PEOPLE v FEEZEL
Docket No. 138031
Supreme Court of Michigan
June 8, 2010
486 MICH 184
Argued October 7, 2009 (Calendar No. 8). Decided June 8, 2010.
In separate opinions, the Supreme Court held:
Evidence of a victim‘s intoxication may be relevant to the element of proximate causation found in
1. In the criminal law context, causation has two parts: factual causation and proximate causation. Factual causation exists if a finder of fact determines that “but for” the defendant‘s conduct the result would not have occurred. Proximate causation is a legal construct designed to prevent criminal liability from attaching when the result of the defendant‘s conduct is viewed as too remote or unnatural. If an intervening cause supersedes a defendant‘s conduct, so that the causal link between the defendant‘s conduct and the victim‘s injury is broken, proximate cause is lacking and criminal liability cannot be imposed. Whether an intervening cause supersedes a defendant‘s conduct is a question of reasonable foreseeability. Ordinary negligence is reasonably foreseeable and thus is not a superseding cause that would sever proximate causation. Gross negligence or intentional misconduct on the victim‘s part is sufficient to do so because it is not reasonably foreseeable. Gross negligence means wantonness and disregard of the consequences that may ensue. It is conduct indicating that the actor is aware of the risks but indifferent to the results.
2. Under the facts of this case, evidence of the victim‘s intoxication was relevant to the element of causation, and the trial court abused its discretion by excluding evidence of the victim‘s blood alcohol level.
3. Defendant‘s conviction of operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death, should be vacated on an additional basis. Marijuana is a schedule 1 controlled substance under
Justice CAVANAGH, joined by Chief Justice KELLY and Justice HATHAWAY, wrote the lead opinion, setting forth the Supreme Court‘s holding.
Justice WEAVER, concurring, concurred in Justice CAVANAGH‘S opinion, with the exceptions of footnote 14 and certain citations of authority in part II(A)(3) of his opinion.
Reversed; convictions vacated and case remanded.
Justice YOUNG, joined by Justices CORRIGAN and MARKMAN, concurring in part and dissenting in part, concurred in the portion of Justice CAVANAGH‘s opinion that concluded that there may be circumstances in a criminal case that support introducing evidence of a victim‘s intoxication when there is a jury-submissible question of fact regarding gross negligence. He disagreed, however, with the decision to overrule Derror. In enacting
- CRIMINAL LAW - DRUNK DRIVING CAUSING DEATH - LEAVING THE SCENE OF AN ACCIDENT THAT RESULTED IN DEATH - CAUSATION - PROXIMATE CAUSE - GROSS NEGLIGENCE - VICTIM‘S INTOXICATION - EVIDENCE OF BLOOD ALCOHOL LEVEL.
Evidence of a victim‘s intoxication may be relevant to the element of proximate causation in the crime of leaving the scene of an accident that resulted in death,
MCL 257.617(3) , or the crime of operating a motor vehicle while intoxicated or with any amount of a schedule 1 controlled substance in his or her body, causing death,MCL 257.625(4) and(8) , if the trial court determines as a threshold matter that there is a question of fact for the jury about whether the victim acted in a grossly negligent manner. - CONTROLLED SUBSTANCES - SCHEDULE 1 CONTROLLED SUBSTANCES - MARIJUANA - 11-CARBOXY-TETRAHYDROCANNABINOL.
11-carboxy-tetrahydrocannabinol is not a schedule 1 controlled substance (
MCL 333.7212 ).
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, for the people.
Douglas R. Mullkoff and F. Mark Hugger for defendant.
Amici Curiae:
Brian A. Peppler, David S. Leyton, Kym L. Worthy, Donald A. Kuebler, and Timothy A. Baughman for the Prosecuting Attorneys Association of Michigan.
John R. Minock and Christine A. Pagac for the Criminal Defense Attorneys of Michigan.
