*1
Mich 316
475
PEOPLE v DERROR
PEOPLE v KURTS
(Calendar
3).
129269,
10,
Argued January
Docket
Nos.
129364.
No.
Decided June
2006.
charged
Delores M. Derror was
in the Grand Traverse Circuit Court
operating
with
a motor vehicle while under the influence of
(a
substance)
marijuana
causing
1 controlled
schedule
and with
resulting
impairment
motor vehicle accident
in death and serious
body
driving
marijuana,
of
function while
under the influence of
(THC).
psychoactive ingredient
tetrahydrocannabinol
whose
court,
J.,
Philip Rogers,
E.
determined that the substance in
blood, ll-carboxy-THC,
her
is not a schedule 1 controlled sub-
stance,
jury
determined that a
could find
in
from that substance
body
accident,
her blood that she had THC in her
at the time of the
required
prosecution
presence
and
to establish at trial that the
proximate
of THC in Derror’s blood
awas
cause of the accident for
purposes
charges
causing
a motor vehicle accident
resulting
impairment
in death or serious
function. The
prosecution appealed
Appeals by
granted.
in the Court of
leave
charged
Dennis W. Kurts was
in the Jackson Circuit Court with
operating
marijuana.
a motor vehicle while under the influence of
court,
Schmucker, J.,
charge, ruling
Chad C.
dismissed the
jury
that there was insufficient evidence for a
find
that Kurts
operating
was
a motor vehicle while under the influence of
marijuana
presence
ll-carboxy-THC
on the basis of the
in his
prosecution appealed
Appeals by
blood. The
the Court
leave
granted.
Appeals,
The Court of
and Jansen Cooper, PJ.,
Hoekstra,
and,
appeals
reconsideration,
consolidated the
on
affirmed in
JJ.,
part,
part,
proceedings
reversed
and remanded for further
regard
aрpeal.
App
to each
268 Mich
The Court affirmed
rulings
ll-carboxy-THC
the trial courts’
not a
schedule
Kurts,
controlled substance. In
the Court also reversed the trial
charge
257.625(8),
court’s dismissal of the
under MCL
prohibits
operation
of a motor vehicle with
amount of a
that,
body, concluding
controlled substance in the
although only ll-carboxy-THC was found in the defendant’s
People v Derror
blood,
jury
could conclude that the
evidence existed from which
driving,
time that he
defendant had THC
his blood at the
that he had smoked
before he was
because Kurts admitted
expert testimony
presence
revealed that
of 11-
arrested
body conclusively
prior inges-
carboxy-THC
person’s
in a
establishes
*2
Derror,
prosecution
tion of THC. In
the Court also held that the
need
intoxication,
only
driving,
prove
the
that the defendant’s
not her
accident,
proximate
prosecution
cause of the
but also held that the
prove
might
must
that the defendant knew that she
be intoxicated.
sought
prosecution
appeal
in both cases
leave to
the determina-
11-carboxy-THC is
a
1
tions that
not
schedule
controlled substance.
Derror,
prosecution
sought
appeal
In
also
leave to
the Court of
that,
Appeals
prosecution involving
in
determination
a
MCL
257.625(8), prosecutor
prove
a
must
that the defendant knew that he
might
Supreme
granted
or she
be intoxicated. The
Court
both
applications
together.
and ordered that the cases be submitted
(2005);
Mich
vehicle with
amount of a schedule 1 controlled substance in
body.
(5),
provide
6. MCL
and
for an enhanced
causing
impairment
sentence for
death оr serious
of a
operating
having any
function while
a motor vehicle while
amount
(8)
body,
of a schedule 1 controlled
substance
do not
require proof
knowledge
aof defendant’s
of his or her intoxication.
prosecutions involving
257.625(8),
In7.
of MCL
violations
prosecution
required
beyond
prove
is not
a reasonable doubt
might
that a defendant knew that he or she
be intoxicated. The
opinion
People Schaefer,
(2005),
Health Code for Vehicle Code prohibits operation by person of a motor vehicle with v Derror Opinion of the Court in his or her any substance of a schedule controlled amount 333.7212[l][c]). (MCL257.625[8], — 2. Criminal — Substances. Schedule 1 Controlled Law Automobiles Michigan Code prosecution, under the Vehicle in an action by a prohibits operation of a motor vehicle provision in his any substance person amount of a schedule controlled with driving, only prove not his body, that the defendant’s need or her (MCL intoxication, proximate of the accident cause or her 257.625[8]). 1 Controlled — — — 3. Substances Automobiles Schedule Criminal Law Intoxication. Michigan Vehicle Code prosecution, an action under the by a prohibits operation a motor vehicle provision in his a schedule 1 controlled substance amount of beyond body, prove doubt that the a reasonable or her need might by a controlled he or she be intoxicated defendant knew that (MCL257.625[8]). substance L. General, Casey, Thomas Cox, Attorney A. Michael Attor- Schneider, Prosecuting General, Alan Solicitor Counsel, for Deputy A. Civil ney, Cooney, and Robert in Derror. prosecution General, Casey, L. Cox, Attorney Thomas
Michael A. Zavislak, Prosecuting At- General, C. Henry Solicitor Schrotenboer, Attor- Appellate Chief torney, scadJerr old in Kurts. ney, prosecution for the A. (by Pagac) Defender Christine State Appellate Derror. Delores M. Kurts. M. for Dennis W
Jerry Engle CORRIGAN, are appeals, consolidated we J. In these 11-carboxy-THC, to determine whether called upon of metabolism created when or byproduct “metabolite” *4 (tetrahydrocannabinol), THC breaks down 1 a marijuana, schedule ingredient psychoactive the Public MCL 333.7212 of under controlled substance Mich 316 475 Opinion Court Thus, it is. person operat- Health Code. We hold that a ing a vehicle in his or her motor with may system prosecuted 257.625(8), be under MCL of a operation motor vehicle with prohibits a any amount of schedule controlled substance body.
Additionally, 129269, No. clarify Docket we our 418; decision in 473 Mich People Schaefer, NW2d (2005), that, and hold in a prosecution under MCL 257.625(8), a prosecutor is not required prove beyond doubt that reasonable the defendant knew he or Rather, might she intoxicated. need prosecutor only prove that the defendant had any amount body. schedule controlled substance in his her Accordingly, we judgment reverse the of the Court of remand Appeals and both cases to the trial courts for proceedings further with opinion. consistent
I. FACTUAL BACKGROUND In Docket No. defendant M. Derror Delores driving east on snow- and slush-covered M-72 when oncoming she into crossed traffic and collided with vehicle, another killing the front-seat passenger, para- seat, children lyzing injuring two in the rear a third child. The accident at 6:00 approximately p.m. occurred Derror had marijuana, admitted that she smoked at day. 2:00 earlier that p.m., samples Two blood were taken, at approximately p.m. one 8:00 and one at approximately 11:00 The first p.m. sample blood re- nanograms milliliter, fleсted 38 of 11-carboxy-THC per and the second 31 nanograms 11-carboxy- contained per charged THC milliliter. Derror was operating motor vehicle with the of a presence con- body, causing trolled substance in her death and serious *5 Derror Opinion of the Court (8). Derror was 257.625(4), (5), and MCL injury, under MCL marijuana, of possession charged with also 333.7403(2)(d). was Dennis Kurts 129364, defendant
In Docket No. errati- driving for p.m. 9:00 approximately at stopped Kurts. alcohol on the odor of smelled cally. The officer Kurts admitted eyes. had bloodshot glassy, Kurts also search, the pat-down a During consuming two beers. Kurts pocket. in Kurts’ marijuana pipe a found officer a half- he had smoked admitted that then at approxi- taken sample was earlier. A blood hour con- that his blood revealed p.m. 10:00 Tests mately 11-carboxy-THC per eight nanograms tained milliliters. per of alcohol grams milliliter and 0.07 a motor vehicle while charged operating with Kurts was 257.625(9); offense, operating MCL intoxicated, third 1 con- of a schedule presence motor vehicle with 257.625(8); and MCL body, in the trolled substance license, or revoked suspended operating vehicle 257.904(3)(a). held in cases hearings were both evidentiary Pretrial the characteristics testimony regarding expert in which intro- THC, marijuana, expert Appeals The Court of summarized duced. testimony as follows: “metabolite,” carboxy THC a experts agreed that The metabolism, body in the human created byproduct converting mari- body’s biological
during
process
excreted more
form that can be
juana into a water-soluble
conclusively
that a
proves
easily.
