STATE OF MI CHIGAN. Defendant. MOTION. Before THE HONORABLE

Transcription

1 STATE OF MI CHIGAN IN THE 52-4 JUDICIAL DISTRICT COURT FOR THE COUNTY OF OAKLAND THE PEOPLE OF THE STATE OF MICH I GAN -vs- District Court No. District Court No. Defendant.! MOTION Before THE HONORABLE Troy, Michigan, Judge Tuesday, September 6, 2011 APPEARANCES: Neil Rockind P On behal f of the Defendant Meagan Doyle P72099 On behalf of the Plaintiff Tamera J. Briggs - CER 7009 Official Court Recorder

2 TABLE OF CONTENTS WITNESSES: PAGE None offered w 0.. <( ::IE 0 g a: w 2

3 52-4 Distri ct Court 2 Troy, Michi gan 3 Tuesday, Sept ember 6, (On or a bou t 10:50 a. m., i n open Court 6 LAW CLERK: Calling our next case. The People 7 ve rsus. The case n umbe r s a r e a nd 8. 9 MS. DOYLE: Assistant prosecutor Meagan Doyle on 10 b e half of the People. I I MR. ROCKIND: Ne il Rockind on behalf of 12, your Honor. 13 THE COURT: Good afternoon. 14 MR. ROCKIND: I s hould say e x - assi stant 15 p r osecutor. 16 THE COURT: Yo u --al l right. Okay. 17 I' ve, I ' ve read t his t o the poi nt of my eyeballs 18 fal ling out of my head, so-- 19 MR. ROCKIND: It ' s a lot o f reading, a l ot of 20 reading. 21 THE COURT : Do yo u guys have a ny additiona l 22 argument y ou' d like to give? 23 MS. DOYLE : No, yo u r Ho nor. 24 MR. ROCKIND: No. Judge, I, I just want t o--i 25 know we gave the Court a lot to, a lot of mater ial a nd a lot t o 3

4 think about. If t he Court has a ny questions s h me 2 (phonetically I 1 m happy to answer them. 3 THE COURT : The -- I do have one question. 4 Although I know--it 1 s not--it may be relevant. The prosecution 5 put in their brief that your client has never had a marijuana 6 card. But I had some recollection of there being a bond issue 7 where you had indicated t hat your client now does have a 8 marijuana card. 9 MR. ROCKIND: Yes. The, the--my client has a-- 10 does hav e a medical marijuana card. Or at least had. He did II not have one at the time of the incident. 12 THE COURT: Okay. 13 MR. ROCKIND: So--I mean, important ly if that 1 s 14 the distinction that 1 s important f or the Court, he has since 15 the date--well I s hould say, prior to the date that the charges 16 in this case were issued. 17 So those are two different dates. There 1 s an 18 arrest date. And then a, a rel ease. And t hen subsequently 19 after that sever al months l a t er he was ultimately charged. 20 Between that t ime--by the time he was charged in 2 1 the case he actually had been approved for a medical marijuana. 22 THE COURT: All right. Like I said-- 23 MR. ROCKIND: I don 1 t know if that changes 24 anything for the Court 1 s--in the Court 1 s mind, but THE COURT: Well, to be honest with you, I 4

5 didn't look at tha t at all. So no. That doesn ' t. 2 But obviously if he'd had one at the t i me I 3 don't think the equal protection argument would be--have been 4 made by you. 5 MR. ROCKIND : Correct. 6 THE COURT: So, that 's why I, I ki nd of came up 7 with my assumption that he had gotten one, 'cause you had 8 indicat e d on the record earlier t hat he had gotten one. Bu t 9 that he must not o f had it when he was arrest e d. 10 MR. ROCKIND: Correct. II THE COURT: Okay. All right. I ' m just gonna 12 r ead my thoughts into the record and then I'm gonna ask for 13 additional briefings. 14 Defendant is charged with dri ving with any 15 a mount of marijuana in his system contrary to MCL (8. 16 The defendant is charged under the theory that 17 the prosecution need not show a ny impairmen t of the defendant 18 du e to the consumption of marijuana, simply t hat marijuana was 19 in his system when he drove a motor vehicle. Pursuant to MCL (8. 21 MCL (1 (c. The l egislature has appo i nt 22 t he Board of Pharmacy to classify substances agor--according to 23 t h e substances potential for abuse and its acceptable use for 24 medical practices. 25 Marijuana has long been c lassified as a s u-- 5

