People v. DerrorPeople v. Derror
Lead Opinion
In these consolidated appeals, we are called upon to determine whether 11-carboxy-THC, a “metabolite” or byproduct of metabolism created when the body breaks down THC (tetrahydrocannabinol), the psychoactive ingredient of marijuana, is a schedule 1 controlled substance under
Additionally, in Docket No. 129269, we clarify our decision in People v Schaefer,
I. FACTUAL BACKGROUND
In Docket No. 129269, defendant Delores M. Derror was driving east on snow- and slush-covered M-72 when she crossed into oncoming traffic and collided with another vehicle, killing the front-seat passenger, paralyzing two children in the rear seat, and injuring a third child. The accident occurred at approximately 6:00 p.m. Derror admitted that she had smoked marijuana, аt 2:00 p.m., earlier that day. Two blood samples were taken, one at approximately 8:00 p.m. and one at approximately 11:00 p.m. The first blood sample reflected 38 nanograms of 11-carboxy-THC per milliliter, and the second contained 31 nanograms of 11-carboxy-THC per milliliter. Derror was charged with operating a motor vehicle with the presence of a schedule 1 controlled substance in her body, causing death and serious injury, under
In Docket No. 129364, defendant Dennis Kurts was stopped at approximately 9:00 p.m. for driving erratically. The officer smelled the odor of alcohol on Kurts. Kurts also had glassy, bloodshot eyes. Kurts admitted consuming two beers. During a pat-down search, the officer found a marijuana pipe in Kurts’ pocket. Kurts then admitted that he had smoked marijuana a half-hour earlier. A blood sample was taken at approximately 10:00 p.m. Tests revealed that his blood contained eight nanograms of 11-carboxy-THC per milliliter and 0.07 grams of alcohol per 100 milliliters. Kurts was charged with operating a motor vehicle while intoxicated, third offense,
The experts agreed that carboxy THC is a “metabolite,” or byproduct of metabolism, created in the human body during the body’s biological process of converting marijuana into a water-soluble form that can be excreted more easily. Its presence in the blood conclusively proves that a person ingested THC at some point in time. However, carboxy THC itself has no pharmacological effect on the body and its level in the blood correlates poorly, if at all, to an individual’s level of THC-related impairment. In fact, carboxy THC could remain in the blood long after all THC has gone, as THC quickly leaves the blood and enters the body’s tissues. [People v Derror (On Reconsideration),268 Mich App 67 , 71-72;706 NW2d 451 (2005).]
The prosecution expert in Derror, Dr. Michelle Glinn, further testified, without dispute:
THC is taken up into the brain and into fat cells and into other tissues, and it leaves its effects on the brain and central nervous system for quite a while after it’s not detectible in the blood any further.
The effects of — it causes chemical changes in the brain, basically, that persist for quite a while. And you can document defects in lab studies of THC beyond the time when it’s no longer detectible in the blood.
In discussing the structural differences between THC and 11-carboxy-THC, Dr. Glinn explained, also without dispute, that THC and 11-carboxy-THC are identical except that in 11-carboxy-THC, two oxygen atoms are added to, and three hydrogen atoms are remоved from, the eleventh carbon to make it more water soluble and easier to excrete.
Following the evidentiary hearings, the trial courts in both cases determined that the Legislature did not intend to include 11-carboxy-THC as a schedule 1 controlled substance because it has no pharmacological effect on the human body. The trial courts, however, reached divergent results regarding the effect of this conclusion. In Kurts, the trial court granted Kurts’s motion to dismiss the charge of operating a motor vehicle while under the influence of a schedule 1 controlled substance in violation of
The prosecutors in both cases appealed to the Court of Appeals, which consolidated the appeals and affirmed the trial courts’ rulings that 11-carboxy-THC is not a schedule 1 controlled substance.
The prosecutors in both cases applied for leave to appeal the Court of Appeals determination that 11-carboxy-THC is not a schedule 1 controlled substance within the meaning of
II. STANDARD OF REVIEW
Whether 11-carboxy-THC is a schedule 1 controlled substance under
Whether, in a prosecution involving
III. ll-CARBOXY-THC IS A SCHEDULE 1 CONTROLLED SUBSTANCE UNDER
A person ... shall not operate a vehicle ... 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 ....
The term “marijuana” is defined in
“Marihuana” means all parts of the plant Canabis [sic] sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.
