People of Michigan v. Michael Dean Dupre

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

December 17, 2020

Plaintiff-Appellee, 9:10 a.m.

v No. 350386

Kent Circuit Court

MICHAEL DEAN DUPRE, LC No. 18-007432-FH

Defendant-Appellant.

Before: RONAYNE KRAUSE , P.J., and MARKEY and BORRELLO, JJ.

BORRELLO, J.

Defendant, Michael Dean Dupre, appeals by leave granted1 following a conditional no-

contest plea conviction of operating while visibly impaired (OWVI), MCL 257.625(3). On appeal,

defendant argues that the trial court erred when it determined that the Michigan Medical Marihuana

Act (MMMA), MCL 333.26421 et seq., permits a defendant to be convicted of OWVI because the

plain language of the MMMA does not allow for such a conviction. For the reasons set forth in

this opinion, we affirm.

I. BACKGROUND

Defendant was charged with one count of operating while intoxicated (OWI),

MCL 257.625(1). In advance of trial, defendant moved for special jury instructions, arguing that

our Supreme Court has held that medical marijuana2 card holders are allowed to drive while

1

We granted defendant’s application for leave to appeal, limiting the issues on appeal to the issues

raised in the application and supporting brief. See People v Dupree, unpublished order of the

Court of Appeals, entered October 9, 2019 (Docket No. 350386).

2

Following our common practice, we will use the spelling “marijuana” unless directly quoting a

statute. See Braska v Challenge Mfg. Co., 307 Mich App 340, 365 n 1; 837 NW2d 289 (2014).

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internally possessing marijuana provided the driver is not “under the influence.”3 Defendant

argued that, under the MMMA, a medical marijuana card holder cannot be convicted of OWVI if

marijuana was the substance impairing him or her. Rather, the MMMA required the prosecution

to prove that defendant was under the influence of marijuana when he was driving, a higher

standard than visibly impaired. The trial court disagreed, and defendant entered a conditional no-

contest plea to OWVI. This Court granted leave to appeal on the issue whether the MMMA allows

a registered patient to be convicted of OWVI.

II. ANALYSIS

This case involves the interplay between the MMMA and Michigan’s motor vehicle code,

MCL 257.1 et seq. Accordingly, this appeal involves issues of statutory interpretation, which are

questions of law that we review de novo. Braska v Challenge Mfg. Co., 307 Mich App 340, 352;

861 NW2d 289 (2014).

The primary goal of statutory interpretation is to ascertain and give effect to the

Legislature’s intent as expressed by the language of the statute. If the statutory

language is clear and unambiguous, judicial construction is neither required nor

permitted; the statute must be enforced as written. Regarding voter-initiated

statutes such as the MMMA, the intent of the electors governs the interpretation of

the statute. The statute’s plain language is the most reliable evidence of the

electors’ intent. [Id. (quotation marks and citations omitted).]

In People v Kolanek, 491 Mich 382, 393-394; 817 NW2d 528 (2012), our Supreme Court

recounted the implementation of the MMMA:

The MMMA was proposed in a citizen’s initiative petition, was elector-

approved in November 2008, and became effective December 4, 2008. The

purpose of the MMMA is to allow a limited class of individuals the medical use of

marijuana, and the act declares this purpose to be an “effort for the health and

welfare of [Michigan] citizens.” To meet this end, the MMMA defines the

parameters of legal medical-marijuana use, promulgates a scheme for regulating

registered patient use and administering the act, and provides for an affirmative

defense, as well as penalties for violating the MMMA. [Quoting

MCL 333.26422(c); alteration in original; first citation omitted.]

The Kolanek Court explained that, when reviewing the MMMA, the “goal is to ascertain

and give effect to the intent of the electorate, rather than the Legislature, as reflected in the

language of the law itself.” Id. at 397.