CAVANAGH, J. Defendant struck and killed a pedestrian when he was operating his vehicle while intoxicated. A jury convicted defendant of failing to stop at
We hold that the trial court abused its discretion by failing to admit evidence of the victim‘s intoxication because it was relevant to the element of causation in
I. FACTS AND PROCEDURAL HISTORY
Shortly before 2:00 a.m. on July 21, 2005, defendant struck and killed a pedestrian, Kevin Bass, with his car while traveling on Packard Road in Ypsilanti Township in Washtenaw County. At the time of the accident, Packard Road was an unlit, five-lane road, and it was dark outside and raining heavily. Although there was a sidewalk adjacent to Packard Road, the victim was walking down the middle of the road, with his back to oncoming traffic. The victim was extremely intoxicated,
Before trial, the prosecutor filed a motion in limine to preclude evidence related to the victim‘s intoxication. The prosecutor argued that the victim‘s intoxication was irrelevant to whether defendant caused the accident or caused the victim‘s death. The trial court agreed and suppressed the evidence.
At trial, testimony revealed that defendant had been at two bars earlier that evening. At one bar, defendant was accompanied by Nicole Norman. Norman testified that she and defendant were at the bar from 11 p.m. to 1:30 a.m. At no time did she see defendant smoke marijuana, and defendant did not smell of marijuana. Norman further testified that after they left the bar, defendant drove her to Stephanie Meyers‘s house. After picking up Meyers, defendant dropped Norman and Meyers off at Norman‘s car.
Meyers testified that she was a passenger in Norman‘s car and Norman was driving down Packard Road moments before the accident. Meyers stated that it was pouring outside, and she did not see the victim until he was alongside the driver‘s side door. It was then that
Defendant‘s accident reconstruction expert found that defendant would have had to have been driving 15 miles per hour to avoid hitting the victim. The prosecution‘s accident reconstruction expert agreed with defense counsel that if defendant first saw the victim from 30 feet away, then defendant would have had to have been traveling at a rate of 10 to 15 miles per hour to avoid the accident.
Defendant was convicted of failing to stop at the scene of an accident that resulted in death; OWI, second offense; and operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death. Defendant appealed, claiming, in relevant part, that the trial court abused its discretion by refusing to admit evidence of the victim‘s BAC, that the trial court erred by failing to instruct the jury on proximate cause with respect to the charges of failing to stop at the scene of an accident that resulted in death and operating a motor vehicle with a schedule 1 controlled substance, causing death, and that his conviction of operating a motor vehicle, causing death, based on the presence of 11-carboxy-THC in his body violated his due process rights under the Fifth and Fourteenth amendments of the United States Constitution.
In a divided decision, the Court of Appeals affirmed defendant‘s convictions. Noting that it is foreseeable for
The partial dissent argued that the trial court‘s deficient instruction with respect to
II. ANALYSIS
A. THE CAUSATION ELEMENT
The first issue presented in this appeal is whether the trial court abused its discretion by refusing to admit evidence of the victim‘s BAC. We hold that, under the facts of this case, the trial court abused its discretion by refusing to admit the evidence because it was relevant to the element of proximate causation in
1. STANDARD OF REVIEW
A trial court‘s decision to either admit or exclude evidence “will not be disturbed absent an abuse of ... discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). A trial court abuses its discretion when its decision falls “outside the range of principled outcomes.” People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008).
If a reviewing court concludes that a trial court erred by excluding evidence, under
Three of the offenses with which defendant was charged contain an element of causation, so the prosecution was required to prove causation beyond a reasonable doubt for each offense. The Court of Appeals erred to the extent that it held otherwise. The plain language of the statutes that prohibit OWI causing death,
In People v Schaefer, we stated that, in the criminal law context, the term ” ‘cause’ has acquired a unique, technical meaning.” People v Schaefer, 473 Mich 418, 435; 703 NW2d 774 (2005). Specifically, the term and concept have two parts: factual causation and proximate causation. Id. at 435-436. Factual causation exists if a finder of fact determines that “but for” defendant‘s
Proximate causation “is a legal construct designed to prevent criminal liability from attaching when the result of the defendant‘s conduct is viewed as too remote or unnatural.” Id. If the finder of fact determines that an intervening cause supersedes a defendant‘s conduct “such that the causal link between the defendant‘s conduct and the victim‘s injury was broken,” proximate cause is lacking and criminal liability cannot be imposed. Id. at 436-437. Whether an intervening cause supersedes a defendant‘s conduct is a question of reasonable foreseeability. Id. at 437. Ordinary negligence is considered reasonably foreseeable, and it is thus not a superseding cause that would sever proximate causation. Id. at 437-438. In contrast, “gross negligence” or “intentional misconduct” on the part of a victim is considered sufficient to “break the causal chain between the defendant and the victim” because it is not reasonably foreseeable. Id. Gross negligence, however, is more than an enhanced version of ordinary negligence. Id. at 438. “It means wantonness and disregard of the consequences which may ensue....” People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).4
3. SUPPRESSION OF THE EVIDENCE
We must examine whether, in this case, the victim‘s BAC was a relevant and admissible fact for the jury‘s consideration when determining whether the prima facie element of proximate causation was proved beyond a reasonable doubt. We hold that it was. However, we caution that trial courts must make a threshold determination that there is a jury-submissible question of fact regarding gross negligence before such evidence becomes relevant and admissible.