In addition to specifically listing marijuana,
(d) Except as provided in subsection (2), synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis and synthetic substances, derivatives, and their isomers with similar chemical structure or pharmacological activity, or both, such as the following, are included in schedule 1:
(i) A1 cis or trans tetrahydrocannabinol, and their optical isomers.
(ii) A6 cis or trans tetrahydrocannabinol, and their opticalisomers.
(iii) A3,4 cis or trans tetrahydrocannabinol, and their optical isomers.
(e) Compounds of structures of substances referred to in subdivision (d), regardless of numerical designation of atomic positions, are included.
The Court of Apрeals held that 11-carboxy-THC was not a schedule 1 controlled substance under
THC is the main psychoactive substance found in the cannabis plant. 11-carboxy-THC is a metabolite of THC in that it is produced when the body metabolizes THC. See Stedman’s Online Medical Dictionary, which defines “metabolite” as “[a]ny product or substrate (foodstuff, intermediate, waste product) of metabolism, especially of catabolism.”
We hold that the term “derivative” encompasses metabolites. We construe “all words and phrases... according to the common and approved usage of the language,” but give terms of art and “technical words and phrases” any “peculiar and appropriate meaning” ascribed by the Legislature or acquired in common usage in the absence of legislative definition.
Medical dictionaries have defined the term “derivative” in a variety of ways. Stedman’s Online Medical Dictionary defines a “derivative” as “[sjomething produced by modification of something preexisting,” or “[sjpecifically, a chemical compound that may be produced from another compound of similar structure in one or more steps, as in replacement of H by an alkyl, acyl, or amino group.”
Merriam-Webster’s Online Medical Dictionary defines a “derivative” as “something that is obtained from, grows out of, or results from an earlier or more fundamental state or condition,” or “a chemical substance related structurally to another substance and theoretically derivable from it,” or “a substance that can be made from another substance.”
Defendants agree that 11-carboxy-THC potentially qualifies as a derivative under the above definitions, but contend that defining the term “derivative” broadly under the Public Health Code would produce nonsensical results because it would include almost every chemical substance, including carbon dioxide, which is also a metabolite of THC. We agree that most of the above definitions of “derivative” would encompass metabolites such as carbon dioxide. Not all of the above definitions, however, do so. The second part of the Merriam-Webster’s Online Medical Dictionary describes a “derivative” as a “chemical substance related structurally to another substance and theoretically derivable from it.” This definition seems to include 11-carboxy-THC as a derivative of THC because it is related structurally to THC, but the definition is not so broad as to include other metabolites such as carbon dioxide.
Given these divergent definitions, we must choose one that most closely effectuates the Legislature’s intent. Stanton v Battle Creek,
The Court of Appeals further held, and the dissent agrees, that 11-carboxy-THC was not a schedule 1 controlled substance because it has no pharmacological effect on the human body. Contrary to the Court of Appeals holding and the dissent’s contention, neither
The Court of Appeals also held that 11-carboxy-THC was not a schedule 1 controlled substance under
Because 11-carboxy-THC qualifies as a derivative, and since derivatives are included within the definition of marijuana, which
IV
In Docket No. 129269, defendant Derror was charged with violating both
(4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime ....
(5) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a felony....
(8) A person, whether licensed or not, shall not operate a vehicle... 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 ....
In interpreting the above provisions, the trial court held that the prosecutor had to prove that Derror’s intoxication was a proximate cause of the accident. The Court of Appeals originally affirmed this holding, relying on People v Lardie,
We, however, subsequently overruled portions of the Lardie case in the companion cases of People v Schaefer and
Section 625(4) plainly requires that the victim’s death be caused by the defendant’s operation of the vehicle, not the defendant’s intoxicated operation. Thus, the manner in which the defendant’s intoxication affected his or her operation of the vehicle is unrelated to the causation element of the crime. The defendant’s status as “intoxicated” is a separate element of the offense used to identify the class of persons subject to liability under § 625(4). [Id. at 433 (emphasis in original).]
We further held:
[T]he prosеcution, in proving OUIL causing death, must establish beyond a reasonable doubt that (1) the defendant was operating his or her motor vehicle in violation ofMCL 257.625(1) , (3), or (8); (2) the defendant voluntarily decided to drive, knowing that he or she had consumed an intoxicating agent and might be intoxicated; and (3) the defendant’s operation of the motor vehicle caused the victim’s death. [Id. at 434, citingMCL 257.625(4) .]