The Kolanek Court set forth basic principles behind sections of the MMMA. For example,

Section 4 of the MMMA allows a qualifying patient who has been issued or possesses a registry

3

MCL 333.26427(b)(4) states that the MMMA “does not permit any person to . . . [o]perate,

navigate, or be in actual physical control of any motor vehicle . . . while under the influence of

marihuana.”

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identification card to use marijuana as a medical treatment. Id. at 394-396; see MCL 333.26424.

This section grants qualifying patients broad immunity from prosecution. Kolanek, 491 Mich

at 394-396. Section 7 of the MMMA on the other hand, prohibits specific acts that negate

immunity. Id. at 399-400; see MCL 333.26427. More specifically, and as relevant herein, § 7

does not permit any person to “ ‘[o]perate, navigate, or in be in actual physical control of any

motor vehicle . . . while under the influence of marihuana.’ ” Kolanek, 491 Mich at 400, quoting

MCL 333.26427(b)(4).4 As this Court has previously observed,

The MMMA also contains a broadly worded provision to ensure that

qualifying individuals who adhere to the terms of the MMMA do not suffer

penalties for their use of marijuana for medicinal purposes. Specifically, MCL

333.26427(e) provides “[a]ll 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.” Thus, to

the extent another law would penalize an individual for using medical marijuana in

accordance with the MMMA, that law is superseded by the MMMA. [Braska, 307

Mich App at 355, citing People v Koon, 494 Mich 1, 8-9; 832 NW2d 724 (2013).]

Our state’s motor vehicle code prohibits individuals from operating motor vehicles under

certain circumstances. The OWI statute, MCL 257.625(1), prohibits a person from operating a

motor vehicle “if the person is operating while intoxicated.” The OWVI statute, MCL 257.625(3),

prohibits a person from operating a motor vehicle when, “due to the consumption of alcoholic

liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor,

a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle

is visibly impaired.” To obtain a conviction of OWVI, “the prosecution must present evidence to

establish beyond a reasonable doubt that consumption of [a listed substance] weakened or reduced

the defendant’s ability to drive such that the defendant drove with less ability than would an

ordinary, careful, and prudent driver.” People v Mikulen, 324 Mich App 14, 22; 919 NW2d 454

(2018). OWVI is a lesser included offense of OWI. See People v Lambert, 395 Mich 296, 305;

235 NW2d 338 (1975).

The Lambert Court provided sample jury instructions that trial courts could give to explain

the difference between OWI and OWVI:

The distinction between the crime of driving under the influence of

intoxicating liquor and the lesser included offense of driving while ability is visibly

impaired is the degree of intoxication which the people must prove.

To prove driving under the influence of intoxicating liquor, the people must

prove that defendant’s ability to drive was substantially and materially affected by

consumption of intoxicating liquor.

4

In addition to the immunity granted to qualifying patients in § 4, § 8 of the MMMA states that a

patient “ ’may assert the medical purpose for using marihuana as a defense to any prosecution

involving marihuana,’ ” subject to the limitations in § 7. Kolanek, 491 Mich at 396-397, quoting

MCL 333.26428(a).

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To prove driving while ability is visibly impaired, the people must prove

that defendant’s ability to drive was so weakened or reduced by consumption of

intoxicating liquor that defendant drove with less ability than would an ordinary,

careful and prudent driver. Such weakening or reduction of ability to drive must

be visible to an ordinary, observant person. [Id. (quotation marks omitted); see also

Mikulen, 324 Mich App at 22-23.]

According to the Mikulen Court, the Legislature created the offense of OWVI, “to address those

situations in which a defendant’s level of intoxication and resulting impairment does not suffice

to establish OWI, yet the defendant still presents a danger to the public because his or her ability

to operate the vehicle is visibly impaired.” Mikulen, 324 Mich App at 22-23 (quotation marks

omitted).

