LEGAL VIEW OF MARIJUANA CASE

EDITOR:

This letter is in response to Mr. Richard Lake's letter published
Dec. 7, 2010, about the recent marijuana case involving a client of
ours. Our office would like to clear up some misunderstanding that we
are concerned members of the public may have.

Our client was pulled over by the Michigan State Police for speeding
and, after a brief investigation, arrested for operating with the
presence of a controlled substance. Blood tests preformed on her
showed the presence of tetrahydrocannabinol (THC), the psychoactive
active ingredient in marijuana and 11-carboxy-THC, a marijuana
metabolite. At the time, she had a right to use marijuana under the
Michigan Medical Marijuana Act (MMMC).

The decision that Mr. Lake points to is a case called People v.
Feezel in which a defendant was convicted of several crimes including
operating with a schedule1 controlled substance in his body. This
conviction was based on is having 1-carboxy-THC and not the active
THC in his body while operating a motor vehicle.

The Michigan Supreme Court held that 11-carboxy-THC is not a schedule
1 because it has no effect on an individual and is not THC.

In the opinion written by Justice Cavanagh, the majority makes it
clear that this case does not "imply the legalization of marijuana
for limited medical purpose... or that marijuana itself should no
longer be on the list of schedule 1 controlled substances." Feezel
pg. 30 fn. 16.

The difference between Feezel and our client's case is that she had
not only 11-carboxy-THC present in her system, but also the active
THC. The court and attorneys had reviewed Feezel, and our office made
the argument that THC should no longer be a schedule 1 narcotic based
on the MMMA, which would indicate that marijuana does have medicinal
purposes. We also argued that language in the MMMA shows that the
drafters intended to allow medical marijuana patients operate motor
vehicles with active THC in their bodies as long as they are not
under the influence. Judge Pearson ruled that THC is still classified
as a schedule 1 narcotic by the Michigan Board of Pharmacy, who the
legislature gave authority to classify narcotics. For this reason, an
individual operating a motor vehicle with any amount of THC is
committing a crime regardless of whether that individual has a valid
medical marijuana card.

Undoubtedly, this issue will be the subject of future litigation as
this is a new topic in the law as the Michigan Supreme Court did not
address the legality of valid medical marijuana patients operating
motor vehicles with active THC present in their bodies.

John M. A. Bergman

Escanaba