People of Michigan v. Michael Dean Dupre ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
December 17, 2020
Plaintiff-Appellee, 9:10 a.m.
v No. 350386
Kent Circuit Court
MICHAEL DEAN DUPRE, LC No. 18-007432-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE , P.J., and MARKEY and BORRELLO, JJ.
BORRELLO, J.
Defendant, Michael Dean Dupre, appeals by leave granted1 following a conditional no-
contest plea conviction of operating while visibly impaired (OWVI), MCL 257.625(3). On appeal,
defendant argues that the trial court erred when it determined that the Michigan Medical Marihuana
Act (MMMA), MCL 333.26421 et seq., permits a defendant to be convicted of OWVI because the
plain language of the MMMA does not allow for such a conviction. For the reasons set forth in
this opinion, we affirm.
I. BACKGROUND
Defendant was charged with one count of operating while intoxicated (OWI),
MCL 257.625(1). In advance of trial, defendant moved for special jury instructions, arguing that
our Supreme Court has held that medical marijuana2 card holders are allowed to drive while
1
We granted defendant’s application for leave to appeal, limiting the issues on appeal to the issues
raised in the application and supporting brief. See People v Dupree, unpublished order of the
Court of Appeals, entered October 9, 2019 (Docket No. 350386).
2
Following our common practice, we will use the spelling “marijuana” unless directly quoting a
statute. See Braska v Challenge Mfg. Co., 307 Mich. App. 340, 365 n 1; 837 NW2d 289 (2014).
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internally possessing marijuana provided the driver is not “under the influence.”3 Defendant
argued that, under the MMMA, a medical marijuana card holder cannot be convicted of OWVI if
marijuana was the substance impairing him or her. Rather, the MMMA required the prosecution
to prove that defendant was under the influence of marijuana when he was driving, a higher
standard than visibly impaired. The trial court disagreed, and defendant entered a conditional no-
contest plea to OWVI. This Court granted leave to appeal on the issue whether the MMMA allows
a registered patient to be convicted of OWVI.
II. ANALYSIS
This case involves the interplay between the MMMA and Michigan’s motor vehicle code,
MCL 257.1 et seq. Accordingly, this appeal involves issues of statutory interpretation, which are
questions of law that we review de novo. Braska v Challenge Mfg. Co., 307 Mich. App. 340, 352;
861 NW2d 289 (2014).
The primary goal of statutory interpretation is to ascertain and give effect to the
Legislature’s intent as expressed by the language of the statute. If the statutory
language is clear and unambiguous, judicial construction is neither required nor
permitted; the statute must be enforced as written. Regarding voter-initiated
statutes such as the MMMA, the intent of the electors governs the interpretation of
the statute. The statute’s plain language is the most reliable evidence of the
electors’ intent. [Id. (quotation marks and citations omitted).]
In People v Kolanek, 491 Mich. 382, 393-394; 817 NW2d 528 (2012), our Supreme Court
recounted the implementation of the MMMA:
The MMMA was proposed in a citizen’s initiative petition, was elector-
approved in November 2008, and became effective December 4, 2008. The
purpose of the MMMA is to allow a limited class of individuals the medical use of
marijuana, and the act declares this purpose to be an “effort for the health and
welfare of [Michigan] citizens.” To meet this end, the MMMA defines the
parameters of legal medical-marijuana use, promulgates a scheme for regulating
registered patient use and administering the act, and provides for an affirmative
defense, as well as penalties for violating the MMMA. [Quoting
MCL 333.26422(c); alteration in original; first citation omitted.]
The Kolanek Court explained that, when reviewing the MMMA, the “goal is to ascertain
and give effect to the intent of the electorate, rather than the Legislature, as reflected in the
language of the law itself.” Id. at 397.
The Kolanek Court set forth basic principles behind sections of the MMMA. For example,
Section 4 of the MMMA allows a qualifying patient who has been issued or possesses a registry
3
MCL 333.26427(b)(4) states that the MMMA “does not permit any person to . . . [o]perate,
navigate, or be in actual physical control of any motor vehicle . . . while under the influence of
marihuana.”