The Court of Appeals granted reconsideration in the Derror case in light of our decision in Schaefer, and held that the prosecution need only prove that Derror’s driving, not her intoxication, was the proximate cause of the accident.
We agree with the Court of Appeals application of Schaefer in this case to hold that the prosecution need only prove that Derror’s driving, not her intoxication, was the proximate cause of the accident.
The dissent claims that the majority’s interpretation of
First, the only constitutional issue raised by defendant in his Statement of Questions was that the “expansion” of the definition of “marijuana” rendered the statute unconstitutionally vague and overbroad. Neither party raised the first and third constitutional concerns posed by the dissent. That the justices inquired at oral argument regarding the Legislature’s power to enact the statute in question does not preserve these constitutional issues as the dissеnt suggests. In his dissent in Mack v Detroit,
In reaching its holding, the majority disregards the foundational principles of our adversarial system of adjudication. As protectors of justice, we refrain from deciding issues without giving each party a full and fair opportunity to be heard. But not for this concern, the judicially created doctrine of standing would be discarded, as it ensures “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination ....” However, the majority has disregarded such considerations, misconstruing the proper scope of its authority, by making dispositive an issue never argued or briefed by the parties. Neither of the parties has had the benefit of sharing with this Court their thoughts on the effect of the tort immunity act on this case, though the implications of the majority’s holding are vast. Never before have I witnessed such overreaching conduct from members of this Court. [Id. at 213 (CAVANAGH, J., dissenting) (citation omitted).]
Nevertheless, we will address these unpreserved constitutional issues. First, the dissent claims that our interpretation of the statute does not provide an ordinary person with notice of prohibited conduct. To the contrary, the plain language of the statute is clear and unambiguous.
The dissent next argues that our interpretation of the statute is unconstitutionally vague because it provides the potential for arbitrary and discriminatory enforcement. Specifically, it claims that our interpretation of the statute makes criminals of persons who have merely inhaled
As previously stated,
Moreover, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though doubtful cases could be hypothesized. See United States v Petrillo,
The Constitution has erected procedural safeguards to protect against conviction for crime except for violation, of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more. [Id. at 7-8.]
In this case, both defendants admitted smoking marijuana just hours before driving. No question exists that that statute proscribes their conduct. Moreover, the statute sufficiently conveyed that operating a vehicle after smoking marijuana is illegal. Because a hypothetical case could be posed where doubts might arise does not render the statute unconstitutionally vague. The statute, as applied to these defendants, is constitutional.
Finally, the dissent contends that our plain language interpretation of the statute does not pass muster under the rational basis test. Initially, we agree that rational basis review is appropriate because the statute is social legislation
The dissent claims that the statute’s objective is to prevent people from driving under the influence of a controlled substance. Not so. The statute’s stated objective
Nevertheless, assuming that the statute’s objective is to prevent persons from driving under the influence of marijuana, the statute passes constitutional muster. While the dissent seemingly concedes that preventing people from driving under the influence of marijuana is a legitimate government objective, it asserts that, under our interpretation, the statute is not rationally related to that objective because 11-carboxy-THC has no pharmacological effect and, therefore, cannot influence the person’s driving. That the statute might apply to some persons who are not actually under “the influence” of marijuana does not render the statute unconstitutional. Rather, under the rational basis standard of review, our only inquiry is whether any conceivable set of facts, either known or that can reasonably be assumed, even if they are debatable, might support the Legislature’s judgment that making it a crime for persons to drive with any amount of 11-carboxy-THC in the body will prevent them from driving under the influence of a controlled substance.
Such a conceivable set of facts certainly exists in this case. It is undisputed that the presence of 11-carboxy-THC conclusively proves that a person, at some point, ingested THC, which is an ingredient in marijuana and which does have a pharmacological effect on the body. It is also undisputed that THC itself begins to break down and leave the bloodstream shortly after entering the body, but that its effects can last long after it is no longer detectible in the blood. It is thus conceivable that the Legislature enacted this statute to further the objective of preventing persons from driving under the influence of marijuana by enabling the prosecution of persons who might be under the influence of THC, but for whom only traces of 11-carboxy-THC, and not THC itself, are still present in the body.