in the blood
presence
Its
However,
point
in time.
ingested THC at some
effect on the
pharmacological
no
carboxy THC itself has
all, to
poorly, if at
in the blood correlates
and its level
fact,
In
impairment.
of THC-related
an individual’s level
long
all THC
after
carboxy
remain in the blood
THC could
and enters
the blood
gone,
quickly
THC
leaves
has
basically, persist quite you that a while. And can beyond document defects in lab of studies THC the time longer when it’s no in detectible the blood.
In discussing the structural differences between THC and 11-carboxy-THC, Dr. Glinn explained, also dispute, without that THC and 11-carboxy-THC are except identical that in 11-carboxy-THC, two oxygen to, added atoms are and three hydrogen atoms are from, removed the eleventh carbon make to it more water soluble and easier to excrete.
Following the evidentiary hearings, the trial courts in both Legislature cases determined that the did not intend 11-carboxy-THC to include as a schedule 1 controlled substance because it has no pharmacological effect courts, on the human The body. however, trial divergent reached regarding results the effect of this Kurts, In conclusion. trial granted the court Kurts’s motion charge to dismiss the of operating a motor vehicle while under the influence of a schedule 1 257.625(8) controlled substance in of violation MCL on grounds the of Derror, insufficient evidence. In how- ever, that, the trial court ruled although 11-carboxy- THC itself is not a schedule 1 substance, controlled evidence 11-carboxy-THC of Derror’s blood at the testing may time of be presented jury the as circum- v Derror Opinion the Court of THC in Derror had to establish evidence stantial driving. of at the time her blood of to the Court appealed in both cases prosecutors and affirmed appeals consolidated Appeals, is not a schedule 11-carboxy-THC rulings that trial courts’ Kurts, Appeals the Court of In 1 controlled substance.1 the MCL court’s dismissal the trial also reversed 11- although only concluding that charge, blood, evidence in Kurts’s was found carboxy-THC Kurts had conclude that jury could from which existed driving.2 The that he was at the time THC in his blood Kurts conclusion because reached this Appeals Court one half-hour he had smoked admitted that testi- arrested, expert and because he was before presence mony revealed ingestion conclusively prior establishes person’s of THC. for leave to applied cases both prosecutors 11- determination Appeals Court of
appeal substance not a schedule controlled carboxy-THC is 257.625(8). Docket No. In meaning of MCL within sought appeal leave 129269, the also prosecutor that, prosecution in a Appeals determination Court 257.625(8), prove must prosecutor involving MCL intoxicated. might he or she defendant knew *7 that the that the cases and ordered applications both granted We together.3 submitted be
II.
OF REVIEW
STANDARD
1
controlled
is
schedule
Whether
the Public Health
under MCL 333.7212
substance
1
(On
67;
Reconsideration),
App
706 NW2d
People
268 Mich
v Derror
(2005).
2 Id.
(2005).
(2005);
Mich 887
Whether, in a prosecution involving 257.625(8), MCL the prosecutor prove beyond must a reasonable doubt the defendant might that he or knew she intoxicated is also a question law that we review de Schaefer, novo. supra at 427. III. ll-CARBOXY-THC IS A SCHEDULE 1 333.7212(l)(d)
CONTROLLED SUBSTANCE UNDER MCL 257.625(8), MCL both Kurts and Derror were charged violating, prohibits the operation of a vehicle while a controlled substance present body. provides, It part: relevant person
A operate ... shall not a vehicle ... within this state if the has in his or her amount of a controlled substance listed schedule 1 under section code, public 7212 of the health 1978 PA MCL 333.7212, or a promulgated rule under that .... section 333.7212(l)(c) specifically lists as a substance, controlled for certain except exceptions not applicable to these cases. “marijuana”
The term is defined in MCL as follows: parts plant “Marihuana” means all [sic] Canabis L., not; growing
sativa thereof; seeds the resin *8 Derror Opinion Court of the every compound, and plant; part from extracted derivative, mixture, of manufacture, salt, preparation or or its or resin. plant seeds MCL listing marijuana, to specifically In addition 333.7212(l)(d) (e) following sub- that the provide and substances: controlled qualify also as schedule stances (d) (2), synthetic Except in subsection provided as or in plant, contained in the of the substanсes equivalents synthetic sub- extractives of cannabis and the resinous stances, derivatives, chemi- and their isomers with similar both, activity, pharmacological or such or cal structure 1: following, are in schedule included (i) tetrahydrocannabinol, op and their cis or trans A1 tical isomers.
(ii) tetrahydrocannabinol, their cis or trans A6 optical isomers. A3,4
(iii) tetrahydrocannabinol, their cis trans optical isomers.
(e) into Compounds of of substances referred structures (d), designation of regardless of numerical subdivision positions, atomic are included. held that Appeals
The Court MCL substance under not a schedule controlled 333.7212(l)(c) not in the expressly because it is listed con- however, The Court failed to Appeals, statute. of the Public Health Code provisions sider other conclusion; reaching specifically, provision its 333.7212(l)(c) marijuana. does defines While 1 con- 11-carboxy-THC as list specifically substance, marijuana. it does list As stated trolled above, Code the Public Health includes within marijuana every compound and derivative definition resin. or its seeds or plant in the the main substance found psychoactive THC is of THC is a metabolite plant. 11-carboxy-THC cannabis 475 Mich Opinion op the Court it when produced metabolizes THC. See Stedman’s Online Dictionary, Medical de- *9 (food- fines “metabolite” or “[a]ny product as substrate stuff, intermediate, metabolism, waste of product) es- of pecially catabolism.”4 The question presented before 11-carboxy-THC us is is whether also a derivative of THC. hold that term encompasses
We “derivative” metabolites. We construe “all and phrases... words according the common approved usage and but language,” give terms of and art “technical words and phrases” any “peculiar appropriate and meaning” by Legislature acquired ascribed in common usage in the of legislative absence 8.3a; definition. MCL In Schaefer, supra case, at 435. of context this term term, “derivative” ais scientific only by definable reference to scientific dictionaries.