In Koon, our Supreme Court examined the interplay between the MMMA and our state’s

motor vehicle code. The defendant in Koon was charged with operating a motor vehicle with the

presence of a schedule 1 controlled substance—marijuana—in his body under MCL 257.625(8), a

zero-tolerance provision.5 Koon, 494 Mich at 3, 5. The defendant argued, however, that the

MMMA’s immunity provision prevented a registered patient’s prosecution unless the patient drove

“ ‘under the influence’ ” of marijuana. Id. at 4, quoting MCL 333.26427(b)(4). The defendant

additionally argued that “the MMMA resolves conflicts between all other acts and the MMMA by

exempting the medical use of marijuana from the application of any inconsistent act.” Koon, 494

Mich at 4.

The Koon Court held that the MMMA was “inconsistent with, and therefore supersedes,”

the zero-tolerance provision, MCL 257.625(8). Koon, 494 Mich at 8-9. As to the meaning of the

phrase “under the influence,” MCL 333.26427(b)(4), the Koon Court explained:

The MMMA, however, does not define what it means to be “under the

influence” of marijuana. While we need not set exact parameters of when a person

is “under the influence,” we conclude that it contemplates something more than

having any amount of marijuana in one’s system and requires some effect on the

person. Thus, taking the MMMA’s provisions together, the act’s protections extend

to a registered patient who internally possesses marijuana while operating a vehicle

unless the patient is under the influence of marijuana. In contrast, the Michigan

Vehicle Code’s zero-tolerance provision prohibits the operation of a motor vehicle

5

MCL 257.625(8) provides as follows:

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, or of a controlled

substance described in section 7214(a)(iv) of the public health code, 1978 PA 368,

MCL 333.7214.

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by a driver with an infinitesimal amount of marijuana in his or her system even if

the infinitesimal amount of marijuana has no influence on the driver.

The immunity from prosecution provided under the MMMA to a registered

patient who drives with indications of marijuana in his or her system but is not

otherwise under the influence of marijuana inescapably conflicts with the Michigan

Vehicle Code’s prohibition against a person driving with any amount of marijuana

in his or her system. When the MMMA conflicts with another statute, the MMMA

provides that “[a]ll other acts and parts of acts inconsistent with [the MMMA] do

not apply to the medical use of marihuana . . . .” Consequently, the Michigan

Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent

with the MMMA, does not apply to the medical use of marijuana. [Koon, 494 Mich

at 6-7 (citations omitted; alterations and ellipsis in original).]

In footnote 14, the Koon Court also explained that “under the influence” is a term of art used

throughout the motor vehicle code. Id. at 6 n 14. According to the Koon Court, Black Law’s

Dictionary defines “under the influence” as “deprived of clearness of mind and self-control

because of drugs or alcohol.” Id. (quotation marks omitted).6

Examination of this Court’s decision in Braska reveals a similar analytical framework

when considering the interplay between statutes and the MMMA. In Barska, this Court was tasked

with determining whether the MMMA precluded recovery of unemployment benefits by a person

testing positive for marijuana who also possessed a valid MMMA registration card. As was the

case in Koon, in Braska, the person claiming the benefit of the MMMA was simply found to have

marijuana in his system, which at the time constituted a disqualifying event under MCL

421.29(1)(m). This Court held, in the absence of any evidence that the claimant’s use of medical

marijuana was not in conformance with the terms of the MMMA, that the “denial of benefits

constituted an improper penalty for the medical use of marijuana under the MMMA… .” Braska,

307 Mich App at 365.

The Koon and Braska Courts made clear that in the absence of any evidence of an

impairment as a result of marijuana usage, the MMMA affords certain protections to defendants

in criminal cases and to claimants in unemployment cases. The decisions in Koon and Braska also

stand for the proposition that where a statute is inconsistent with the MMMA, the MMMA

supersedes that statute. Koon, 491 Mich at 8-9; Braska, 307 Mich App at 365. Here, defendant

argues that our Supreme Court’s holding in Koon only allows for an OWI conviction for persons

holding a valid MMMA registration card if they are shown to be “under the influence.” We do

not read Koon to compel such a holding.