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identification card to use marijuana as a medical treatment. Id. at 394-396; see MCL 333.26424.
This section grants qualifying patients broad immunity from prosecution. Kolanek, 491 Mich.
at 394-396. Section 7 of the MMMA on the other hand, prohibits specific acts that negate
immunity. Id. at 399-400; see MCL 333.26427. More specifically, and as relevant herein, § 7
does not permit any person to “ ‘[o]perate, navigate, or in be in actual physical control of any
motor vehicle . . . while under the influence of marihuana.’ ” Kolanek, 491 Mich. at 400, quoting
MCL 333.26427(b)(4).4 As this Court has previously observed,
The MMMA also contains a broadly worded provision to ensure that
qualifying individuals who adhere to the terms of the MMMA do not suffer
penalties for their use of marijuana for medicinal purposes. Specifically, MCL
333.26427(e) provides “[a]ll 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.” Thus, to
the extent another law would penalize an individual for using medical marijuana in
accordance with the MMMA, that law is superseded by the MMMA. [Braska, 307
Mich. App. at 355, citing People v Koon, 494 Mich. 1, 8-9; 832 NW2d 724 (2013).]
Our state’s motor vehicle code prohibits individuals from operating motor vehicles under
certain circumstances. The OWI statute, MCL 257.625(1), prohibits a person from operating a
motor vehicle “if the person is operating while intoxicated.” The OWVI statute, MCL 257.625(3),
prohibits a person from operating a motor vehicle when, “due to the consumption of alcoholic
liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor,
a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle
is visibly impaired.” To obtain a conviction of OWVI, “the prosecution must present evidence to
establish beyond a reasonable doubt that consumption of [a listed substance] weakened or reduced
the defendant’s ability to drive such that the defendant drove with less ability than would an
ordinary, careful, and prudent driver.” People v Mikulen, 324 Mich. App. 14, 22; 919 NW2d 454
(2018). OWVI is a lesser included offense of OWI. See People v Lambert, 395 Mich. 296, 305;
235 NW2d 338 (1975).
The Lambert Court provided sample jury instructions that trial courts could give to explain
the difference between OWI and OWVI:
The distinction between the crime of driving under the influence of
intoxicating liquor and the lesser included offense of driving while ability is visibly
impaired is the degree of intoxication which the people must prove.
To prove driving under the influence of intoxicating liquor, the people must
prove that defendant’s ability to drive was substantially and materially affected by
consumption of intoxicating liquor.
4
In addition to the immunity granted to qualifying patients in § 4, § 8 of the MMMA states that a
patient “ ’may assert the medical purpose for using marihuana as a defense to any prosecution
involving marihuana,’ ” subject to the limitations in § 7. Kolanek, 491 Mich. at 396-397, quoting
MCL 333.26428(a).
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To prove driving while ability is visibly impaired, the people must prove
that defendant’s ability to drive was so weakened or reduced by consumption of
intoxicating liquor that defendant drove with less ability than would an ordinary,
careful and prudent driver. Such weakening or reduction of ability to drive must
be visible to an ordinary, observant person. [Id. (quotation marks omitted); see also
Mikulen, 324 Mich. App. at 22-23.]
According to the Mikulen Court, the Legislature created the offense of OWVI, “to address those
situations in which a defendant’s level of intoxication and resulting impairment does not suffice
to establish OWI, yet the defendant still presents a danger to the public because his or her ability
to operate the vehicle is visibly impaired.” Mikulen, 324 Mich. App. at 22-23 (quotation marks
omitted).
In Koon, our Supreme Court examined the interplay between the MMMA and our state’s
motor vehicle code. The defendant in Koon was charged with operating a motor vehicle with the
presence of a schedule 1 controlled substance—marijuana—in his body under MCL 257.625(8), a
zero-tolerance provision.5 Koon, 494 Mich. at 3, 5. The defendant argued, however, that the
MMMA’s immunity provision prevented a registered patient’s prosecution unless the patient drove
“ ‘under the influence’ ” of marijuana. Id. at 4, quoting MCL 333.26427(b)(4). The defendant
additionally argued that “the MMMA resolves conflicts between all other acts and the MMMA by
exempting the medical use of marijuana from the application of any inconsistent act.” Koon, 494
Mich. at 4.