Medical dictionaries have defined the term “deriva- tive” a variety ways. of Stedman’s Online Medical Dictionary defines a as “[sjomething pro- “derivative” by duced of something modification preexisting,” or “[sjpecifically, a may chemical that compound pro- duced from compound another of similar structure in steps, one or more as in replacement alkyl, of H an acyl, group.”5 or amino Under first of part this definition, 11-carboxy-THC qualifies as a derivative it produced because is body when the breaks down or naturally THC. 11-carboxy-THC modifies qualifies also as a derivative part under second of this definition it because chemical compound produced when the THC, metabolizes compound similar (accessed 2006). <http://www.stedmans.com/section.cftn/45> 8, March (accessed 2006). <http://www.stedmans.com/section.cftn/45> March Derror
Opinion of the Court 11-carboxy- THC and It is that undisputed structure. two 11-carboxy-THC, identical except THC are atoms hydrogen three are added to and atoms oxygen make it more carbon to removed from the eleventh are excrete. and easier to soluble water de- Dictionary Medical Online Merriam-Webster’s “something is obtained fines a “derivative” more of, from an earlier or from, out or results grows sub- condition,” or “a chemical state or fundamental to another substance structurally related stance it,” from or “a substanсe theoretically derivable from substance.”6 The first be made another can the one are as broad as parts third definition include Stedman’s and would from THC; it from the produced it is from results because parts of THC. The second the three metabolization *10 it in that definition, however, is more limited structurally chemical “a related only includes substance substance____” fits 11-carboxy-THC also to another above, has an because, as stated it this definition within for the except chemical to THC identical structure eleventh carbon atom. agree 11-carboxy-THC potentially that
Defendants definitions, a the but as derivative under above qualifies broadly defining the term “derivative” contend Code would nonsensi- produce the Public Health under chemi- every include almost cal results because it would a substance, dioxide, is also including carbon which cal that most of the above agree metabolite of THC. We metabo- encompass of “derivative” would definitions of the above as carbon dioxide. Not all lites such definitions, however, do so. The second part describes Dictionary Medical Merriam-Webster’s Online 6 (accessed <http://www2.merriam-webster.com/cgi-bin/mwmednlm> 2006). 8, March
328
tort act an answer which definition *11 previously noted, principle should selected. As is a it basic of our jurisprudence immunity upon govern- state’s that the conferred agencies broadly mental and subdivisions is to be construed statutory exceptions narrowly Thus, that the are to be construed. apply this Court must a narrow definition to the term undefined (citation omitted).] [Stanton, supra vehicle.” “motor at 617-618 v Dеrror Opinion the Court Dictionary. As Medical Online the Merriam-Webster’s 11-carboxy-THC includes above, this definition stated structurally it related is of THC because as a derivative metabo to include other as THC, is not so broad but Moreover, this definition dioxide. lites such as carbon Health Code of the Public purpose consistent with people and welfare of health, safety, the .8 protect this state held, and the dissent further Appeals
The Court not a schedule 11-carboxy-THC was agrees, pharmacological it has no controlled substance because the Court of Contrary to body. the human effect on contention, neither holding and dissent’s Appeals 257.625(8) that a requires MCL 333.7212 nor to consti properties pharmacological have substance does MCL Nor 1 controlled substance. tute a schedule while impaired a defendant be require of a motor for the Rather, operation it driving. punishes appro- most choosing of the term “derivative” is definition In which beliefs,” suggested here, “personal as priate our own we do not use Rather, plain language to divine the of the statute we use the dissent. Legislature’s intent. 11-carboxy-THC is a contends that we conclude that The dissent in structure. substances look similar derivative of THC because both by relying on an area reach our conclusion It further contends that we relying agree experts instead of on the do not even of science which contrary, language conclude that plain the statute. To the we it is related structur a derivative of THC because ally Online from THC. See Merriam-Webster’s to THC and is derivable reaching rely expert testimony Dictionary. our do not on Medical Wе language Rather, rely plain of the statutes in on the conclusion. we 333.7212(l)(c), Specifically, rely which lists question. on MCL we 333.7106(3), substance, and MCL as a 1 controlled Also, plant. “marijuana” including derivatives of defines experts agree although do not contrary suggestion, to the dissent’s 11-carboxy- dispute case, experts do not all issues in this on 11-carboxy- nearly and that identical in structure THC and THC are of THC. THC is derived from the breakdown *12 Mich 316
330 475 Opinion of the Court of a vehicle with amount schedule controlled Legislature the body.9 expressly substance in The listed marijuana as a schedule 1 controlled substance. Legislature expressly included the term “derivative” “marijuana.” definition not place within the of It is our Legislature’s to intent the lan second-guess when guage plain in the statute unambiguous.10 is Koonce, Legislature at 518. The supra undoubtedly has does, to, and often power activity criminalize that is concluding The dissent relies on MCL in 333.7211 schedule 1 pharmacological controlled substances must have a effect on the human body. It states: place a The administrator shall substance in 1 if it schedule high potential
finds that the substance has for and has abuse no accepted medical use in treatment the United or States lacks safety accepted supervision. for use in treatment under medical [MCL 333.7211.] statute, however, regard pharmacological This is with silent to the Rather, placement effects of a substance. it mandates the of a substance high potential 1 the schedule if substance has a It abuse. does not prohibit any event, of the inclusion other substances in 1. In schedule we expressly note that has been listed as a schedule 1 controlled 11-carboxy-THC substance. is Because included the definition within “marijuana” derivative, aas it too constitutes controlled substance. Michigan’s contends dissent that our construction of definition “marijuana” including 11-carboxy-THC contrary and inconsis years tent with of federal first law. We note that no federal court has specifically 11-carboxy-THC “marijuana.” excluded from the definition
Moreover,
points
the dissent itself
out that the federal courts that have
by interpreting
dealt with similar issues
their
have reached
conclusions
legislative history,
plain language
analogous
rather than the
precedent
interpreting
federal statute. We are not
federal
bound
law,
Muskegon
Corp
Twp,
191, 194;
state
Continental Motors
365 Mich
(1961),
adopt
precedents
IV
OF HIS OR HER INTOXICATION
DEFENDANT’S KNOWLEDGE
charged
defendant Derror was
In Docket No.
(5),
and
in addition
violating both MCL
with
4 and 5
for an
provide
8. Subsections
subsection
causing
impair-
for
death or serious
enhanced sentence
health, safety,
“liberally
protection
the
and welfare of
construed for the
333.1111(2).
by
employed
people state.” MCL
The definition
majority
meets both directives.
257.624a,
Legislature
See,
example,
has made
in which the
transport
illegal
passenger
or
or
of a motor vehicle to
it
for a driver
container,
open
regardless
possess
liquor
of whether
alcoholic
in an
actually
beverage.
persons in the car
drink the alcoholic
Opinion of the Court ment of body a function while a motor operating vehicle any schedule controlled in the body. substance states, MCL 257.625 part: relevant (4) not, A person, operates whether licensed who or a (8) (1), (3), motor vehicle in violation of subsection or by operation of that motor vehicle causes the death of guilty person another of a crime ....
(5) not, person, A operates whether licensed who or a (8) (1), (3), motor vehicle in violation of subsection or operation of that motor vehicle causes serious impairment person of a function guilty of another felony....
(8) person, not, A licensed operate whether or shall not body any vehicle... if the has in his her amount of a controlled substance listed schedule 1 under public section 7212 of the health code ....
In interpreting above provisions, the trial court held that the prosecutor had to prove Derror’s intoxication proximate was a cause of accident. The Court of Appeals originally affirmed this holding, rely- *14 ing Lardie, on People 231, 256; v 452 Mich 551 NW2d (1996), in which this held Court that MCL 257.625(4) “requires the people prove to that a defen- dant, who kills someone while driving intoxicated, acted knowingly in consuming intoxicating an liquor or substance, controlled and voluntarily acted in decid- ing to drive such after Id. consumption.” at 256. The Lardie Court further noted that “the statute must have been designed punish to drivers their when drunken driving caused another’s death.” Id. at 257 (emphasis in original).