6 2 schedule 1 substance by the Board of Pharmacy. The controlled substances listed in schedule 1 have been found by the Michigan 3 Board of Pharmacy to have quote, a high level for abuse" and 4 to have ''no acceptable--no accepted medical use 1n 5 the treatment in the United States ". MCL This means that the legislature through the 7 Michigan Board of Pharmacy has found that marijuana quote, 8 ''has high potential for abuse and has no accepted 9 medical use in the treatment of the Unites States", 10 end quote. II The Michigan Medical Marijuana Act, hereinafter 12 MMMA, MCL , stands 1n sharp contrast tom--excuse me-- 13 to the MCL (8} and MCL THE MMMA states, quote ''modern medical research 15 has discovered benefits--beneficial uses for 16 marijuana in treating or alleviating the pain, nausea 17 and other symptoms associated with a variety of 18 medical conditi ons". Through the MMMA, the Michigan 19 legislature acknowledge the existence of medical use of 20 marijuana. 2 1 These statutes are in direct conflict with one 22 another because they are mutually exclusive as both cannot be 23 true at the same time. Either marijuana is a scheduled 1 24 substance because it has, has no accepti, acceptable medical 25 purpose (MCL }. Or there are beneficial uses for 6

7 marijuana in treating or alleviating the symptoms associated with a variety of debilitating medical conditions (MCL The MMMA became effective December 4, 2008, after MCL (8 and MCL MCL (8 prohibits driving a motor vehicle 7 with any amount of marijuana in the driver ' s system. While MCL I I (b (4 of the MMMA, proscribes a driver from driving a motor vehicle, quote ''while under the influence of marijuana ''. MCL (b (4 became effective after December 4--excuse, excuse me --became effective December 4, 2008, after MCL (8. The prosecution of defendant under MCL (8 and MCL , requires thi s Court to ignore the more recently enacted MMMA with its explicit declaration that marijuana has accepted medical purposes. This Court is not free to ignore or render nugatory any Act of the Michigan legisl ature. People vs. Compassionate Apothecary, Michigan Court of Appeals number , published August 24, 2011, at page 14, citing A, A-P-S-E-Y vs. Memorial Hospital, 477 Mich 120, 131, (2007. The Michigan Marijuana Act section (b (4 prohibits driving under the influence of 25 marijuana. Not driving with any amount of mari juana. 7

8 The Michigan Legislature is presumed to have 2 known that section (b (4 is in direct conflict with 3 the strict liability of MCL (8. The Michigan Medical 4 Marijuana Act ' s MCL (e states, quote ''other acts 5 inconsistent with this act do not apply to the 6 medical use of marijuana". That a court must give 7 effect to every provision of a statute, if possible, is well 8 established. 9 Again, Compassionate Apothecary at 11, citing 10 Wo lvering Power Supply, Inc. vs. Department of Environmental II Quality, 285 Mich App 585, 558 ( Based on t he expl icit inconsistencies of MCL (8, paren (improsing (phonetically, imposing strict 14 liability for driving with mari juana in a driver's body and 15 MCL (4 (criminalizing driving while under the 16 influence of marijuana, and MCL (8, MCL , MCL (2 (a, this Court finds that MCL (8, as it 18 relates to marijuana is repealed by implication by section MCL (2 and MCL (4 enacted--i have November, , but that ' s incorrect. I t ' s December, This Court a lso finds that the Michigan Medi--.. <( ::! 0 z 0 CD a: 22 Medicaluana (phonetically Act ' s explicit language finding that 23 marijuana has acceptab, accepted medical uses is explicitly 24 inconsistent with the definition of a Schedule 1 substance 25 found in MCL and the classification of marijuana as a 8

9 Schedule 1 substance. 2 Therefore, this Court also f inds that MCL as it relates to marijuana, is repealed by implication 4 by the Michigan Medical Marijuana Act. 5 When the intention of the legislature is c l ear, 6 repeal by implication may be accomplished by the enactment of a 7 subsequent act inconsistent with the former act. 8 Where those (phonetically other two cases? Oh. 9 It 1 s a 1957 case. 10 More recently, Allen vs. Bloomfield Hills School II District, 281 Mich App 49 (2008. A Michigan Court of Appeals 12 decision finds that, ''Courts must give effect to every word, 13 phrase and clause in a statute and avoid an 14 interpretation that renders nugatory or surperfalis 15 (phonetically any part of the statute Any contrary finding in the opinion of this 17 Court would be to render a substantial portion of the MMMA 1 s 18 language nugatory. 19 Based on that I believe the prosecution did 20 not--based on my finding that the--what I just read into the 2 1 record. You didn 1 t do any briefing relative to the equal 22 protection 'cause you just banked on my agreeing with the first 23 part of your analysis; am I right? 24 MS. DOYLE:! 1 m sorry, your Honor. Can you 25 state that again? 9