Moreover, under the rational basis test, we do not consider the wisdom of the Legislature’s choice, or whether that choice was made with mathematical nicety, or whether it is most narrowly drawn to obtain its objective, or whether it may be inequitable when put into practice.
In New York City Transit Auth v Beazer,
The Court rejected the plaintiffs’ challenge. After concluding that the transit authority’s blanket exclusion was probably broader than necessary to achieve its goal of ensuring safety, id. at 592, the Court stated that “it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole.” Id. at 593. The same is true here. The goal of the legislation is legitimate. That the Legislature could have conceivably enacted a more perfectly precise statute does not render the current statute constitutionally invalid.
VI. CONCLUSION
We hold that 11-carboxy-THC is a schedule 1 controlled substance under
We reaffirm our holding in Schaefer that the prosecution need only prove that a defendant’s driving, not his or her intoxication, was a proximate cause of the accident. Further, Schaefer’s holding applies to both
We also modify Schaefer to hold that, in a prosecution involving
Notes
People v Derror (On Reconsideration),
Id.
<http://www.stedmans.com/section.cftn/45> (accessed March 8, 2006).
<http://www.stedmans.com/section.cftn/45> (accessed March 8, 2006).
<http://www2.merriam-webster.com/cgi-bin/mwmednlm> (accessed March 8, 2006).
The dissent criticizes our choice of the definition of derivative that most closely effectuates the intent of the Legislature, claiming that because more than one definition exists, the term is ambiguous. Contrary to the dissent’s contention, however, a word is not ambiguous merely because different dictionary definitions exist. Twichel v MIC Gen Ins Corp,
It is possible to find varying dictionary definitions of the term “motor vehicle.” For example, the Random House Webster’s College Dictionary (2001) defines a “motor vehicle” as “an automobile, truck, bus, or similar motor-driven conveyance,” a definition that does not include a forklift. In our view, this definition appropriately reflects the commonly understood meaning of the term. The American Heritage Dictionary (2d College ed), on the other hand, defines “motor vehicle” as “self-propelled, wheeled conveyance that does not run on rails,” a definition, which would arguably include a forklift. Given these divergent definitions, we must choose one that most closely effectuates the Legislature’s intent. Fortunately, our jurisprudence under the governmental tort liability act provides an answer regarding which definition should be selected. As previously noted, it is a basic principle of our state’s jurisprudence that the immunity conferred upon governmental agencies and subdivisions is to be construed broadly and that the statutory exceptions are to be narrowly construed. Thus, this Court must apply a narrow definition to the undefined term “motor vehicle.” [Stanton, supra at 617-618 (citation omitted).]
In choosing which definition of the term “derivative” is most appropriate here, we do not use our own “personal beliefs,” as suggested by the dissent. Rather, we use the plain language of the statute to divine the Legislature’s intent.
The dissent contends that we conclude that 11-carboxy-THC is a derivative of THC because both substances look similar in structure. It further contends that we reach our conclusion by relying on an area of science in which experts do not even agree instead of relying on the plain language of the statute. To the contrary, we conclude that 11-carboxy-THC is a derivative of THC because it is related structurally to THC and is derivable from THC. See Merriam-Webster’s Online Medical Dictionary. We do not rely on expert testimony in reaching our conclusion. Rather, we rely on the plain language of the statutes in question. Specifically, we rely on
The dissent relies on
The administrator shall place a substance in schedule 1 if it finds that the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision. [MCL 333.7211. ]
This statute, however, is silent with regard to the pharmacological effects of a substance. Rather, it mandates the placement of a substance in schedule 1 if the substance has a high potential for abuse. It does not prohibit the inclusion of other substances in schedule 1. In any event, we note that marijuana has been expressly listed as a schedule 1 controlled substance. Because 11-carboxy-THC is included within the definition of “marijuana” as a derivative, it too constitutes a schedule 1 controlled substance.
The dissent contends that our construction of Michigan’s definition of “marijuana” as including 11-carboxy-THC is contrary to and inconsistent with years of federal law. We first note that no federal court has specifically excluded 11-carboxy-THC from the definition of “marijuana.” Moreover, the dissent itself points out that the federal courts that have dealt with similar issues have reached their conclusions by interpreting the legislativе history, rather than the plain language of the analogous federal statute. We are not bound by federal precedent in interpreting state law, Continental Motors Corp v Muskegon Twp,
Additionally, the Legislature has directed that the statute should not only be construed consistently with applicable federal law, but also “liberally construed for the protection of the health, safety, and welfare of the people of this state.”