In order to ascertain whether, in a prosecution for OWI based on the consumption of

marijuana, the state must prove that a defendant is “under the influence” of marijuana, as that

phrase is defined in the Michigan motor vehicle code, we determine whether that phrase means

6

Although the Koon Court cited the ninth edition of Black’s Law Dictionary, the eleventh edition

reflects an identical definition. Black’s Law Dictionary (11th ed).

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the same thing in § 7 of the MMMA, MCL 333.26427(b)(4), as it does in the OWI statute, MCL

257.625(1)(a).

We concur with the state’s argument that if the Legislature had enacted the MMMA,

defendant’s argument would have substantial merit because the Legislature would have

presumably known and adopted the motor vehicle code’s definition of “under the influence.” See

Koon, 494 Mich at 6 n 14 (explaining that “under the influence” is a term of art in the motor vehicle

code); see also People v Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002) (explaining that when

the Legislature borrows a term of art, “it presumably knows and adopts the cluster of ideas that

were attached to each borrowed word in the body of learning from which it was taken and the

meaning its use will convey to the judicial mind unless otherwise instructed.”). But the Legislature

did not approve the MMMA; the electorate did. Kolanek, 491 Mich at 397. Therefore, the

MMMA’s words must be interpreted through their ordinary and plain meaning as understood by

the electors. Id. As the disagreement about the phrase’s meaning among the parties in this case

indicates, the meaning of “under the influence” in the MMMA, MCL 333.26427(b)(4), as the

electors would have understood it, is ambiguous. See People v Hall, 499 Mich 446, 454; 884

NW2d 561 (2016) (explaining that “[a] statute is ambiguous if . . . the text is equally susceptible

to more than one meaning.”). Our Supreme Court alluded to this ambiguity in Koon when, as we

have previously quoted, it stated that “under the influence” means “something more than having

any amount of marijuana in one’s system . . . ,” but declined to adopt a definition. Koon, 494 Mich

at 6 (emphasis added). Therefore, further judicial construction is permitted. See Braska, 307 Mich

App at 352.

Although the Koon Court did not define what was specifically required to meet this higher

threshold, the Koon Court did state that “under the influence” “requires some effect on the person.”

Koon, 494 Mich at 6 (emphasis added). As previously stated, to be convicted of OWVI, the

prosecution must prove that a driver had “less ability than an ordinary, careful and prudent driver”

because he or she internally possessed a listed substance. Mikulen, 324 Mich App at 22. In accord

with our Supreme Court’s statement in Koon, here, in order to obtain a conviction of OWVI, the

state must demonstrate that defendant’s ingestion of marijuana had some effect on him such that

it lowered his ability to operate a vehicle. It is also important to note that the Koon Court did not

use the phrase “substantially and materially affected,” which would have mirrored the level of

impairment the state must prove to convict a defendant of OWI. See Koon, 494 Mich at 6; see

also Lambert, 395 Mich at 305. This choice of phrase—both explicit and implicit—appears telling

as to the Koon Court’s understanding of the MMMA and its interaction with the motor vehicle

code. When the Koon Court stated that “under the influence” requires “some effect on the driver,”

it choose not to apply the “substantially and materially” standard that would have indicated an

adoption within the MMMA of “under the influence” as defined in the OWI statute. Therefore,

although the Koon Court held that the plain text of the MMMA reflects the electors’ intent to allow

for registered patients to internally possess marijuana, it did not state—as defendant argues—that

the electors’ intended that a registered patient who internally possesses marijuana be immune from

prosecution of OWVI. See Koon, 494 Mich at 6-7.

To the contrary, our Supreme Court has appeared, in light of marijuana legalization, to treat

marijuana as if the electors intended that marijuana be treated similar to alcohol. See id. at 8. A

person can be convicted of OWVI for alcohol use. MCL 257.625(3). Similarly, the zero-tolerance

provision, which the Koon Court held does not apply to the medical use of marijuana, Koon, 494

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Mich at 7, does not apply to alcohol. See MCL 257.625(8). Hence, as previously alluded to,

defendant’s reading of the MMMA would require this Court to conclude that the electors’ intent

was to give registered patients internally possessing marijuana greater protections than average

citizens internally possessing alcohol. The language of the MMMA is devoid of such language,

and defendant presents no evidence that would lead us to conclude this was the electors’ intent.

