STATE OF MICHIGAN IN THE 14A DISTRICT COURT FOR WASHTENAW COUNTY

STATE OF MICHIGAN

V

RAYMOND CUADRADO, DIST CT NO.: 131-0537 Defendant.

Brian Mackie (P25745) Prosecuting Attorney/Washtenaw County PO Box 8645 Ann Arbor, Michigan 48107 734-222-6620

Dennis Hayes (P14765) Attorney for Defendant 120 N. 4th Ave Ann Arbor, Michigan 48104 734-995-4646

DECISION

At a session of 14A1 District Court, Ann Arbor Michigan, on the 23rd day of July 1014

PRESENT: The Honorable Richard E. Conlin, District Court Judge

OPINION OF THE COURT

This matter comes before the Court on Defendant's Motion to Dismiss. A hearing was

held on August 28, 2013. MCL 750.474 criminalizes the transportation of useable marihuana by

a patient or a caregiver (as defined by the Michigan Medical Marihuana Act) unless the useable

marihuana is enclosed in a case carried in the trunk or enclosed in a case that is not readily

accessible if there is no trunk. Defendant claims that MCL 750.474 is unconstitutional insofar as

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it conflicts with the Michigan Medical Marihuana Act, MCL 333.26421 et seq., which declares

that a validly licensed patient or caregiver is presumed to be properly engaged in the medical use

of marihuana and is therefore immune from prosecution for crimes related to marihuana.

For the reasons stated herein, the Court holds that MCL 750.474 is in violation of Art IV,

Section 25 of Michigan's Constitution, and this case should be dismissed.

Findings of Fact:

Defendant Cuadrado was pulled over in Pittsfield Township for having an illegal tint on

his windows, and for failing to stop at a stop sign. Officer Gilbee testified that he smelled

"fresh" "unburned" marihuana. Cuadrado admitted to Officer Gilbee that he had marihuana in

his possession and presented a valid medical marihuana ID card. When asked, Cuadrado

presented the marihuana, which he had been carrying in his pocket.

There is no dispute that

• Cuadrado had a valid medical marihuana ID card;

• Cuadrado had a valid patient caregiver license;

• Cuadrado had 5 grams of usable marihuana in his pocket;

• The usable marihuana was not in the trunk of the car or in a separate container but was in

his pocket.

Applicable law:

1. Michigan Constitution 1963, Art IV, sec 25 states -No law shall be revised, altered or

amended by reference to its title only. The section or sections of the act altered or

amended shall be re-enacted and published at length."

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2. MICHIGAN MEDICAL MARIHUANA ACT

a. MCL 333.26423 (f) defines medical use to include transportation of marihuana.

b. MCL 333.26424 provides protections for the medical use of marihuana. Section (d)

states a presumption that a patient is engaged in the medical use of marihuana if he or

she is in possession of a registry card, and is in possession of an amount that does not

exceed the amount allowed under this act.

The presumption is rebuttable.

c. MCL 333.26428 provides that in any criminal prosecution the defendant may assert

the medical purpose for using marihuana as a defense, and the defense will be

presumed valid where the defendant is a patient or a patient's primary care giver.

d. MCL 333.26427(e) provides that "All other acts and parts of acts inconsistent with

this act do not apply to the medical use of marihuana as provided for by this act."

3. MCL 750.474 provides that is a misdemeanor to transport usable marihuana in a motor

vehicle unless it is enclosed in a case carried in the trunk or enclosed in a case that is not

readily accessible if there is no trunk.

Case Law and Analysis:

People v Koon, 494 Mich 1 (2013), addressed the conflict between the Michigan Medical

Marihuana Act and the Michigan Vehicle Code. The Michigan Vehicle Code prohibits any

person from driving with any amount of a schedule 1 controlled substance, including marihuana,

in his or her system. The Michigan Medical Marihuana Act protects patients who are using

medical marihuana. The Court held that the Medical Marihuana Act allows a patient to drive

with marihuana in his or her system if he or she is not otherwise under the influence of

marihuana, despite the prohibition in the Michigan Vehicle Code. The Court held that "the

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MMMA resolves conflicts between all other acts and the Michigan Medical Marihuana Act by

exempting the medical use of marihuana from the application of any inconsistent act." Id. at 4.

The Court summarized the holding as "the MMMA is inconsistent with, and therefore

supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his

or her failure to act in accordance with the MMMA."

Applying Koon to this case, the Michigan Medical Marihuana Act clearly allows a patient

or a care giver to transport usable marihuana, only restricted by the amount allowed. The

Michigan Medical Marihuana Act clearly states that if another statute conflicts with the

Michigan Medical Marihuana Act, then the conflicting statute or act does not apply to the

medical use of marihuana. Use includes transportation.

The difference between Koon and the present case is that in Koon, the prohibition on

driving with marihuana in one's system existed before the Michigan Medical Marihuana Act, but

the statute in question here, MCL 750.474, was enacted after the Michigan Medical Marihuana

Act became effective. Therefore, the question arises as to whether the requirement of an

enclosed case is a valid amendment to the Michigan Medical Marihuana Act, such that

Defendant Cuadrado is no longer protected by the Michigan Medical Marihuana Act.

Footnote 22 in Koon addresses the Constitutional mandate that "no law shall be revised,

altered or amended by reference to its title only." The Koon Court assumed, without deciding,

that this provision applies to voter-initiated laws and stated "we conclude that the MMMA is an

`act complete in itself' and therefore, falls within a well-settled exception..." Citing Drake v

Mahaney, 13 Mich 481 (1865) and In re Constitutionally of 1972 PA 294, 389 Mich 441 (1973),

the Koon Court noted that if an Act is complete unto itself, then even if it affects provisions that

are not republished, it does not violate Const 1963, art 4 section 25.

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MCL 750.474 is not an -act complete in itself." It refers to the Michigan Medical

Marihuana Act by reference, but does not reenact or republish the Act. The Penal Code statute

requiring medical marihuana to be in an enclosed case when transported clearly amends the

Michigan Medical Marihuana Act, which places no restrictions (other than amount) on

transporting Marihuana for patients and caregivers, and provides a complete defense to criminal

prosecution. The statute does not reenact or republish the Michigan Medical Marihuana Act. In

Alan v Wayne County, 388 Mich 210 (1972), the Michigan Supreme Court specifically addresses

the question of -amendment by implication," where a statute has the effect of amending another

statute or act, but does not make reference to the statute or act so amended. But that is not the

case here; MCL 750.474 specifically mentions the Michigan Medical Marihuana Act, and

specifically amends the act by requiring usable marihuana to be transported in a closed container

that is in the trunk or otherwise inaccessible. This type of amendment is unconstitutional. See

Alan, supra.

Therefore, for the reasons stated herein, the Court concludes that MCL 750.474 is an

unconstitutional amendment to the Michigan Medical Marihuana Act, and is therefore invalid.

Defendant Cuadrado was properly transporting usable marihuana, as permitted by the Michigan

Medical Marihuana Act, and cannot be prosecuted for violating MCL 750.474.

The case against Cuadrado is dismissed.

It is so ordered.

BSI Hon. Richard E. Conlin P25354 14A District Court Judge

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