See, for example,
Id. at 81.
The Legislature has included an “under the influence” requirement in other sections of
See Phillips v Mirac, Inc,
Berman v Parker,
Phillips, supra at 433, quoting Crego v Coleman,
Muskegon Area Rental Ass’n v Muskegon,
Phillips, supra at 434; Muskegon Area Rental, supra at 464; Harvey, supra at 7.
Phillips, supra at 435, quoting Duke Power Co v Carolina Environmental Study Group,
Contrary to the dissent’s contention, we are not “ignor[ing] [our] mandate to reasonably construe a statute to ensure that it is constitutional ....” Post at 355 n 5. Our construction of the statute, which is consistent with the plain language of the statute, does not render the statute unconstitutional. Thus, we need not construe the statute differently.
Dissenting Opinion
(dissenting). Today, the majority holds that 11-carboxy-tetrahydrocannabinol (11-carboxy-THC) is a schedule 1 controlled substance and that a person violates the law if he drives with any amount of 11-carboxy-THC in his body. The full import of this decision can only be understood by recognizing that the majority’s interpretation means that a person can no longer legally drive a car if scientific testing can detect any amount of 11-carboxy-THC in his system. This means that weeks, months, and even years after marijuana was ingested, and long after any risk of impairment has passed, a person cannot drive a car without breaking the law if a test can detect the presence of 11-carboxy-THC. Because I believe that this interpretation disregards the statutory language chosen
11-CARBOXY-THC IS NOT A SCHEDULE 1 CONTROLLED SUBSTANCE BECAUSE IT IS NOT A DERIVATIVE OF MARIJUANA
This case involves an issue of statutory interpretation, and the primary goal of statutory interpretation is to give effect to the intent of the Legislature. The first step is to review the language of the statute. If the statutоry language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute, and judicial construction is not permissible. In re MCI Telecom, Complaint,
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.... [Emphasis added.]
Marijuana itself is a schedule 1 controlled substance.
“Marihuana” means all parts of the plant Canabis [sic] sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. [MCL 333.7106(3) .]
Further,
Except as provided in subsection (2), synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis and synthetic substances, derivatives, and their isomers with similar chemical structure or pharmacological activity, or both, such as the following, are included in schedule 1:
(i) A1 ****cis or trans tetrahydrocannabinol, and their optical isomers.
(ii) A6 cis or trans tetrahydrocannabinol, and their optical isomers.
(iii) A3,4 cis or trans tetrahydrocannabinol, and their optical isomers.
Notably, when construing
Further, the District of Columbia Court of Appeals held that “the definition of marijuana was intended to include those parts of marijuаna which contain THC and to exclude those parts which do not.” United States v Walton, 168 US App DC 305, 307; 514 F2d 201 (1975). Numerous courts have also long held that the statute is intended to outlaw “all species of marijuana containing tetrahydrocannabinol. . . .” See, e.g., United States v Lupo, 652 F2d 723, 728 (CA 7, 1981) (emphasis added). Therefore, construing Michigan’s definition of “marijuana” to include 11-carboxy-THC is contrary to and inconsistent with years of federal law.
While the majority subtly criticizes the federal courts for using legislative history to reach their conclusions, as opposed to the “plain language” of the statute, the majority itself is guilty of ignoring the plain language of
To decide this case, the majority recognizes that the term “derivative” needs to be defined, so it сonsulted scientific dictionaries to do so. The majority found that there were “divergent” definitions of “derivative” to such a degree that the members of the majority had to choose the one they believed would best effectuate the Legislature’s intent, using nothing to guide them except their beliefs.
Simply, contrary to the majority’s bold assertions, there is nothing plain or unambiguous
Moreover, not only does the majority ignore federal law in its analysis, it also ignores other relevant statutory provisions. To support its outcome, the majority merely cites various sources for the definition of “derivative” and notes that these sources offer divergent definitions. However, the majority resolves this ambiguity by ultimately selecting a definition that describes a derivative as a “ ‘chemical substance related structurally to another substance and theoretically derivable from it.’ ” Ante at 328, quoting Merriam-Webster’s Online Medical Dictionary. The majority does this because it believes that this definition most closely effectuates the intent of the Legislature.