Under these rules of evidence, a court must make a threshold determination in cases such as this of whether evidence of the victim‘s intoxication is relevant to the element of proximate causation. If the evidence is relevant, a court must also determine whether the evidence is nevertheless inadmissible under MRE 403. We conclude that, under the facts of this case, the evidence of the victim‘s BAC was relevant because it was both material and probative. In addition, its probative value was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury because the evidence was highly probative of the element of proximate causation.
First, the materiality requirement of MRE 401 was met because, as explained earlier, the charges at issue required the prosecution to prove an element of causation beyond a reasonable doubt. See Crawford, 458 Mich at 389. In addition, under the broad definition of “probative,” evidence of the victim‘s BAC must merely have any tendency to make gross negligence on the part of the victim more or less probable. See id. at 389-390. Depending on the facts of a particular case, there may be instances in which a victim‘s intoxication is not sufficiently probative, such as when the proofs are insufficient to create a question of fact for the jury
Second, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The evidence was not unfairly prejudicial because, as ex-
In addition, the probative value of the evidence was not, as the prosecution argues, substantially outweighed by the danger of confusion of the issues or misleading the jury. The prosecution‘s argument that the admission of evidence of the victim‘s BAC would “shift responsibility” from defendant ignores that under the circumstances of this case, the victim‘s conduct directly related to the disputed element of proximate causation and, therefore, whether the victim‘s actions amounted to ordinary or gross negligence. See, e.g., May v Goulding, 365 Mich 143, 148; 111 NW2d 862 (1961) (describing the difference between wanton misconduct and ordinary negligence as ” ‘faults of different hues in the spectrum of human conduct’ “) (citation omitted). As a result, the probative value of the victim‘s high level of intoxication was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury because, under the facts of this case, the victim‘s BAC was highly probative of the element of proximate causation, which necessarily required the trier of fact to determine whether the victim‘s own behavior amounted to a superseding cause.8
For all these reasons, we disagree with the conclusion of the Court of Appeals that the evidence was irrelevant
Therefore, while the victim‘s intoxication is not a defense, under the facts of this case it should have been a factor for the jury to consider when determining whether the prosecution proved beyond a reasonable
We emphasize, however, that evidence of a victim‘s intoxication may not be relevant or admissible in all cases. Indeed, the primary focus in a criminal trial remains on the defendant‘s conduct. Accordingly, any level of intoxication on the part of a victim is not automatically relevant, and the mere consumption of alcohol by a victim does not automatically amount to a superseding cause or de facto gross negligence. Instead, under MRE 401, a trial court must determine whether the evidence tends to make the existence of gross negligence more probable or less probable than it would be without the evidence and, if relevant, whether the evidence is inadmissible under the balancing test of MRE 403.
Thus, when determining whether evidence of a victim‘s intoxication is admissible, the trial court must make a threshold determination that evidence of the victim‘s conduct is sufficiently probative for a proper purpose—to show gross negligence. In other words, the trial court must determine that the issue of gross negligence is “in issue.” See People v McKinney, 410 Mich 413, 418; 301 NW2d 824 (1981). The court may allow the admission of evidence of the victim‘s intoxication to aid the jury in determining whether the victim‘s actions were grossly negligent only when the proofs are sufficient to create a question of fact for the jury. If a trial court cannot come to the conclusion that a reasonable juror could view the victim‘s conduct as demonstrating a wanton disregard of the consequences that may ensue, however, then the evidence of intoxication is not admissible.