We, however, subsequently
portions
overruled
Lardie
in
companion
case
People
cases of
v Schaefer
People
Derror
v
Opinionof the Court
418;
establish
reasonable
in violation of MCL
operating
was
his or her motor vehicle
(2)
257.625(1), (3),
(8);
voluntarily
the defendant
decided
or
drive,
intoxi-
knowing that he or she had consumed an
(3)
intoxicated;
agent
might
and
the defen-
cating
operation of the motor vehicle caused the victim’s
dant’s
257.625(4).]
434, citing
[Id.
death.
at
MCL
in the
granted
reconsideration
Appeals
Court
and held
light
Schaefer,
Derror
of our decision in
case
that Derror’s
prosecution
only prove
need
intoxication,
proximate
her
cause
driving, not
held that
Appeals
of the accident.12The Court of
further
257.625(4)
(5),
al-
applied to both
Schaefer
analyzed
only.13
subsection
though Schaefer
agree
Appeals application
Court
We
prosecution
that the
need
this case
hold
Schaefer
intoxication,
driving,
that Derror’s
not her
only prove
cause of the accident. MCL
proximate
was the
intoxication
require
does
have
requires
impairment
simply
—it
App Mich
82.
13 Id. at 81.
*15
V RESPONSE TO THE DISSENT
The dissent claims that the majority’s interpretation
(1)
of MCL
is unconstitutional
because it:
Derror
Opinion of the Court
*16
conduct is prohibited,
what
notice about
provide
fails
(2)
arbitrary and
vague
provides potential
(3)
rationally
enforcement, and
is not
discriminatory
objective of the statute.
related to the
by defen-
issue raised
First,
only
the
constitutional
the “ex-
Questions
of
dant in his Statement
rendered the
“marijuana”
definition of
pansion”
unconstitutionally vague and overbroad. Nei-
statute
the
and third constitutional
ther
raised
first
party
in-
justices
the
That
the
posed by
dissent.
concerns
Legislature’s
the
argument
regarding
at oral
quired
preserve
does not
question
to enact the statute
power
In
suggests.
the dissent
these constitutional
issues as
Detroit,
Mich
649 NW2d
his dissent Mack v
186;
the
(2002),
strongly criticized
Justice CAVANAGH
or
raising
argued
of
issues that have never been
practice
by the
He stated:
properly
parties.
briefed
majority disregards
reaching
holding,
In
its
the
the
system adju-
principles
foundational
of our adversarial
deciding
justice,
refrain from
protectors
dication. As
we
giving
party
opportunity
a full and fair
issues without
each
concern,
judicially
be heard. But not for this
created
discarded,
standing
as it ensures
doctrine of
would
sharpens
presentation
“concrete adverseness which
upon
largely depends for illumi-
issues
which the court so
However,
majority
disregarded
has
such
nation ....”
considerations,
scope
au-
misconstruing
proper
of its
argued
thority, by making dispositive an issue never
parties
parties.
Neither of the
has had
briefed
thoughts
sharing
Court their
on the
benefit of
with this
case, though
immunity
of the tort
act on this
effect
majority’s holding
implications of the
are vast. Never
overreaching
I
conduct from
have witnessed such
before
(CAVANAGH, J.,
[Id.
Court.
at 213
dissent-
members
(citation omitted).]
ing)
con-
Nevertheless,
unpreserved
will address these
we
that our
First,
the dissent claims
issues.
stitutional
The dissent next argues that our interpretation of the statute is unconstitutionally vague because it pro- the potential vides for arbitrary and discriminatory enforcement. Specifically, it claims that our interpreta- tion of the statute makes criminals of persons who have merely inhaled marijuana or people who are no longer under the influence of marijuana.
As previously stated, MCL does not re- quire that a person be under the influence of a schedule 1 controlled substance to violate the statute. It merely requires that a person have any amount of a schedule 1 Derror v Opinion of the Court body. in the It is irrel- person’s controlled substance no “under longer evant that a who is prosecuted influence” of could be under Legislature pros- If the had intended to the statute. were under the influence while only people ecute who accord- driving, it could have written statute ingly.14
Moreover, general if the class of offenses to which the terms, plainly statute is directed is within its vague, though not be struck down as even statute will hypothesized. could be See United States doubtful cases 1538; L Petrillo, 5-8; 332 US S Ct 91 Ed 1877 Petrillo, Supreme In the United States Court stated: safeguards procedural The Constitution has erected viоlation, against except for
protect conviction crime clearly defined conduct thereafter to be laws which have require impossible punished; but the Constitution does not conveys language challenged here standards. suffi- ciently warning proscribed definite as to the conduct when practices. understanding measured common requires [Id. 7-8.] Constitution no more. at case, In mari- smoking both defendants admitted juana just driving. question hours before No exists that Moreover, their conduct. proscribes statute sufficiently conveyed operating statute a vehicle smoking marijuana illegal. hypotheti- after Because might could posed cal case where doubts arise does *18 unconstitutionally vague. not render the statute statute, defendants, applied to these is constitu- tional. 14 Legislature requirement has included an “under the influence” Thus, 1 if
in other sections of MCL 257.625. See subsections to 3. requirement Legislature also intended to include the same had 8, so. subsection it would have done
338 Mich 316 475 op
Opinion the Court Finally, plain language the dissent contends our interpretation pass of the statute does not muster Initially, under rational basis test. we agree rational basis review is because the statute appropriate legislation15 is social enacted under the tradi- state’s police power regulate safety, tional to public public health, morality, Further, and and order.16 law under review, highly deferential standard of the legisla- tion upheld challenger must be unless the can show “ ‘ it is “arbitrary, wholly unrelated in a ’ ”17 way objective rational to the of the statute.” We reject the dissent’s assertion that the statute is not rationally related to objeсtive. its
The dissent claims that the objective statute’s is to prevent from people driving under the of a influence controlled substance. Not so. The statute’s stated ob- jective is to prevent persons from driving amount of a 1 controlled body, substance whether not the substance still influencing them. clearly legitimate This is exercise Legislature’s of the police power only since is indisputably present after someone ingested has mari- juana, i.e., done something illegal.
Nevertheless, assuming that the
objective
statute’s
prevent persons
from driving under the influence of
marijuana,
the statute passes constitutional muster.
15
Mirac, Inc,
(2004).