But the majority ignores other statutory provisions that indicate that 11-carboxy-THC is not a schedule 1 controlled substance. Contrary to the majority’s position,
Our Legislature has stated that a substance is placed “in schedule 1 if [the administrator] finds that the substance has high potential for abuse and has no accepted medical use in treatment in the United
Other factors listed by the Legislature to consider in making a determination about the classification of a substance are:
(a) The actual or relative potential for abuse.
(b) The scientific evidence of its pharmacological effect, if known.
(c) The state of current scientific knowledge regarding the substance.
(d) The history and current pattern of abuse.
(e) The scope, duration, and significance of abuse.
(f) The risk to the public health.
(g) The potential of the substance to produce psychic or physiological dependence liability.
(h) Whether the substance is an immediate precursor of a substance already controlled under this article. [MCL 333.7202. ]
None of these factors that are used to determine if a substance should be classified as a schedule 1 controlled substance applies to 11-carboxy-THC. 11-carboxy-THC has no pharmacological effect on a person, and, therefore, it has no potential for abuse or potential to produce dependence. Further, as expert witness Dr. Michael Evans testified, it is impossible to take 11-carboxy-THC and make it into THC; therefore, it is not an immediate precursor of a substance already classified as a schedule 1 controlled substance.
Our Legislature selected these factors and the words “high potential for abuse” for a reason — they cannot be ignored by the majority merely because they cannot be reconciled with the majority’s rationale. “It is a well-established rule of statutory construction that provisions of a statute must be construed in light of the other provisions of the statute to carry out the apparent purpose of the Legislature.” Farrington v Total Petroleum, Inc,
Further, the majority makes pronouncements such as 11-carboxy-THC is a derivative “because it is a chemical compound produced when the body metabolizes THC, which is a compound of similar structure.” Ante at 326-327. The majority then states that “THC and 11-carboxy-THC are identical except that in 11-carboxy-THC, two oxygen atoms are added to and three hydrogen atoms are removed from the eleventh carbon to make it more water soluble and easier to excrete.” Ante at 327. But merely because a compound looks similar in its basic chemical formula does not mean that it is a compound of similar structure for the purposes of controlled substance classification methods. Water and hydrogen peroxide look similar — H20 and H202 — but they are, of course, very different substances. One is a substance you must drink to survive; the other will kill you if you drink it. Instead
Incredibly, the majority attempts to present the expert testimony as being in agreement. See ante at 329 n 8. Yet this inaccurate representation is not supported when one actually reads and considers the full testimony of the experts. The experts are not in agreement about whether 11-carboxy-THC is a derivative of marijuana and, therefore, a schedule 1 controlled substance. While the experts may be in agreement over some scientific principles, they disagree over the key issue in this case, and it is misleading to present this in any other manner. Notably, Dr. Daniel McCoy and Dr. Evans both testified that ll-carboxy-THC was a metabolite, but it was not a derivative and, therefore, ll-carboxyTHC was not a schedule 1 controlled substance. As Dr. McCoy explained, under the interpretation adopted by the majority “everything is a derivative, every chemical on earth can be derived from something else.” He further explained that, using the majority’s interpretation, if THC is burned, “we will develop a lot of chemicals, including carbon dioxide, to the extent a derivative is something that comes from and has similar chemical structure to some part, carbon dioxide would be scheduled material.....” Dr. Evans testified, “It [ll-carboxy-THC] is not a derivative.... To call car-boxy THC a derivative of THC would be like — carbon dioxide is a metabolite of THC. You’ll get that when you exhale or take in a breath.... If you were to call carboxy THC a derivative, you would have to call carbon dioxide a derivative of THC . ...” In short, Dr. McCoy and Dr. Evans disagreed with the majority’s interpretation because the rationale that would support classifying ll-carboxy-THC as a derivative would also apply to carbon dioxide; therefore, a person could be guilty of violating
As it pertains to
Finally, the Legislature knows how to use the term “metabolite” when it wants to. In
Thus, the majority’s interpretation that 11-carboxy-THC is a schedule 1 controlled substance is flawed for numerous reasons. Namely, the interpretation ignores federal case law, the statutory language chosen by our Legislature, and other relevant statutory provisions, as well as the basic tenets of statutory construction. Notably, the majority’s unsupportable theory results in an interpretation that is not just analytically flawed but is also unconstitutional.
