnessed other attorneys represent clients on, and of all the ones I have heard of other attorneys representing clients on, I have never, ever seen or heard of a defendant go to jail on a first offense marijuana possession charge. I’m sure that it has probably happened to somebody somewhere. I’ve just never seen it or heard about it.

 

Realistic Outcomes and Sentences

 

Now that we have eliminated jail as a possibility, let’s discuss what the likely sentences are. Depending on which county you are in or what judge you are appearing infront of, you will either be placed on probation with fines and costs, or you will merely be assessed fines and costs. An attorney familiar with your particular court and judge will be able to tell you what to expect. If placed on probation, it generally lasts anywhere from three months to a year with six months being the average. Some courts will have you report regularly to your probation officer such as once a month, others will place you on non-reporting probation where you either report to your probation officer your first and last month of probation or not at all. It’s kind of like being on the honor system.

 

Driver’s License Suspension

 

Probably the worst consequence of marijuana possession (or any drug offense for that matter) is the mandatory driver’s license suspension. That is mandated by statute and neither the judge nor the prosecutor has any authority to barter around it. If convicted, your license will be suspended. The suspension is for 180 days or six months, with absolutely no driving at all during the first 30 days known as a hard suspension. The judge has the discretion to grant you restricted driving privileges after that 30 days meaning you can drive to work, school, court, and the doctor but that’s it. Also, while some judges will automatically grant you that upon sentencing (I always ask the judge to place it in order of judgment) some judges will make you come back after 30 days and formally petition the court for the restricted license. Being caught with marijuana is a much bigger deal than you think.

 

7411 Deferred Sentencing for First Time Drug Offenders

 

The good news is that if it is your first drug offense, you will qualify for a deferred sentence known as 7411 (short for the statute– MCL 333.7411). It is a one time deal that only applies to your first offense for either drug use or drug possession. Upon successful completion of probation, you will have earned a non-public record of the conviction. That means it will not appear on background checks and you can honestly tell future employers that you have not been convicted of a crime. It also prevents the mandatory driver’s license sanctions meaning you will not have a suspended license. If you are eligible, I always bargain with the prosecutor to get them to agree not to object to our motion for 7411. While it is always within the discretion of the judge, it you are otherwise eligible and the prosecution does not object, the judge will more than likely grant the petition unless for some reason you are not a good probation candidate.

 

Simple marijuana possession has harsher penalties and consequences than most people realize. If it is your first offense and it can’t be dismissed, I can help you keep it off your record and help you keep your driver’s license. A drug charge does not have to ruin your future. If you have been charged with marijuana possession, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan marijuana attorney.

 

Representing clients on marijuana possession and use charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Barry, Jackson, Livingston, Washtenaw, Kent, Gratiot in the cities of: Lansing, East Lansing, Mason, Okemos, Haslett, Meridan Township, Holt, Charlotte, Potterville, Hastings, St. Johns, Bath, Jackson, Brighton, Howell, Ann Arbor, Grand Rapids, Ithaca, Alma. 

Medical Marijuana DUI: Court Rules Prosecutors Must Prove Drivers “Under the Influence”

