By Ben Solis
Gongwer News Service
Michigan may have freed the weed, but cannabis’s status as controlled substance federally means its use during court-ordered probation can still be considered a violation of the prescribed terms, the Court of Appeals unanimously ruled Thursday.
In a published per curiam opinion released Friday, the panel in People v. Hess (COA Docket No. 366148) affirmed the Montcalm Circuit Court’s denial of a motion to amend the terms of the defendant’s probation, which also sought the nullification of her probation violations for marijuana use.
The decision was affirmed by Judge Brock Swartzle, Judge James Redford and Judge Kathleen Feeney.
The case centers around the defendant’s pleading guilty to one count of third-degree retail fraud, which landed her a 12-month probation sentence under the Holmes Youthful Trainee Act. The order of probation prohibited the defendant from using or possessing marijuana and required drug screening throughout the duration of her sentence.
She tested positive for marijuana twice, resulting in two violations of her probation terms. The defendant pleaded guilty to the first violation, but she moved for an amendment of her sentence following the second violation.
The defendant asked the court to allow the use and possession of marijuana, to vacate her first violation and to dismiss the second. The crux of her argument was that the prohibition violated the plain language of the Michigan Regulation and Taxation of Marijuana Act.
She also cited People v. Thue, in which the Court of Appeals held that a probation condition prohibiting a probationer’s Michigan Medical Marijuana Act-compliant use of medical marijuana was unlawful. The defendant argued that her case was different than Thue because her probation was not marijuana violation and was an issue of first impression for the court.
The Montcalm Circuit Court disagreed with her argument, denying her motion based on the fact that the MRTMA was already enacted at the time Thue was decided, and the lack of discussion on recreational marijuana in Thue showed that the act was not meant to be analyzed and applied identically to its medical marijuana-centric sister statute.
The defendant therefore violated a lawful term of her probation, and the court revoked her HYTA status. That led the court to amend her sentence to 10 days in jail.
Upon appeal, the defendant narrowed her argument to the fact that prohibiting her use of cannabis was unlawful under the MRTMA, but the circuit court again denied her application for leave to appeal, stating that probationers were a separate class of people from law-abiding citizens, as outlined in the act, and that courts were permitted to restrict a probationer’s use of even legal substances – including alcohol and a recreational marijuana.
The defendant filed in the Court of Appeals, but the panel in Hess disagreed with her argument that Thue or People v. Lopez-Hernandez automatically extends to recreational marijuana cases, noting that the connection was not as clear-cut as the defendant suggested.
“There are, however, differences between the facts of Lopez-Hernandez and those of the current case. In Lopez-Hernandez, the offense for which the defendant was on probation involved the use of marijuana,” the panel wrote. “In the case before us, the defendant was convicted of retail fraud. Lopez-Hernandez did not address the question whether its holding would apply to cases that do not involve a marijuana-relate offense. The issue before us is whether it is permissible to proscribe the use of marijuana as a condition of probation for nonmarijuana-related crimes. We conclude that it is.”
The panel further ruled that marijuana remains a controlled substance federally, and that a condition of the defendant’s probation was to not violate any Michigan and United States laws or local ordinances.
Gongwer News Service
Michigan may have freed the weed, but cannabis’s status as controlled substance federally means its use during court-ordered probation can still be considered a violation of the prescribed terms, the Court of Appeals unanimously ruled Thursday.
In a published per curiam opinion released Friday, the panel in People v. Hess (COA Docket No. 366148) affirmed the Montcalm Circuit Court’s denial of a motion to amend the terms of the defendant’s probation, which also sought the nullification of her probation violations for marijuana use.
The decision was affirmed by Judge Brock Swartzle, Judge James Redford and Judge Kathleen Feeney.
The case centers around the defendant’s pleading guilty to one count of third-degree retail fraud, which landed her a 12-month probation sentence under the Holmes Youthful Trainee Act. The order of probation prohibited the defendant from using or possessing marijuana and required drug screening throughout the duration of her sentence.
She tested positive for marijuana twice, resulting in two violations of her probation terms. The defendant pleaded guilty to the first violation, but she moved for an amendment of her sentence following the second violation.
The defendant asked the court to allow the use and possession of marijuana, to vacate her first violation and to dismiss the second. The crux of her argument was that the prohibition violated the plain language of the Michigan Regulation and Taxation of Marijuana Act.
She also cited People v. Thue, in which the Court of Appeals held that a probation condition prohibiting a probationer’s Michigan Medical Marijuana Act-compliant use of medical marijuana was unlawful. The defendant argued that her case was different than Thue because her probation was not marijuana violation and was an issue of first impression for the court.
The Montcalm Circuit Court disagreed with her argument, denying her motion based on the fact that the MRTMA was already enacted at the time Thue was decided, and the lack of discussion on recreational marijuana in Thue showed that the act was not meant to be analyzed and applied identically to its medical marijuana-centric sister statute.
The defendant therefore violated a lawful term of her probation, and the court revoked her HYTA status. That led the court to amend her sentence to 10 days in jail.
Upon appeal, the defendant narrowed her argument to the fact that prohibiting her use of cannabis was unlawful under the MRTMA, but the circuit court again denied her application for leave to appeal, stating that probationers were a separate class of people from law-abiding citizens, as outlined in the act, and that courts were permitted to restrict a probationer’s use of even legal substances – including alcohol and a recreational marijuana.
The defendant filed in the Court of Appeals, but the panel in Hess disagreed with her argument that Thue or People v. Lopez-Hernandez automatically extends to recreational marijuana cases, noting that the connection was not as clear-cut as the defendant suggested.
“There are, however, differences between the facts of Lopez-Hernandez and those of the current case. In Lopez-Hernandez, the offense for which the defendant was on probation involved the use of marijuana,” the panel wrote. “In the case before us, the defendant was convicted of retail fraud. Lopez-Hernandez did not address the question whether its holding would apply to cases that do not involve a marijuana-relate offense. The issue before us is whether it is permissible to proscribe the use of marijuana as a condition of probation for nonmarijuana-related crimes. We conclude that it is.”
The panel further ruled that marijuana remains a controlled substance federally, and that a condition of the defendant’s probation was to not violate any Michigan and United States laws or local ordinances.
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