415,
Phillips
434;
See
v
470 Mich
Such a conceivable set of facts exists undisputed presence 11-carboxy- case. It is that the conclusively proves person, THC that a at point, some THC, an ingested ingredient marijuana which is which does have a effect on the It pharmacological body. is also that THC itself undisputed begins break down shortly entering and leave the bloodstream after body, long but that its effects can last after it is no longer detectible in the blood. It is thus conceivable Legislature enacted this statute to further objective persons from under the preventing driving marijuana by enabling influence of prosecution might THC, who be under the influence persons but only 11-carboxy-THC, traces of and not whom THC itself, in the present body. are still 464; Mich Muskegon Muskegon, Area Ass’n Rental (2001); Harvey, supra at 7. NW2d Mich 316 Opinion op the Court test,
Moreover, we do not under the rational basis choice, Legislature’s consider wisdom mathematical whether that choice was made with nicety, narrowly or whether it is most drawn to obtain it objective, may inequitable put its or whether when short, into In we do not consider the effects of practice.19 *20 only the statute or its its As consequences, purpose.20 long Legislature’s objective legitimate, as the objective means that it chooses to obtain that is not merely may rendered unconstitutional because it overinclusive. Beazer, 568;
In York City New Transit Auth v 440 US 1355; (1979), 99 S Ct 59 L Ed 2d United Stаtes Supreme Court a statute the rational upheld applying challenge basis standard. Beazer case involved a to York City Authority’s New refusal to em- Transit methadone, a ploy persons drug who used used to cure addiction, general safety-oriented heroin under a policy against employing persons who use narcotic Id. drugs. at The plaintiffs, participants 570-573. in state- regulated methadone treatment had programs who employment been denied authority, with transit challenged the blanket Spe- exclusion as overinclusive. cifically, they exclusion, asserted that at least as applied them, did not further the policy’s goal of safety because methadone administered in such treat- ment programs produce does not an effec- euphoria, is addiction, majority tive cure heroin and frees the persons programs drug involved such from illicit use. Id. at 573-577. Rental, Phillips, supra 434; Muskegon 464; supra Harvey, at Area at
supra at 7. supra 435, Phillips, quoting at Duke Power Co v Environ Carolina Study 59, 83-84; 2620; Group, mental 438 US Ct L Ed 98 S 2d 595 v Derror Opinion of the Court rejected the plaintiffs’ challenge. Court After concluding that authority’s transit blanket exclu- probably necessary sion was broader than to achieve its goal ensuring safety, id. at the Court stated that “it is of no constitutional significance degree that the rationality is not as ill- great respect certain subparts defined of the classification as it is with respect to the classification Id. as whole.” at 593. The same is true goal legislation legiti- here. The of the mate. That the Legislature could have conceivably enacted a perfectly more precise statute does not render the current statute constitutionally invalid.21
VI. CONCLUSION We hold that 11-carboxy-THC is a schedule con- 333.7212(l)(c) trolled substance under MCL of the Public Health Code for the purpose construing Michigan of the Accordingly, Vehicle Code. the judgment we reverse Appeals regard- Court of ing issue, and remand both to the cases trial courts *21 for further proceedings consistent with this opinion. We do not jurisdiction. retain We reaffirm our in holding pros- the Schaefer
ecution need only prove that a driving, defendant’s intoxication, his or her proximate was a cause of the Further, accident. holding applies to both Schaefer’s MCL and Accordingly, we affirm the judgment of the Court of Appeals regarding this issue in Docket No. 129269. 21 Contrary contention, “ignor[ing] to the [our] dissent’s we are not reasonably
mandate to construe a statute to ensure that it is constitu statute, tional ....” Post at 355 n 5. Our construction of the which is plain language statute, consistent with the does not render the Thus, statute unconstitutional. we need not construe the statute differ ently. 475 Mich
Dissenting by Opinion Cavanagh, J. that, in modify prosecution to hold We also Schaefer 257.625(8), the need not involving prosecutor doubt that the defendant prove beyond reasonable he intoxicated. might knew or she be Taylor, C.J., JJ., Markman, and YOUNG and concurred J. Corrigan, Today, majority J. the holds (dissenting). CAVANAGH, 11-carboxy-tetrahydrocannabinol (11-carboxy- THC) is a schedule controlled substance and that a if person any violates the law he drives with amount of 11-carboxy-THC body. his The full of this import can understood that the only by recognizing decision majority’s interpretation person means that a can no a car if longer legally testing drive scientific can detect system. amount of аny his This weeks, months, years means that and even after mari- juana long after ingested, impair- risk passed, ment has cannot drive a car without the if a can breaking presence law test detect the 11-carboxy-THC. Because I believe that this interpreta- disregards statutory language tion chosen Legislature and in an interpretation results that vio- Michigan lates United States Constitution and the Constitution, I respectfully dissent. 11-CARBOXY-THC IS NOT A SCHEDULE 1 CONTROLLED BECAUSE IT IS A
SUBSTANCE NOT DERIVATIVE OF MARIJUANA This case an statutory interpreta- involves issue of tion, primary goal statutory interpretation and the is effect to the intent of give Legislature. The first is to If the step language review the statute. statutory language unambiguous, Legislature presumed meaning to have intended the expressed statute, judicial permissible. construction is not *22 People v Derror 343 Dissenting Opinion Cavanagh, J. Telecom, 396, 411; In re MCI 460 Mich Complaint, (1999). However, ambigu- when a statute is NW2d ous, respect “so that reasonable minds could differ with meaning, judicial appropriate to its construction is meaning.” determine the Id. part:
MCL states relevant not, person, operate A or whether licensed shall not upon highway place open general or other vehicle to the vehicles, public generally including or accessible to motor vehicles, designated parking an area for the within this if any state has his or her amount aof controlled substance listed in schedule under section 7212 code, 333.7212, public PA health MCL or a of rule promulgated [Emphasis under that section.... added.]
Marijuana itself is controlled substance. 333.7212(l)(c). “Marijuana” is defined as follows: parts plant [sic]
“Marihuana” means all of the Canabis L., not; thereof; growing sativa or seeds resin any every part рlant; compound, extracted from manufacture, salt, derivative, mixture, preparation or plant or its seeds or resin. It does not include the stalks, plant, produced mature stalks fiber from the oil or cake plant, made from seeds of the other manufacture, salt, derivative, mixture, compound prepa- stalks, except ration of the mature the resin extracted therefrom, fiber, cake, oil or or the sterilized seed of the plant incapable germination. [MCL 333.7106(3).] 333.7212(l)(d)
Further, MCL that the states follow- ing are also schedule controlled substances: (2), synthetic Except provided equiva- subsection plant, lents of the substances contained in the or in the synthetic substances, resinous of cannabis and extractives derivatives, and their isomers with similar chemical struc- *23 475 Mich 316 by Dissenting Opinion Cavanagh, J. both, activity, pharmacological
ture or or such as the following, are included in 1: schedule
(i) tetrahydrocannabinol, op their ****cisor trans and A1 tical isomers.
(ii) tetrahydrocannabinol, cis or trans and their A6 optical isomers. A3,4
(iii) tetrahydrocannabinol, or cis trans and their optical isomers.