0_0_0_0_250_187_csupload_57880497Lansing Michigan DUI Lawyer
The conflict between Michigan’s Medical Marijuana Act (MMMA)[1] and the OWI statute has now been settled. On Tuesday the Michigan Supreme Court announced that the MMMA trumps the OWI statute[2] thus allowing medical marijuana patients to legally operate a motor vehicle unless the prosecution can prove they are “under the influence” of marijuana. This is similar to the standard for when a driver is taking prescription medication in which he cannot be guilty of drunk driving unless the medication “substantially interferes with his ability to safely operate a motor vehicle.” Furthermore, the Supreme Court noted that the state legislatures should more specifically define “under the influence” in the MMMA.
The case is People v Rodney Koon and has been a hotly discussed and debated topic in DUI circles ever since it began. Mr. Koon was stopped for speeding around Traverse City when police seized a marijuana pipe. Koon stated he was a medical marijuana patient and thus believed he was entitled to drive his car with marijuana in his system. A blood test revealed he had 10 nanograms per milliliter (10 ng/ml) of THC in his system.
Under the OWI statute, driving with any amount of marijuana in your system is against the law. However, the MMMA states a medical marijuana patient can operate a motor vehicle unless “under the influence of marijuana.” Unfortunately, the drafters of the act didn’t elaborate any further on what they meant by “under the influence.” The prosecution’s argument was that the two statutes, when read together, clearly reveal what the legislators meant; they intended any amount of marijuana in someone’s system to be considered “under the influence.” The defense’s argument was that the legislators clearly did not intend that as that would effectively make it legally impossible for a medical marijuana patient to ever drive a car, especially since it stays in the system for up to a month. They argued that the prosecution should have to show that the marijuana “substantially effected the driver’s ability to safely operate the motor vehicle.” After all, why would the legislators allow people to use medical marijuana only to prohibit them from ever driving? Both the district and circuit courts agreed with the defense’s argument. The Court of Appeals, however, did not. 
That is when the charge began from medical marijuana patients that they would never be allowed to legally drive since at least some amount of marijuana will be present in their system, even if only used semi-regularly. While the argument sounds compelling at the onset, I found it to be rather theoretical and less realistic when examined more closely. Marijuana or THC will not register on a breath test which is the most frequently used chemical test to determine intoxication. It would show up in a blood test, but unless the officer has some reason to suspect the driver of using drugs, they don’t have someone qualified to use the DataMaster, or it hasn’t been calibrated, then it’s not likely the officer would do a blood draw. From my experience, officers generally only insist on a blood draw if they believe drugs are involved or when the driver has been in an accident and they perform a blood draw out of convenience. Nonetheless their point couldn’t completely be ignored. The real question was what was the legislative intent and if there is an apparent conflict between the two statutes, who fills the gaps– the Court or the legislators?
I don’t believe that the legislature intended for medical marijuana users to never drive again. However, they created their own dilemma by not being more precise and more clearly articulating their intentions in the MMMA. This entire problem could have been avoided by merely adding one sentence (“by ‘under the influence’ we mean…”). Surely it’s not as if they couldn’t see this becoming an issue? Or maybe it was a matter of them foreseeing that the courts would eventually bail them out, thus alleviating the need to be more specific. It’s happened before after all.
 
Just a couple of years ago the issue arose of whether a homeless person had to comply with the Sex Offender Registry’s requirement of “updating his residence.” The issue was how do you comply with such a directive when you’re literally homeless and don’t have a traditional residence or address? Michigan’s SORA had no apparent provisions to deal with this issue although many other states did. Once again the Supreme Court stepped in and instead of leaving the issue to the legislators to fix, they held that a homeless person can register a residence– he can put down his address as 123 Homeless.[3]
 
Essentially, the court has done the same thing here. Without any quantifiers to fill the gap, I think the more specific language of the OWI statute trumps the vagueness of the MMMA. The legislators can (and should) easily fix the problem by attaching a measuring unit (arbitrary number?) for the amount of THC that can be allowed in a medical marijuana user’s system while driving just like they’ve done with the .08 blood alcohol threshold. Washington has recently resolved a similar conflict by allowing up to 5 ng/ml of THC in a driver’s system to lawfully operate a car.[4] Unfortunately for Mr. Koon, even if Michigan had adopted this standard, he would have still been twice the legal limit. If anything, this ruling gives a much wider degree of latitude to medical marijuana patients because prosecutors don’t have to show that alcohol impaired or substantially effected a driver’s ability to safely operate a car.  They just have to show his BAC at the magic number of .08. 
In any event, the conflict between the two acts is now resolved. The bottom line: if you are a medical marijuana user and you’re charged with OWI, now the prosecutor has to prove you were “under the influence.” Whatever that means. Is a “legal limit” forthcoming for marijuana like the BAC for alcohol? Let’s see if the legislators clean up their mess.
If you or someone you know has been charged with DUI or OWI, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI Attorney about your case.
Representing clients on drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Barry, Clinton, Gratiot, Jackson, Livingston, Washtenaw, Kent, Calhoun in the cities of Lansing, East Lansing, Mason, Charlotte, Hastings, Bath, St. Johns, Ithaca, Jackson, Brighton, Howell, Ann Arbor, Grand Rapids, Kalamazoo, Battle Creek, Haslett, Okemos, Holt, Williamston, Eaton Rapids.
[1]    MCL 333.26421 [2]    MCL 257.625(8) [3]    Peo v Dowdy, 489 Mich 373 (2011) [4]    Wash Rev Code 46.61.502(1)(b)