THE ISSUE WHETHER THE MAJORITY’S INTERPRETATION OF THE STATUTE IS UNCONSTITUTIONAL IS PROPERLY PRESERVED
The issue whether the majority’s interpretation of the statute is unconstitutional has been properly raised and preserved. Contrary to the majority’s assertion that the constitutional issue has not been properly preserved, defendant Derror did sufficiently raise this issue. Defendant Derror’s first question presented states, “IS CARBOXY THC, A METABOLITE OF MARIJUANA WITH NO PHARMACOLOGIC EFFECTS, A SCHEDULE 1 CONTROLLED SUBSTANCE?” One of the reasons that defendant Derror argues 11-carboxy-THC is not a schedule 1 controlled substance is that such an interpretation would be unconstitutional. This is explicitly expressed in one of the subheadings addressing this issue, which states, “The Definition Of Marijuana In
Further, defendant Derror’s second question presented states, “CAN
THE MAJORITY’S INTERPRETATION OF THE STATUTE IS UNCONSTITUTIONAL
It is indisputable that due process requires that citizens “be apprised of conduct which a criminal statute prohibits.” People v Turmon,
The majority’s interpretation of the statute is unconstitutional for three reasons. First, the majority’s interpretation of the statute does not provide an ordinary person with notice about what conduct is prohibited.
The majority’s interpretation now criminalizes a broad range of conduct and makes criminals out of people who have no knowledge of the conduct that they must now seek to avoid. The majority’s interpretation even makes criminals out of people who have inhaled marijuana smoke merely through passive inhalation. Dr. Evans, who testified in a hearing regarding defendant Kurts and who has worked with numerous agencies, including the United States Drug Enforcement Administration, stated, “You can get up to levels of five, eight, or ten nannograms [sic] per mil of carboxy THC in the blood by passive inhalation.”
Huestis, Cannabis (marijuana) — Effects on human behavior and performance, 14 Forensic Sci Rev 15, 32 (2002).
There is scientific evidence that 11-carboxy-THC can indeed get into a person’s body through passive inhalation. This is contrary to the majority’s assertion that 11-carboxy-THC is only present in a person’s body after they have “done something illegal.” Ante at 338. Scientific evidence of 11-carboxy-THC being present after passive inhalation means that a person who attends a concert or a gathering where someone is smoking marijuana and passively inhales this smoke will have 11-carboxy-THC in his body. With no standard in place to use as a cutoff, it does not matter what level of 11-carboxy-THC this inhalation results in because, under the majority’s interpretation of the statute, it is now illegal for that person and any person who has ever ingested marijuana to drive if 11-carboxy-THC can be detected. As the trial court in the Derror case correctly noted, under the majority’s theory, “as long as we can identify [ll-]carboxy-THC in [a person’s] system, apparently they can’t be on the highway and, as science progresses, that could be for years.”
Because of the tremendous potential for arbitrary and discriminatory enforcement in charging Michigan citizens with a crime under the majority’s interpretation, the statute is unconstitutional for this second reason as well. The United States Supreme Court has recognized that a critical aspect of the vagueness doctrine is “ ‘the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender, supra at 358, quoting Smith v Goguen,
The majority’s belief that it is a crime to operate a vehicle with any amount of 11-carboxy-THC in a person’s body means that a prosecutor can choose to charge a person found to have 0.01 nanograms of 11-carboxy-THC in his system if the prosecutor chooses. In the Kurts case, the trial court also discussed the possibility that a person could be charged weeks after ingesting marijuana, stating that “maybe you can test positive [for 11-carboxy-THC] three weeks later, but there isn’t any evidence that you could be under the influence of it.” The prosecutor responded that it was a question for the jury, but, “hopefully, our office wouldn’t even charge such a case.” But the reality is that under the majority’s interpretation of the statute, a prosecutor could charge in that case and many others bеcause of the majority’s improper interpretation of the statute, leaving Michigan citizens unsure of what conduct will be deemed criminal.