Notably, construing part when MCL 333.7212 as of Code, the Public Health are “intended to provisions applicable be consistent with federal and state law and construed, necessary, shall be when to achieve that 333.1111(1). consistency.” Michigan’s definition of “marijuana” is identical all relevant to the portions 802(16).1 federal definition. See USC Yet no federal 11-carboxy-THC court has held that controlled substance. As the Seventh Circuit Court of stated, Appeals “The of the legislative history [Con trolled Act purpose Substances] indicates that of banning marijuana euphoric was to ban the effects produced by THC.” United States v Sanapaw, F3d (CA 492, 495 7, 2004). Significantly, every expert who testified in these acknowledges, 11-carboxy-THC cases no pharmacological has effects on a person. 1 The federal statute states: parts plant The term “marihuana” means all Cannabis L., not; growing thereof; sativa whether or the seeds the resin any part plant; every compound, extracted from of such
manufacture, salt, derivative, mixture, preparation or of such plant, its seeds or resin. Such term does not include the mature stalks, plant, produced stalks of such fiber from or such oil cake plant, any compound, made from the seeds of such other manu- facture, salt, derivative, mixture, preparation or of such mature therefrom), fiber, (except oil, cake, stalks resin extracted or plant incapable germination. the sterilized seed of such which is 802(16).] [21 USC People v Derror Dissenting Opinion Cavanagh, J. Further, Appeals the District of Columbia Court of marijuana held that “the definition of was intended to include those which contain THC parts exclude do not.” United States parts those Walton, 305, 307; 514 F2d 201 App 168 US DC long Numerous courts have also held that the statute is species marijuana containing intended to outlaw “all See, tetrahydrocannabinol. e.g., . . .” United States v (CA added). 7, 1981) 652 F2d Lupo, (emphasis Therefore, construing definition “mari Michigan’s juana” contrary to include to and years inconsistent with of federal law. *24 majority subtly
While the criticizes the federal courts using legislative history conclusions, to reach their statute, as to the opposed “plain language” of the the majority guilty itself is of ignoring plain language the MCL to reach In its conclusion. 333.1111(1), Legislature the states that provisions the Public Health Code are intended to be construed consistently applicable with federal law. The Legislature did not state that the clear provi- mandate to construe consistently sions with federal law can ignored be when majority the believes that the federal courts have not properly Further, decided the cases before them. the majority’s seemingly minor critique legis- of the use of lative history actually quite is remarkable when one considers that the at in statutory language issue this well language case—as the federal statute —is certainly plain unambiguous, no matter how majority much the tries to convince a reader that it is. by reviewing majority’s This is best illustrated approach interpreting “plain” language. case, majority recognizes To decide this that the defined, term “derivative” needs to be so it consulted majority scientific dictionaries to do so. The found that 475 Mich Opinion by Dissenting Cavanagh, J. “divergent” there were definitions of “derivative” to degree majority such a that the members of the had to they choose the one believed would best effectuate intent, Legislature’s using nothing guide them ex- their cept Notably, majority beliefs.2 even states that Instead, it decided not to follow “most” definitions. majority chooses to ignore most definitions because majority’s these definitions would not out- support come, majority ultimately and the the one settles on definition that support posi- would allow it to best its tion.
Simply, contrary
majority’s
assertions,
to the
bold
there
nothing plain
unambiguous
or
about
statute
a term
uses
with definitions that are so diverse
they
support
totally
can
two
different
In
outcomes.
fact,
very meaning
this is the
of the term “ambiguous.”
A
ambiguous
statute is
when “reasonable minds could
differ
respect
meaning....”
MCI,
to its
In re
411;
at
supra
Co,
see also Perez v Keeler Brass
461 Mich
(2000) (In
602, 610;
ally to another substance and theoretically derivable ” from it.’ Ante at quoting Merriam-Webster’s On- line Medical Dictionary. majority does this because it believes that closely this definition most effectuates Legislature. the intent of the majority But the ignores statutory other provisions indicate that is not a controlled Contrary majority’s substance. to the posi- tion, MCL 333.7212 does not plainly unambigu- ously classify 11-carboxy-THC as a schedule 1 con- trolled substance. 11-carboxy-THC is not listed majority attempts I inconsistency my note that the to create an position actually majority when none exists. n Ante at 328-329 7. The prior Creek, references a I case that wrote — Stanton v Battle 466 Mich (2002) 611; 647 principles NW2d 508 states that I used the same — and majority using However, I majority criticize the in this case. my opinion Stanton, closely. recognized should read in Stanton more In I divergent there were definitions of the term “motor vehicle” and closely Legislature’s that one should be selected that most effectuates the stated, “Fortunately, jurisprudence I intent. further our under governmental liability provides regarding tort act an answer added). (emphasis should be selected.” Id. at 618 In direct definition my analysis Stanton, majority contrast jurispru has not used instead, guide decision; majority solely dence to its those in the have used personal their beliefs about what the outcome of this case should be to guide such, majority ignored their decision. As has the rules of statutory in its construction effort to arrive at its desired result. *26 475 Mich Dissenting by Opinion Cavanagh, J. majority in the The rests its entire
anywhere statute. in the on the use of the word “derivative” argument statute, analysis majority is flawed because but this the fact that dismissively ignores reaches a result that effect on a 11-carboxy-THC pharmacological has no explicitly require MCL 333.7211 does not person. While have a effect to con- pharmacological that a substance substance, stitute schedule controlled statute state that a substance is classified as explicitly does if high potential schedule controlled substance it has a abuse, naturally requires pharmacological for effect. has that a Legislature placed
Our stated substance is “in 1 if finds that [the administrator] no high potential substance has abuse has in accepted medical use treatment the United States accepted safety or lacks for use treatment under added). supervision.” (emphasis medical MCL 333.7211 But there dispute 11-carboxy-THC is no has no effect. All the pharmacological experts including ex- — Glinn, Dr. Michelle of the perts supervisor who is toxicology laboratory Michigan State Police Lab, Adatsi, testify by Crime and Dr. Felix both called to prosecution has no —admit on a pharmacological person whatsoever. effect by Legislature Other listed factors consider making a determination about the classification of a substance are:
(a) potential The actual or relative for abuse. (b) effect, pharmacological The scientific evidence of its if known.
(c) knowledge regarding The of current state scientific the substance.
(d) history pattern The and current of abuse. v Derror Dissenting Opinion Cavanagh, J. (e) duration, significance scope, of abuse. (f) public The risk to the health. produce psychic
(g) potential of the substance liability. physiological dependence *27 (h) precursor аn immediate Whether the substance is already [MCL a controlled under this article. substance 333.7202.] if a of these factors that are used to determine
None substance should be classified as a schedule controlled applies 11-carboxy-THC. 11-carboxy-THC substance and, pharmacological person, has no effect on a there- fore, it no for abuse or potential potential has Further, produce dependence. expert as witness Dr. testified, 11- impossible Michael Evans it is to take THC; therefore, and make it into it carboxy-THC is not already an immediate of a precursor substance classi- fied a schedule 1 controlled as substance.
Our Legislature selected these factors and the words
“high potential
they
for abuse” for a
cannot be
reason —
ignored by
majority merely
they
because
cannot be
reconciled with the majority’s rationale. “It is a well-
established rule
statutory
provi-
construction that
sions of a statute must be
in light
construed
of the other
provisions of the
to carry
statute
out the apparent
purpose
Legislature.”
Total
Farrington v
Petro-
(1993).
leum, Inc,
201, 209;
442 Mich
stance, it that completely and reaches result disre- gards provisions other relevant of the statute.
Further, majority pronouncements makes such 11-carboxy-THC is a derivative “because it is a chemical compound produced when metabo- THC, compound lizes which is a of similar structure.” Ante at majority 326-327. The then states that “THC are identical in 11- except carboxy-THC, two are added to oxygen atoms and three hydrogen atoms are removed from the eleventh carbon to make it more water soluble and easier to excrete.” merely Ante at 327. But compound because a looks similar in its basic chemical formula does mean that it is a compound of similar structure for the purposes of controlled substance classification methods. Water hydrogen look peroxide similar —H20 and H202 —but are, they course, different very substances. One is a you survive; substance must drink to the other will kill *28 if you you trying drink it. Instead of to delve into areas in science which the experts agree, do not even the majority should simply statutory refer to the language and the fact that when considering factors selected by the Legislature, there is no classify rationale to 11-carboxy-THC as a schedule 1 controlled substance.
Incredibly,
majority
attempts
present
to
the ex-
pert testimony
in
being
agreement.