4. JURY INSTRUCTIONS
To aid the trial court on remand, we note that in this case, the jury instructions, when read as a whole, may have been confusing. In Schaefer, we stated that the term “cause” is “a legal term of art normally not within the common understanding of jurors....” Schaefer, 473 Mich at 441. As a result, a jury could not be expected to understand that the term “required the prosecutor to prove both factual causation and proximate causation.” Id.
The trial court instructed the jury and gave the jury a written instruction on the term‘s unique meaning, but the instruction was buried within the elements of the charge of OWI causing death and not included in the instructions for
B. DEFENDANT‘S CONVICTION UNDER MCL 257.625(4) AND (8)
The next issue presented in this appeal is whether defendant‘s conviction under
We hold that 11-carboxy-THC is not a schedule 1 controlled substance under
1. STANDARD OF REVIEW AND THE RULES OF STATUTORY INTERPRETATION
Questions of statutory interpretation are reviewed de novo. Potter v McLeary, 484 Mich 397, 410; 774 NW2d 1 (2009). The primary goal is to give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). When a statute is ambiguous, judicial construction is appropriate to determine the statute‘s meaning. See id. When determining the Legislature‘s intent, the “‘statutory language is given the reasonable construction that best accomplishes the purpose of the statute.‘” Id. (citation omitted). Indeed, “[i]t 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, 442 Mich 201, 209; 501 NW2d 76 (1993). As a result, “the entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).
2. BACKGROUND: MCL 257.625(8) AND DERROR
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.]
Under
“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) .]
On the basis of these statutes, a majority of this Court concluded in Derror that 11-carboxy-THC is a schedule 1 controlled substance. The majority reasoned that “the Public Health Code includes within the definition of marijuana every compound and derivative of the plant. . . .” Derror, 475 Mich at 325. After examining several medical dictionaries with diverse definitions, the majority chose the definition of “derivative” that it believed most closely effectuated the Legislature‘s intent, which was “a chemical substance related structur
3. 11-CARBOXY-THC IS NOT A SCHEDULE 1 CONTROLLED SUBSTANCE BECAUSE IT IS NOT A DERIVATIVE OF MARIJUANA
Derror was wrongly decided. The Derror majority erred because it interpreted “derivative” by choosing a definition, out of several divergent definitions, that seemed to include 11-carboxy-THC as a derivative when experts were in disagreement about whether 11-carboxy-THC is a derivative. Derror, 475 Mich at 327-328; id. at 350-351 (CAVANAGH, J., dissenting). More importantly, however, the majority‘s interpretation ignored and was inconsistent with other relevant statutory provisions. Specifically, the majority failed to interpret
To begin with, our Legislature has declared that the provisions of the Public Health Code are “intended to be consistent with applicable federal and state law and shall be construed, when necessary, to achieve that consistency.”
In addition, in interpreting “derivative” by choosing a definition, out of several divergent definitions, that seemed to include 11-carboxy-THC, the Derror majority ignored other relevant statutory provisions that suggest that 11-carboxy-THC should not be considered a schedule 1 controlled substance. Our Legislature has indicated that the Michigan Board of Pharmacy must include a controlled substance in schedule 1 if “the substance has high potential for abuse” and has no accepted medical use or lacks accepted safety for use in treatment.
- The actual or relative potential for abuse.
- The scientific evidence of its pharmacological effect, if known.
- The state of current scientific knowledge regarding the substance.
- The history and current pattern of abuse.
- The scope, duration, and significance of abuse.
- The risk to the public health.
- The potential of the substance to produce psychic or physiological dependence liability.
- Whether the substance is an immediate precursor of a substance already controlled under this article. [
MCL 333.7202 .]