Third, and finally, the majority’s interpretation of the statute is unconstitutional because it is not rationally related to the objective of the statute. See Harvey v Michigan,
Simply put, the statute at issue seeks to prevent a person from operating a vehicle while under the influence of drugs. But 11-carboxy-THC has no pharmacological effect on a person, and therefore cannot affect a person’s driving. While 11-carboxy-THC does indicate that a person had THC in his system at some point in the past, there is no indication of when the THC was in the person’s system. Dr. Glinn admitted that the levels of 11-carboxy-THC do not indicate whether the effects of the parent drug — marijuana—are still present. She stated, “You can’t correlate the levels with the effects very well.” Further, no expert testified that a person who had ingested marijuana days and weeks ago would still be impaired. To the contrary, Dr. Glinn testified that the effects may be seen “up to 24 hours ....”
Plainly, there is no rational reason to charge a person who passively inhaled marijuana smoke at a rock concert a month ago and who now decides to drive to work. There is no rational reason to charge a person who inhaled marijuana two weeks ago and who now decides to drive to the store to pick up a gallon of milk. While I certainly agree with the Legislature’s position that a person should be punished for driving while under the influence of a controlled substance because of the potential for tragic outcomes, the majority’s interpretation of the statute is arbitrary and wholly unrelated in a rational way to the objective of the statute. To say that driving while a person’s system contains any amount of a substance that has no pharmacological effect is a crime — given that under the most conservative estimates offered by the prosecution, the current scientific testing can find evidence of the substance for at least four weeks — is not permissible under the Constitution. It is this Court’s role to construe statutes to avoid a danger of unconstitutionality, see Harriss, supra at 618, yet today the majority has ignored this longstanding principle. A reasonable construction of the statutory language is possible — for example, finding that 11-carboxy-THC may be used as circumstantial evidence of a statutory violation — yet the majority has chosen a positiоn that is contrary to the Constitution and the rights of our citizens.
CONCLUSION
Because the majority interprets the statutory provisions at issue contrary to the express wording chosen by the Legislature, as well as contrary to the intent of the Legislature, I must respectfully dissent. Today’s holding now makes criminals of numerous Michigan citizens who, before today, were considered law-abiding, productive members of our communities. Now, if a person has ever actively or passively ingested marijuana and drives, he drives not knowing if he is breaking the law, because if any amount of 11-carboxy-THC can be detected — no matter when it was previously ingested — he is committing a crime. The majority’s interpretation, which has no rational relationship to the Legislature’s genuine concerns about operating a vehicle while impaired, violates the United States Constitution and the Michigan Constitution. Therefore, I would affirm the decision of the Court of Appeals.
The federal statute states:
The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. [21 USC 802(16).]
The majority consulted medical dictionaries. A further review of various chemical dictionaries indicates exactly what the majority has stated — there are widely divergent definitions of “derivative” and “metabolite,” such that a definition alone cannot resolve this issue. See, e.g., Grant & Hackh’s Chemical Dictionary (5th ed); Glossary of Chemical Terms (2d ed); Hawley’s Condensed Chemical Dictionary (12th ed).
I note that the majority attempts to create an inconsistency in my position when none actually exists. Ante at 328-329 n 7. The majority references a prior case that I wrote—Stanton v Battle Creek,
The Fifth Amendment of the United States Constitution provides in relevant part:
No person shall... be deprived of life, liberty, or property, without due process of law .... [US Const, Am V]
The Michigan Constitution provides in relevant part:
No person shall be .. . deprived of life, liberty or property, without due process of law. [Const 1963, art 1, § 17.]
I note that the majority does not refer to this rule of law, instead only stating that a statute will not be struck down as vague even though doubtful cases can he imagined. See ante at 337. The majority’s choice to ignore its mandate to reasonably construe a statute to ensure that it is constitutional is central for it to reach its decision today.
For example, cutoff standards have been reported at 100, 50, 20, and 5 nanograms. Huestis, Cannabis (marijuana) — Effects on human behavior and performance, 14 Forensic Sci Rev 15, 26-27 (2002).
The prosecutor in the Kurts case argued to the contrary at oral argument and cited an article that he stated supported his position. While this article was never admitted into the record, a review of the article indicates that it does not stand for the blanket proposition that the prosecutor argued.
Unlike the prosecutor in the Kurts case, the prosecutor in the Derror case noted that a charge was a very real possibility, as indicated by the following exchange during a hearing. The trial court stated to the prosecutor, “[I]t seems like what you are saying now is that it’s your position that we could assume hypothetically that the consumption of this marijuana had absolutely no effect, whatsoever, on this lady’s driving, but the penalty should still be enhanced from two to 15 years.” The prosecutor replied, “That is the position of the People, Your Honor ....”