See
n
ante at 329
8. Yet this inaccurate representation
supported
is not
when one actually reads and
considers
testi-
full
mony
experts.
The experts
agreement
are not in
about whether
a is derivative of mari-
juana and, therefore, a schedule 1 controlled substance.
While the
experts may
agreement
be
over some
scientific principles, they disagree over the
key issue
case,
and it is misleading
present
this in
Derror
Dissenting Opinion by Cavanagh,
J.
McCoy and Dr. Evans
Notably, Dr. Daniel
other manner.
metabolite,
a
ll-carboxy-THC
both testified
therefore,
and,
ll-carboxy-
not a derivative
but it was
As Dr.
not a schedule 1 controlled substance.
THC was
interpretation adopted
under the
McCoy explained,
derivative,
chemical
every
a
majority “everything
is
something else.” He
can be derived from
on earth
that, using
majority’s interpreta-
explained
further
burned,
a lot of
tion,
develop
if THC is
“we will
dioxide,
the extent a
chemicals,
including carbon
and has
something that comes from
similar
derivative is
dioxide
to some
carbon
would
part,
chemical structure
testified, “It
material.....”
Dr. Evans
be scheduled
car-
is not a derivative....
To call
[ll-carboxy-THC]
be like—carbon
boxy THC a derivative of THC would
get
you
that when
dioxide is a metabolite of THC. You’ll
you
in a
If
were to call
exhale or take
breath....
derivative, you
a
would have to call
carboxy THC
short,
In
Dr.
of THC . ...”
carbon dioxide
derivative
McCoy
disagreed
majority’s
and Dr. Evans
support
the rationale that would
interpretation because
a derivative would also
classifying ll-carboxy-THC as
therefore,
dioxide;
could be
apply to carbon
violating
with carbon dioxide
guilty
system
majority
result that even the
finds to
his
—a
Further,
majority
highlights
even
insupportable.
it refers to the diver-
disagreement
the scientific
when
“that most
definitions for “derivative”
states
gent
encompass
of the above definitions of ‘derivative’ would
all of the
metabolites such as carbon dioxide. Not
above
however,
Thus,
it
definitions,
do so.” Ante at 327.
one in which the
suggest
false to
this case is
ll-carboxy-THC
derivative
experts agree
*29
and, therefore, a
1 controlled sub-
schedule
stance.
As it 333.7212(l)(d), MCL the Court of Appeals properly held that the statute was enacted to deal with substances that were produced synthetically. The statute “synthetic refers to equivalents” and “syn- thetic substances, derivatives, and their isomers with similar chemical structure or pharmacological activ- 333.7212(l)(d). ity... .” MCL Synthetic substances are substances that altered, were sometimes in minor ways, but that can still pharmacological have effects on a person. However, 11-carboxy-THC is a metabolite; it is a natural substance that occurs a person’s when THC, breaks down and it is not a synthetic substance. Therefore, 11-carboxy-THC is also not classified as a 333.7212(l)(d). controlled substance MCL Moreover, in Hemp Industries Ass’n v Drug Enforce- (CA ment Admin, 1082, 333 F3d 9, 2003), Ninth Circuit Court of Appeals interpreted regulation with language similar to that used in MCL 333.7212(l)(d) and held that regulation en- acted because THC was being produced synthetically and should be Likewise, controlled. the comparable statute at issue addresses produced substances syn- thetically and not those produced naturally through metabolism.
Finally, the Legislature knows how to use the term “metabolite” when it wants to. In 722.623a, Legislature specifically uses the term “metabolite” in discussing child abuse reporting requirements. The statute specifically refers to “a metabolite of a con- trolled substance.” The Legislature presumed to aware of all existing statutes when it enacts another. Walen v Dep’t Corrections, 443 Mich 248; 505 NW2d 519 The fact that the Legislature specifi- cally chose not to include the word “metabolite” is further indication that 11-carboxy-THC should not be *30 Derror Dissenting by Opinion Cavanagh, J. the under substance 1 controlled as a schedule classified Legislature. the by selected languаge 11-carboxy- Thus, majority’s interpretation the is flawed substance 1 controlled THC is ignores Namely, interpretation reasons. numerous our by chosen statutory language law, the federal case statutory provisions, relevant and other Legislature, construction. No- statutory tenets well as basic in an theory results majority’s unsupportable tably, flawed but is just analytically that is interpretation unconstitutional. also MAJORITY’S THE THE ISSUE WHETHER IS OF THE STATUTE INTERPRETATION PRESERVED IS PROPERLY
UNCONSTITUTIONAL
majority’s interpretation
The issue whether
raised
properly
has been
the statute is unconstitutional
assertion that
Contrary
majority’s
to the
and preserved.
properly pre-
not been
constitutional
issue has
sufficiently raise this
served, defendant Derror did
question presented
Derror’s
first
issue. Defendant
THC, A METABOLITE OF
states,
CARBOXY
“IS
EF-
PHARMACOLOGIC
MARIJUANA WITH NO
1 CONTROLLED SUB-
FECTS, A SCHEDULE
that defendant Derror
One of the reasons
STANCE?”
is not a schedule
controlled
argues
interpretation
an
would be
is that
such
substance
expressed in one of
explicitly
This is
unconstitutional.
issue,
states,
addressing this
subheadings
In MCL 333.7106 Does
Marijuana
“The Definition Of
Expan-
Unprecedented
THC. The
Carboxy
Include
Not
Definition,
By The U.S.
Originally Adopted
sion Of This
Contrary
Language
To The Plain
In
Is
Congress
Intent, And Renders
Statute, Legislative
Of
Overbroad.”
Constitutionally Vague And
Statute
stitutional ordinary an provide of the statute does pretation provides in Constitution Amendment of the United States The Fifth part: relevant *32 life, liberty, property, deprived or person shall... be No Const, V] process [US .... Am due of law
without part: provides Michigan in relevant Constitution The life, liberty property, deprived person . or shall be .. No 1963, 1, § process 17.] [Const of law. art due without 5 law, only majority instead refer to this rule of the does not I note that though vague even stating down as will not be struck that a statute majority’s choice to imagined. See ante at 337. cases can he doubtful reasonably to ensure that it is construe a statute ignore mandate to its today. its decision is central for it to reach constitutional Mich Dissenting Opinion by Cavanagh, J.