The Koon Court held that the MMMA was “inconsistent with, and therefore supersedes,”
the zero-tolerance provision, MCL 257.625(8). Koon, 494 Mich. at 8-9. As to the meaning of the
phrase “under the influence,” MCL 333.26427(b)(4), the Koon Court explained:
The MMMA, however, does not define what it means to be “under the
influence” of marijuana. While we need not set exact parameters of when a person
is “under the influence,” we conclude that it contemplates something more than
having any amount of marijuana in one’s system and requires some effect on the
person. Thus, taking the MMMA’s provisions together, the act’s protections extend
to a registered patient who internally possesses marijuana while operating a vehicle
unless the patient is under the influence of marijuana. In contrast, the Michigan
Vehicle Code’s zero-tolerance provision prohibits the operation of a motor vehicle
5
MCL 257.625(8) provides as follows:
A person, whether licensed or not, shall not operate a vehicle upon a
highway or other place open to the general public or generally accessible to motor
vehicles, including an area designated for the parking of vehicles, within this state
if the person has in his or her body any amount of a controlled substance listed in
schedule 1 under section 7212 of the public health code, 1978 PA 368,
MCL 333.7212, or a rule promulgated under that section, or of a controlled
substance described in section 7214(a)(iv) of the public health code, 1978 PA 368,
MCL 333.7214.
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by a driver with an infinitesimal amount of marijuana in his or her system even if
the infinitesimal amount of marijuana has no influence on the driver.
The immunity from prosecution provided under the MMMA to a registered
patient who drives with indications of marijuana in his or her system but is not
otherwise under the influence of marijuana inescapably conflicts with the Michigan
Vehicle Code’s prohibition against a person driving with any amount of marijuana
in his or her system. When the MMMA conflicts with another statute, the MMMA
provides that “[a]ll other acts and parts of acts inconsistent with [the MMMA] do
not apply to the medical use of marihuana . . . .” Consequently, the Michigan
Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent
with the MMMA, does not apply to the medical use of marijuana. [Koon, 494 Mich.
at 6-7 (citations omitted; alterations and ellipsis in original).]
In footnote 14, the Koon Court also explained that “under the influence” is a term of art used
throughout the motor vehicle code. Id. at 6 n 14. According to the Koon Court, Black Law’s
Dictionary defines “under the influence” as “deprived of clearness of mind and self-control
because of drugs or alcohol.” Id. (quotation marks omitted).6
Examination of this Court’s decision in Braska reveals a similar analytical framework
when considering the interplay between statutes and the MMMA. In Barska, this Court was tasked
with determining whether the MMMA precluded recovery of unemployment benefits by a person
testing positive for marijuana who also possessed a valid MMMA registration card. As was the
case in Koon, in Braska, the person claiming the benefit of the MMMA was simply found to have
marijuana in his system, which at the time constituted a disqualifying event under MCL
421.29(1)(m). This Court held, in the absence of any evidence that the claimant’s use of medical
marijuana was not in conformance with the terms of the MMMA, that the “denial of benefits
constituted an improper penalty for the medical use of marijuana under the MMMA… .” Braska,
307 Mich. App. at 365.
The Koon and Braska Courts made clear that in the absence of any evidence of an
impairment as a result of marijuana usage, the MMMA affords certain protections to defendants
in criminal cases and to claimants in unemployment cases. The decisions in Koon and Braska also
stand for the proposition that where a statute is inconsistent with the MMMA, the MMMA
supersedes that statute. Koon, 491 Mich. at 8-9; Braska, 307 Mich. App. at 365. Here, defendant
argues that our Supreme Court’s holding in Koon only allows for an OWI conviction for persons
holding a valid MMMA registration card if they are shown to be “under the influence.” We do
not read Koon to compel such a holding.
