In 2007 Michigan voters passed into law the Medical Marijuana Act (MMA). Since this time the law has been subject to various interpretations, including that it should be applied retroactively. This would mean that a person who obtains a MMA permit after a marijuana offense is committed would still be protected by the law.
Said differently, the question is this: if a driver is pulled over today and arrested for operating under the influence of marijuana, and then tomorrow obtains a MMA prescription and certificate, can they still be prosecuted for OWI? Until a new Michigan Court of Appeals case came down, many people, including many judges, believed the answer was “yes.”
The new case is People v Campbell No 291345 7-13-10. In this case Defendant was charged with manufacture of marijuana, MCL 333.7401(2)(d)(iii), possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), possession of a firearm during the commission of a felony (two counts), MCL 750.227b, and misdemeanor possession of marijuana, MCL 333.7403(2)(d).
The sole issue on appeal was whether the MMA should be retroactively applied. The court found that the MMA was not to be applied retroactively. Boiled down to its simplest terms, the court found that the general rule was that criminal laws apply prospectively, meaning from the day they become law forward. There was nothing in the law that suggested that the MMA should be different, and for this reason the court found that the MMA does not apply retroactively.
What this means is that if you are arrested in Michigan for OWI based on marijuana intoxication, getting a certificate after the arrest probably won’t help. “Probably” because Campbell is unpublished, meaning that such cases may be cited but are not “precedential.”
If you are arrested in Michigan for OWI, and the drug in question is marijuana, you should immediately hire a lawyer familiar with the MMA and recent case law.