Rather, our reading § 7 of the MMMA leads us to conclude that the limitations on immunity

appear to be situations in which public safety or public health intersect with a registered patient’s

use of medical marijuana. For example, registered patients cannot smoke marijuana in any public

place or on public transportation, MCL 333.26427(b)(3), and they cannot “[u]ndertake any task

under the influence of marihuana, when doing so would constitute negligence,”

MCL 333.26427(b)(1). Because a driver operates a vehicle while visibly impaired if they drive

with “less ability than would an ordinary, careful and prudent driver,” the driver puts public safety

at risk by doing so. Mikulen, 324 Mich App at 22. In short, a driver operating while visibly

impaired appears to do so negligently, in violation of MCL 333.26427(b)(1). Therefore, we

discern no intent within the MMMA to immunize the visibly impaired driver from prosecution.

This connection mirrors what this Court has held was the Legislature’s intent in passing

the OWVI statute: to allow the government to protect the public from a driver when his or her

“level of intoxication and resulting impairment does not suffice to establish OWI, yet the defendant

still presents a danger to the public because his or her ability to operate the vehicle is visibly

impaired.” Mikulen, 324 Mich App at 22-23 (quotation marks omitted; emphasis added).

Moreover, the MMMA itself declares that its purpose is “to be an ‘effort for the health and welfare

of [Michigan] citizens.’ ” Kolanek, 491 Mich at 394, quoting MCL 333.26422(c) (alteration in

original).7 MCL 333.26422(c) appears to be direct evidence that the electors’ intent in passing the

7

MCL 333.26422 provides as follows:

Findings.

The people of the State of Michigan find and declare that:

(a) Modern medical research, including as found by the National Academy

of Sciences’ Institute of Medicine in a March 1999 report, has discovered beneficial

uses for marihuana in treating or alleviating the pain, nausea, and other symptoms

associated with a variety of debilitating medical conditions.

(b) Data from the Federal Bureau of Investigation Uniform Crime Reports

and the Compendium of Federal Justice Statistics show that approximately 99 out

of every 100 marihuana arrests in the United States are made under state law, rather

than under federal law. Consequently, 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.

(c) Although federal law currently prohibits any use of marihuana except

under very limited circumstances, states are not required to enforce federal law or

prosecute people for engaging in activities prohibited by federal law. The laws of

Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico,

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MMMA was the improvement of health and safety of citizens, not just registered patients.

Defendant’s theory that the MMMA precludes registered patients from being convicted of OWVI

would put ordinary citizens and registered patients alike in danger because registered patients

would be allowed to drive with “less ability than the ordinary, careful, and prudent driver” without

fear of prosecution. See Mikulen, 324 Mich App at 22-23.

In sum, we conclude that the MMMA does not supersede the OWVI statute. “Under the

influence” as used in MCL 333.26427(b)(4) is not limited in meaning to how that phrase is

understood with regard to the OWI statute, MCL 257.625(1). A person may be considered “under

the influence” of marijuana if it can be shown that consumption of marijuana had “some effect on

the person,” Koon, 494 Mich at 6, such that it “weakened or reduced the defendant’s ability to

drive such that the defendant drove with less ability than would an ordinary, careful, and prudent

driver.” Mikulen, 324 Mich App at 22.

Because we affirm on these grounds, we need not address the prosecution’s alternative

grounds for affirmance.

Affirmed.

/s/ Stephen L. Borrello

/s/ Amy Ronayne Krause

/s/ Jane E. Markey

Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use

and cultivation of marihuana. Michigan joins in this effort for the health and welfare

of its citizens.

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