In order to ascertain whether, in a prosecution for OWI based on the consumption of
marijuana, the state must prove that a defendant is “under the influence” of marijuana, as that
phrase is defined in the Michigan motor vehicle code, we determine whether that phrase means
6
Although the Koon Court cited the ninth edition of Black’s Law Dictionary, the eleventh edition
reflects an identical definition. Black’s Law Dictionary (11th ed).
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the same thing in § 7 of the MMMA, MCL 333.26427(b)(4), as it does in the OWI statute, MCL
257.625(1)(a).
We concur with the state’s argument that if the Legislature had enacted the MMMA,
defendant’s argument would have substantial merit because the Legislature would have
presumably known and adopted the motor vehicle code’s definition of “under the influence.” See
Koon, 494 Mich. at 6 n 14 (explaining that “under the influence” is a term of art in the motor vehicle
code); see also People v Riddle, 467 Mich. 116, 126; 649 NW2d 30 (2002) (explaining that when
the Legislature borrows a term of art, “it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless otherwise instructed.”). But the Legislature
did not approve the MMMA; the electorate did. Kolanek, 491 Mich. at 397. Therefore, the
MMMA’s words must be interpreted through their ordinary and plain meaning as understood by
the electors. Id. As the disagreement about the phrase’s meaning among the parties in this case
indicates, the meaning of “under the influence” in the MMMA, MCL 333.26427(b)(4), as the
electors would have understood it, is ambiguous. See People v Hall, 499 Mich. 446, 454; 884
NW2d 561 (2016) (explaining that “[a] statute is ambiguous if . . . the text is equally susceptible
to more than one meaning.”). Our Supreme Court alluded to this ambiguity in Koon when, as we
have previously quoted, it stated that “under the influence” means “something more than having
any amount of marijuana in one’s system . . . ,” but declined to adopt a definition. Koon, 494 Mich.
at 6 (emphasis added). Therefore, further judicial construction is permitted. See Braska, 307 Mich
App at 352.
Although the Koon Court did not define what was specifically required to meet this higher
threshold, the Koon Court did state that “under the influence” “requires some effect on the person.”
Koon, 494 Mich. at 6 (emphasis added). As previously stated, to be convicted of OWVI, the
prosecution must prove that a driver had “less ability than an ordinary, careful and prudent driver”
because he or she internally possessed a listed substance. Mikulen, 324 Mich. App. at 22. In accord
with our Supreme Court’s statement in Koon, here, in order to obtain a conviction of OWVI, the
state must demonstrate that defendant’s ingestion of marijuana had some effect on him such that
it lowered his ability to operate a vehicle. It is also important to note that the Koon Court did not
use the phrase “substantially and materially affected,” which would have mirrored the level of
impairment the state must prove to convict a defendant of OWI. See Koon, 494 Mich. at 6; see
also Lambert, 395 Mich. at 305. This choice of phrase—both explicit and implicit—appears telling
as to the Koon Court’s understanding of the MMMA and its interaction with the motor vehicle
code. When the Koon Court stated that “under the influence” requires “some effect on the driver,”
it choose not to apply the “substantially and materially” standard that would have indicated an
adoption within the MMMA of “under the influence” as defined in the OWI statute. Therefore,
although the Koon Court held that the plain text of the MMMA reflects the electors’ intent to allow
for registered patients to internally possess marijuana, it did not state—as defendant argues—that
the electors’ intended that a registered patient who internally possesses marijuana be immune from
prosecution of OWVI. See Koon, 494 Mich. at 6-7.
To the contrary, our Supreme Court has appeared, in light of marijuana legalization, to treat
marijuana as if the electors intended that marijuana be treated similar to alcohol. See id. at 8. A
person can be convicted of OWVI for alcohol use. MCL 257.625(3). Similarly, the zero-tolerance
provision, which the Koon Court held does not apply to the medical use of marijuana, Koon, 494
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Mich at 7, does not apply to alcohol. See MCL 257.625(8). Hence, as previously alluded to,
defendant’s reading of the MMMA would require this Court to conclude that the electors’ intent
was to give registered patients internally possessing marijuana greater protections than average
citizens internally possessing alcohol. The language of the MMMA is devoid of such language,
and defendant presents no evidence that would lead us to conclude this was the electors’ intent.