As the Derror dissent indicated, “[n]one 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.” Derror, 475 Mich at 349 (CAVANAGH, J., dissenting). Indeed, “11-carboxy-THC has no pharmacological effect on a person, and, therefore, it has no potential for abuse or potential to produce dependence.” Id. Moreover, “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.” Id. Thus, although
In addition, 11-carboxy-THC is not a schedule 1 controlled substance under
Finally, the definition of “marijuana,”
Therefore, by failing to construe the applicable portions of the Public Health Code to achieve consistency with federal law, and by failing to examine the statute in light of other relevant statutory provisions, the Derror majority failed to effectuate the Legislature‘s intent. We hold that 11-carboxy-THC is not a schedule 1 controlled substance under
4. THE DOCTRINE OF STARE DECISIS
Deciding to overrule precedent is not a decision that this Court takes lightly. Indeed, this Court should respect precedent and not overrule or modify it unless there is substantial justification for doing so. While “stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law,” it is “not a mechanical formula of adherence to the latest decision[.]” Lawrence v Texas, 539 US 558, 577; 123 S Ct 2472; 156 L Ed 2d 508 (2003) (citation and quotation marks omitted).
In Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), this Court formally established a test to determine when it is appropriate to depart from stare decisis.14 First, this Court must consider whether the pre-
As previously explained, Derror was wrongly decided. Applying the three-part Robinson test, we further conclude that the doctrine of stare decisis does not support upholding Derror.
The first factor weighs heavily in favor of overruling Derror because the decision defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement based on the “whims of police and prosecutors.” Derror, 475 Mich at 358-359 (CAVANAGH, J., dissenting). “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.‘” Id. at 359, quoting Kolender v Lawson, 461 US 352, 358; 103 S Ct 1855; 75 L Ed 2d 903 (1983) (citation omitted). In fact, the Court has stated that
Moreover, in 2008 the people of the state of Michigan legalized the use of marijuana in limited circumstances. The Michigan Medical Marihuana Act declared that “changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.”
The second Robinson factor also weighs heavily in favor of overruling Derror because Derror has not become “so embedded, so accepted, so fundamental, to
Finally, although the Michigan Medical Marihuana Act represented a change in the law that lends some support to the third Robinson factor, overall the first two Robinson factors support overruling Derror. Because this Court cannot adhere to its previous, distorted reading of the statute under the doctrine of stare decisis, we overrule Derror to the extent that it is inconsistent with this opinion.
III. CONCLUSION
We hold that the trial court abused its discretion by failing to admit the evidence of the victim‘s intoxication because it was relevant to the issue of causation in
Accordingly, we reverse the judgment of the Court of Appeals, vacate defendant‘s convictions under
KELLY, C.J., and HATHAWAY, J., concurred with CAVANAGH, J.
WEAVER, J. (concurring). I concur in and join Justice CAVANAGH‘s opinion, with the exceptions of footnote 14 and the citations in part II(A)(3) of People v Crawford, 458 Mich 376; 582 NW2d 785 (1998), a case in which I dissented.
YOUNG, J. (concurring in part and dissenting in part). A majority of justices today reach the correct conclusion that there may be circumstances in a criminal case that support introducing evidence of a victim‘s intoxication in order to show gross negligence. I concur in this portion of the lead opinion.
However, while I concur in the decision to grant defendant a new trial, I dissent from the gratuitous decision to overrule People v Derror.1 The decision to
Accordingly, I dissent from the conclusion that 11-carboxy-THC is not a derivative of marijuana within the meaning of Michigan‘s controlled substance laws. I likewise dissent from the decision to overrule Derror.
I. MICHIGAN‘S CONTROLLED SUBSTANCE LAWS
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.4
Tetrahydrocannabinol, or “THC,” is the main psychoactive substance found in the cannabis plant,5 and it is undisputed that THC is a schedule 1 controlled substance.6 The body produces 11-carboxy-THC when it metabolizes THC. Accordingly, it is a “metabolite” of THC.7 In Derror, this Court addressed whether 11-carboxy-THC, as a metabolite of THC, is also a “derivative” of THC.8 Because “derivative” is undefined in the Public Health Code, the Court in Derror used medical dictionaries to define the term and thereby determine whether 11-carboxy-THC is a derivative of THC.9
The Court in Derror properly concluded that the term “derivative” encompasses metabolites. Although medical dictionaries define multiple senses of the term “derivative,” the Court determined that the definition
II. THE DECISION TO OVERRULE DERROR IS A RETREAT FROM STARE DECISIS
A majority of justices today overrule Derror and conclude that 11-carboxy-THC is not a derivative of THC. In doing so, they appear to retreat from their previously stated fidelity to stare decisis.12 The justices
In deciding whether to overturn a precedent of this Court, “[t]he first question, of course, should be whether the earlier decision was wrongly decided.”14 The lead opinion has not shown that Derror was wrongly decided. In fact, it merely repeats similar arguments offered by the dissent in Derror. These arguments were unpersuasive when Derror was decided, and they remain unpersuasive today.