10 2 THE COURT: In your brief, you simply disagreed with defense counsel 1 s assertion that someone who drives while 3 l egally prescribed marijuana must be prosecuted not under 4 strict liability, but under the influence. 5 You did not brief the equal protection. 6 MS. DOYLE: Your Honor, it 1 s, i t 1 s news to the 7 People that the defendant even had a medical marijuana card. 8 He d id not have one on the date in question. 9 THE COURT : Right. 10 In--what would you--what would your response be? I I MR. ROCKIND: I I I acknowledge that a, already. 12 THE COURT: Right. 13 MR. ROCKIND : I ack nowledge-- 14 THE COURT: I think what he 1 s saying is-- I S MR. ROCKI ND: --that the lack of a me, a 16 medical-- 17 THE COURT: If--well--as I understood his 18 argument in his brief. If his client had had a Medical 19 Marij ua na Act, I believe the equal protection argument would 20 not have been necessary. 21 MR. ROCKIND: I, I don 1 t think t ha t I cou l d of-- 22 whether I could of gade (phonetically or not I certainly 23 didn 1 t r esearch whether I coul d o f made it or not. But I cer-- 24 I would of argued that it would have been an inappropriate 25 argument if he had a card, because I would of argued what the 10

11 Court just said-- 2 THE COURT: Right. Well--yeah--based on if he 3 had had a card on the day he was arrested-- 4 MR. ROCKIND: Equal protection would not have 5 been the issue-- 6 THE COURT: Right-- 7 MR. ROCKIND: --it would of been--my issue would 8 of been whether 625(8 was appli cable or whether it was 9 repealed by impli cation by t he-- 10 THE COURT: Right. So I have just Ruled that as II it rel ates to anyone who has a medical marijuana card on the 12 date of the arrest, (8 is not appropriate. 13 So then he gets to the equal prot ecti on argument 14 because his client does not have a card. 15 MS. DOYLE: Right. 16 So, your Honor, because t he defendant did not 17 have a card on the date of the incident, you ' re aski ng t hat 18 there be a more, more thorough briefing on the equal protection 19 issue? I s that correct? 20 THE COURT: I believe it's now the only thing 21 that ' s relevant. 22 MS. DOYLE: Okay. 23 THE COURT: Based on my Ruling. 24 MS. DOYLE: Okay. Can I ask for additional time 25 to brief that issue-- II

12 2 THE COURT: You may. And while I would not norma lly give additional time, under the circumstances i t is a 3 constitutional q uesti on, a nd I wan t to ma ke the right d eci sion. 4 So I will grant additional t ime to the Peopl e to respond to t he 5 equal protection argume n t portion of the defendant ' s brief. 6 I s t wo weeks enough t i me? 7 MS. DOYLE : No, you r Honor. Given the fact that 8 we have two jury trials next week, I'm asking for a minimum of 9 t hree weeks. 10 THE COURT : Do you have any objection to t hat? II MR. ROCKIND : No. 12 THE COURT : All r i ght. And then I 'm gonna g i ve 13 yo u a week or two weeks to respond to anythi ng in her brief 14 s houl d you wish to do so. But it ' s not required. 15 MR. ROCKIND : I'll, I'll take two weeks. But 16 given the--given what I ' ve already read and our brief and how I 17 think we a ddressed the issue i t may not be necessary. And 18 I ' l l, I ' l l l et your-- 19 THE COURT: All right. 20 MR. ROCKIND : --your, your, your, your clerk 2 1 know whether we i n tend to file a reply or not-- 22 THE COURT : Al l r i ght. I'm gonna set it for SlX 23 weeks from today. 24 MS. DOYLE : (Inaudi b l e. 25 THE COURT: Gi ve t h e prosecution three weeks, 12

13 give the defense two weeks and then me one week to read 2 everything. 3 If you ' re not gonna f ile then we can move thi s 4 up by two weeks. 5 MR. ROCKIND : Okay. 6 THE COURT: So six weeks from today would 7 be... well that puts us smack dab in the middle of a jury 8 selection so. We're gonna set this for the 11th. Which is 1n 9 five weeks. So I will give--if you can not do your response in 10 one week just let us know and we ' ll move it to the 25-- II THE LAW CLERK: (Inaudible. 12 THE COURT : It does? 13 THE LAW CLERK: Yes. 14 THE COURT : In the morning? Even though it ' s 15 jury week-- 16 THE LAW CLERK : (Inaudible. Right. 17 THE COURT : Okay. We can do this in the 18 morning. It will be quick, but l et ' s do it a t e l e v e n so not to 19 waste everybody ' s time. 20 MR. ROCKIND : October 18th? 2 1 THE LAW CLERK : Yes. 22 THE COURT : Correct. 23 MR. ROCKIND : Okay. 24 THE COURT: At eleven. 25 MR. ROCKIND : Thank you. 13

14 THE COURT: You're welcome. 2 MS. DOYLE: Thank you, your Honor. 3 THE COURT: You ' r e we lcome. 4 (Proceedings conclude d II g.., g, :?! 19 lf 0 <( " z w Q_

15 STATE OF MICHIGAN COUNTY OF OAKLAND I,, Certified Court Recorder for t he 52-4 District Court, Troy, Michigan, do hereby certify that this transcript, consisting of 15 pages, is a complete, true, and corr ect transcript of the proceedings and testimony taken in this case before t he HONORABLE, on Tuesday, September 6, Dated: J_D ' J \_\ 520 West Big Beaver Road Troy, Mic higan