Rather, our reading § 7 of the MMMA leads us to conclude that the limitations on immunity
appear to be situations in which public safety or public health intersect with a registered patient’s
use of medical marijuana. For example, registered patients cannot smoke marijuana in any public
place or on public transportation, MCL 333.26427(b)(3), and they cannot “[u]ndertake any task
under the influence of marihuana, when doing so would constitute negligence,”
MCL 333.26427(b)(1). Because a driver operates a vehicle while visibly impaired if they drive
with “less ability than would an ordinary, careful and prudent driver,” the driver puts public safety
at risk by doing so. Mikulen, 324 Mich. App. at 22. In short, a driver operating while visibly
impaired appears to do so negligently, in violation of MCL 333.26427(b)(1). Therefore, we
discern no intent within the MMMA to immunize the visibly impaired driver from prosecution.
This connection mirrors what this Court has held was the Legislature’s intent in passing
the OWVI statute: to allow the government to protect the public from a driver when his or her
“level of intoxication and resulting impairment does not suffice to establish OWI, yet the defendant
still presents a danger to the public because his or her ability to operate the vehicle is visibly
impaired.” Mikulen, 324 Mich. App. at 22-23 (quotation marks omitted; emphasis added).
Moreover, the MMMA itself declares that its purpose is “to be an ‘effort for the health and welfare
of [Michigan] citizens.’ ” Kolanek, 491 Mich. at 394, quoting MCL 333.26422(c) (alteration in
original).7 MCL 333.26422(c) appears to be direct evidence that the electors’ intent in passing the
7
MCL 333.26422 provides as follows:
Findings.
The people of the State of Michigan find and declare that:
(a) Modern medical research, including as found by the National Academy
of Sciences’ Institute of Medicine in a March 1999 report, has discovered beneficial
uses for marihuana in treating or alleviating the pain, nausea, and other symptoms
associated with a variety of debilitating medical conditions.
(b) Data from the Federal Bureau of Investigation Uniform Crime Reports
and the Compendium of Federal Justice Statistics show that approximately 99 out
of every 100 marihuana arrests in the United States are made under state law, rather
than under federal law. Consequently, changing state law will have the practical
effect of protecting from arrest the vast majority of seriously ill people who have a
medical need to use marihuana.
(c) Although federal law currently prohibits any use of marihuana except
under very limited circumstances, states are not required to enforce federal law or
prosecute people for engaging in activities prohibited by federal law. The laws of
Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico,
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MMMA was the improvement of health and safety of citizens, not just registered patients.
Defendant’s theory that the MMMA precludes registered patients from being convicted of OWVI
would put ordinary citizens and registered patients alike in danger because registered patients
would be allowed to drive with “less ability than the ordinary, careful, and prudent driver” without
fear of prosecution. See Mikulen, 324 Mich. App. at 22-23.
In sum, we conclude that the MMMA does not supersede the OWVI statute. “Under the
influence” as used in MCL 333.26427(b)(4) is not limited in meaning to how that phrase is
understood with regard to the OWI statute, MCL 257.625(1). A person may be considered “under
the influence” of marijuana if it can be shown that consumption of marijuana had “some effect on
the person,” Koon, 494 Mich. at 6, such that it “weakened or reduced the defendant’s ability to
drive such that the defendant drove with less ability than would an ordinary, careful, and prudent
driver.” Mikulen, 324 Mich. App. at 22.
Because we affirm on these grounds, we need not address the prosecution’s alternative
grounds for affirmance.
Affirmed.
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
/s/ Jane E. Markey
Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use
and cultivation of marihuana. Michigan joins in this effort for the health and welfare
of its citizens.
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