First, the lead opinion claims that the Derror Court “failed to interpret
Second, the lead opinion claims that Derror “ignored other relevant statutory provisions that suggest that 11-carboxy-THC should not be considered a schedule 1 controlled substance.” In particular, the lead opinion claims that the Michigan Board of Pharmacy is not required to include 11-carboxy-THC in schedule 1 because the substance does not have “high potential for abuse.”20 This argument is specious. Although
Because Derror was correctly decided, the decision whether to overrule Derror should end there. However, even if Derror had been wrongly decided, other relevant factors exist that caution against overruling Derror.
Before overruling a wrongly decided precedent, this Court must consider “whether the decision at issue defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.”23 None of these factors compel overruling Derror.
Derror does not defy practical workability merely because of the ”potential for arbitrary and discriminatory enforcement. . . .”24 Moreover, the voters’ approval of the Michigan Medical Marihuana Act25 is not, as the lead opinion suggests, relevant to deciding whether to overrule Derror.26 To begin with, legalization of the use
Finally, the lead opinion expresses concern that Derror impermissibly prohibits
those qualified individuals who lawfully use marijuana in accordance with the Michigan Medical Marihuana Act . . . from driving for an undetermined length of time given the potential of 11-carboxy-THC to remain in a person‘s system long after the person has consumed marijuana and is no longer impaired.[30]
This concern is a red herring. The act itself provides: “All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.”31 Therefore, to the extent the act‘s prohibition of driving “under the influence” of
The lead opinion‘s denigration of the reliance interests involved in applying Derror is similarly misguided. Some justices in the majority attach significance to the doctrine of “legislative silence” or “acquiescence.”32 But here, the lead opinion‘s position appears to be inconsistent with this professed adherence to the doctrine that “[i]f a legislature reenacts a statute without modifying a high court‘s practical construction of that statute, that construction is implicitly adopted.”33 It is noteworthy that the Legislature has reenacted
III. AS THERE WAS ACTUAL THC IN DEFENDANT‘S BLOOD, THERE IS NO NEED TO REACH THE QUESTION WHETHER DERIVATIVES ARE WITHIN THE AMBIT OF THE STATUTE
Finally, and perhaps most important, the decision to overrule Derror is simply unnecessary in the instant case. Not only did defendant‘s blood contain the derivative 11-carboxy-THC, it also contained THC itself. All members of this Court, including those in the majority, agree that having “any amount” of THC in a driver‘s bloodstream, however slight, is illegal under this statute. Therefore, in a case in which it is undisputed that defendant violated this statute by virtue of the presence of actual THC, it is unnecessary to review whether 11-carboxy-THC is a schedule 1 controlled substance. Consequently, the decision by a majority of justices to overrule Derror should be seen for what it is: an unnecessary and exceedingly aggressive act to kill a case with which the new majority of this Court disagrees.
IV. CONCLUSION
In enacting
CORRIGAN and MARKMAN, JJ., concurred with YOUNG, J.
Notes
(1) 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 is operating while intoxicated....
* * *(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 ....
* * *(8) 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,
(1) The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of [
(3) If the individual violates subsection (1) following an accident caused by that individual and the accident results in the death of another individual, the individual is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $10,000.00, or both. [
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.
MRE 401 provides:“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
MRE 403 provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Additionally, the Legislature has included “synthetic equivalents” of THC in schedule 1. SeeThe 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. [Id. at 327.21 USC 802(16) .]
We the new majority will get the ship off the shoals and back on course, and we will undo a great deal of the damage that the Republican-dominated court has done. Not only will we not neglect our duties, we will not sleep on the bench. [She said, Detroit Free Press, December 10, 2008, p 2A.]
I continue to adhere to my stated position that “[i]n the absence of a clear indication that the Legislature intended to either adopt or repudiate this Court‘s prior construction, there is no reason to subordinate our primary principle of construction—to ascertain the Legislature‘s intent by first examining the statute‘s language—to the reenactment rule.” Hawkins, 468 Mich at 508-509 (majority opinion).