person prohibited. notice what is with about conduct driving prohibits any amount of a body. controlled substance a person’s However, interprets the in such majority statute a provide to way guidance ordinary person as to no an about he can drive legally given when scientific testimony 11-carboxy-THC easily can be found in a person’s for after system marijuana ingested. weeks long any This means that after possible impairment from ingesting marijuana off, person has worn still cannot drive according majority’s version of the also statute. It means that whether a is person deemed any 11-carboxy-THC to have amount of system in his depends on whatever cutoff standard for detection is set laboratory doing testing.6 lаcks any This sort fair guidance give a when he person notice of can Further, drive a car. legally explained by Dr. McCoy, as tests become more sophisticated, scientists will ulti- able mately be to determine if a person actively ever ingested passively marijuana. Under majority’s one theory, legally no could drive a car if he ever inhaled marijuana. The majority states that it “irrelevant” long cannot drive person legally until after possible impairment from ingesting has off, weeks, months, worn even if this or years. Further, majority deems it “irrelevant” that a person cannot drug determine without clinical testing when no longer can detected in be person’s system. majority believes all this is con- stitutional, and a is on driving notice that may indefinitely prohibited because ingesting marijuana is a misdemeanor. MCL penalty 333.7404. But the 333.7404(2)(d) ingesting marijuana under MCL is “im- 100, 50, example, reported 20, For cutoff standards have been at — nanograms. Huestis, (marijuana) Cannabis on human Effects performance, behavior and 14 Forensic Sci Rev 26-27 *33 Derror by Dissenting Opinion Cavanagh, J. days of not a fine prisonment more than for not violating penalty for The $100.00, or both.” more than being prohibited from misdemeanor statute nothing again. driving Thus, there is possibly a car ever put person notice on that serves 333.7404 in MCL may very ingesting that he mean well permanently. indefinitely or even cannot drive interpretation majority’s criminalizes now The range out makes criminals conduct and broad knowledge people the conduct have no who majority’s they inter- The to avoid. must now seek people who pretation out of criminals even makes through pas- merely marijuana smoke have inhaled hearing Evаns, Dr. who testified inhalation. sive regarding and who has worked defendant Kurts Drug including agencies, the United States numerous get up Administration, stated, “Youcan Enforcement nannograms per [sic] eight, mil five, or ten to levels of by passive carboxy inhalation.”7 THC in blood expert prosecutor’s case, Glinn, Dr. in the Derror top Marilyn one of the Huestis is admitted that Dr. ejqperts in the area of its metabolites on cannabis and by chemistry. toxicology Dr. In an article written exposure to can- “Environmental Huestis, she states: through passive inhalation of can occur nabis smoke by Several smoke non-users. and exhaled side-stream possible that it is have indicated studies research produce me- of cannabinoid detectable concentrations plasma passive inhala- after in the urine tabolites tion of cannabis smoke.” contrary argued at oral prosecutor to the in the Kurts case position. supported his argument article that he stated and cited an record, a review admitted into article was never
While this
proposition
not stand for the blanket
indicates that it does
article
argued.
prosecutor
Dissenting Opinion Cavanagh, J. — Huestis, on human (marijuana) Cannabis Effects performance, behavior and Forensic Sci Rev *34 11-carboxy-THC There scientific that is evidence can indeed into a get person’s body through inhala- passive tion. This is contrary majority’s to assertion that in a 11-carboxy-THC only present person’s body is after they something “done illegal.” have Ante at 338. Scien- 11-carboxy-THC tific of being evidence after present passive inhalation that a person means who attends a a concert or where gathеring someone is smoking and marijuana passively inhales this will smoke have 11-carboxy-THC body. in his With no in place standard cutoff, a to use as it does matter level what of 11-carboxy-THC because, this inhalation results in un- majority’s der interpretation statute, of the it is now illegal person for that any person has who ever ingested marijuana if to drive can 11-carboxy-THC be detected. As the trial in the court Derror case correctly noted, the majority’s theory, long under as “as we can identify [ll-]carboxy-THC person’s] system, ap- [a parently they and, can’t the highway be on as science that progresses, years.” could be for argument While such an may at first seem far- fetched, is the logical it result of the majority’s inter- pretation the statute. The majority’s interpretation only by limited testing the scientific used in a particular case. If a can 11-carboxy-THC test detect ingested from that ago, one ten year years ago, years it ago, drive, is now a crime to to according the majority. of the potential
Because tremendous for arbitrary and discriminatory enforcement in charging Michigan citizens a crime interpreta- with under majority’s tion, the statute is unconstitutional second v Derror Dissenting Opinion Cavanagh, J. has Supreme Court The United States reason well. vagueness doc aspect that a critical recognized “ legislature that a establish requirement ‘the trine ” Ko govern enforcement.’ guidelines to law minimal US 358, Goguen, lender, supra quoting at Smith ; 2d 574; 1242 L Ed Ct S Otherwise, permit enforce a criminal statute would officers police ment on the basis of whims prosecutors. crime to operate it is a majority’s belief in a 11-carboxy-THC per- amount
vehicle that а can choose prosecutor means son’s 0.01 charge person nanograms found have system prosecutor in his if the chooses. case, also In the Kurts the trial court discussed charged after could weeks possibility you can test stating “maybe ingesting marijuana, *35 later, weeks but 11-carboxy-THC] three [for positive the isn’t that could be under any you there evidence a of that it was prosecutor responded influence it.” The but, our office jury, “hopefully, the question reality such a case.” But the charge wouldn’t even statute, of majority’s interpretation that under the the and others charge many a could in that case prosecutor the interpretation of of majority’s improper because the statute, unsure of con- Michigan citizens what leaving be criminal.8 duct will deemed case, prosecutor prosecutor the in the the in the Derror Unlike Kurts very by charge possibility, a as indicated the case noted that a was real following during exchange hearing. trial court to the a stated your you saying prosecutor, “[I]t now is that it’s seems like what are hypothetically consumption position the of assume that we could whatsoever, effect, lady’s marijuana absolutely no on this had years.” driving, penalty still from two to 15 but the should be enhanced People, prosecutor replied, position of the Your “That is the Honor ....” 475 Mich
Dissenting
Opinion
Cavanagh,
J.
Third,
finally, majority’s
the
interpretation
statute is unconstitutional because it is not rationally
objective
related to the
statute. See
v
Harvey
(2003).
1, 7;
469 Mich
Michigan,
NW2d 767
For a
statute to be deemed unconstitutional under rational-
review, it
legislation
basis
must be
shown
“arbitrary
wholly
in a
way
unrelated
rational
to the
objective
statute.” Smith Employment Security
Comm,
231, 271;
410 Mich
Plainly, charge there is no rational person reason to a passively marijuana who inhaled smoke at a rock con- cert a ago month and who now decides to drive to work. There is no rational to charge reason a person who DERROR PEOPLE V Dissenting Opinion by Cavanagh, J. now decides ago and who two weeks inhaled I milk. gallon a While pick up the drive to store a position Legislature’s the certainly agree with while under driving for punished person should of the substance because of a controlled influence outcomes, interpreta- majority’s tragic potential wholly unrelated arbitrary and the statute is tion of say To of the statute. way objective to the a rational amount system any contains driving person’s while is a no pharmacological that has a substance effect esti- the most conservative that under given crime — scientific the current by prosecution, offered mates for at least of the substance can find evidence testing under the Constitution. permissible not four weeks —is to avoid role to construe statutes It is this Court’s Harriss, at unconstitutionality, supra see danger of longstanding majority ignored has today the yet statutory of the A reasonable construction principle. that 11- finding language possible example, —for evidence may be used as circumstantial carboxy-THC chosen a yet majority has statutory violation — and the contrary to the Constitution position citizens. rights our
CONCLUSION statutory majority interprets provi- Because wording to the chosen contrary express at issue sions contrary to the intent Legislature, as well Today’s hold- I dissent. Legislature, respectfully must Michigan citi- criminals of numerous ing now makes law-abiding, who, today, considered zens before were Now, if a of our communities. productive members ingested marijuana actively passively has ever breaking the drives, knowing if he is he drives 11-carboxy-THC can be law, if amount of because *37 Mich Dissenting Opinion by Cavanagh, J. detected —no matter when it previously ingested is committing a crime. The majority’s —he interpretation, which has no rational relationship Legislature’s genuine concerns about operating ve- hicle impaired, while violates the United States Consti- tution and the Michigan Constitution. Therefore, I would affirm the decision of the Court of Appeals. JJ., J. Kelly,
Weaver Cavanagh, concurred with