STATE OF MICHIGAN

IN THE DISTRICT COURT FOR THE COUNTY OF BENZIE

THE PEOPLE OF THE STATE OF MICHIGAN

Plaintiff

vs.

OLAF SAGNER JOHNSON

Defendant

File No. 14-235-SM

BRIEF IN SUPPORT OF MOTION TO DISMISS

STATEMENT OF FACTS

On July 15, 2014 defendant was the operator of a motor vehicle on US-31 near

Love Road in Benzonia Township, Benzie County, Michigan. He was stopped by

Michigan State Police officers Kelley and Roy after they noticed the vehicle was missing

the entire passenger side tail light. Trooper Kelley states, in his report that, upon making

contact with defendant, he detected the odor of marihuana. He asked defendant if he was

a medical marihuana card holder and defendant told him he was. Defendant further told

him that he had some medical marihuana in the trunk of the vehicle.

The troopers conducted a search of the vehicle due to the odor of marihuana they

had detected. In the course of the search they found four suspected marihuana roaches

wrapped in brown papers in the backseat ashtray on the driver's side the vehicle, a

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small plastic baggie containing suspected marihuana on the driver's side floorboard near

the center of the vehicle, and two small haggles containing suspected marihuana in the

trunk of the vehicle. The two baggies found in the trunk were not enclosed in a case.

The items found were taken into evidence and placed into three (3) Michigan State Police

heat-sealed evidence bags. The total weight, including the heat-sealed evidence bags,

was 85 grams. Each heat-sealed evidence bag weighs 22 grams_ Therefore, the amount

of usable marihuana found in defendant's vehicle is not greater than 19 grams.

APPLICABLE LAW AND ARGUMENT

MCL 750.474(1) states that:

A person shall not transport or possess usable marihuana as defined in

section 26423 of the public health codc...in or upon a motor

vehicle...unless the usable marihuana is I or more of the following:

(a) Enclosed in a case that is carried in the trunk of the vehicle.

(b) Enclosed in a case that is not readily accessible from the interior of the

vehicle in which the person is traveling does not have a trunk.

A. MCL 750.474 is superseded by MCL 333.26421 et. seq. (MMMA)

The Michigan Supreme Court, in People v Koon, 494 Mich 1, 932 NW2d

724 (2013), affirmed the language of MCL 333.26427(e) by stating "[w]hen the

MMMA conflicts with another statute, the MMMA provides that NH 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".

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(1) Is in possession of a registry identification card; and

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The language of MCL 750.474 clearly conflicts with the MMMA. As a

consequence of this conflict, MCL 750.474 is superseded by the MMMA and does

not apply to the medical use of marihuana. "Medical use" is defined in MCL

333.26423(f). Among the list of protected activities in this definition is "possession"

and "transportation".

The defendant was not in possession of an amount of marihuana that exceeded the

legal amount and was otherwise in compliance with the MMMA and its provisions.

Therefore, as a matter of law, defendant is entitled to the protections of the MMMA,

which protections dictate that this case must be dismissed.

B. Defendant is immune from prosecution and arrest because he fully complied

with the requirements of MCL 333.26424.

MCL 333.26424 states, in relevant part, that:

(a) A qualifying patient who has been issued and possesses a registry

identification card shall not be subject to arrest, prosecution, or penalty in any

manner, or denied any right or privilege...provided that the qualifying patient

possesses an amount of marihuana that does not exceed 2.5 ounces of usable

marihuana...

(d) There shall be a presumption that a qualifying patient or primary

caregiver is engaged in the medical use of marihuana in accordance with this

act if the qualifying patient or primary caregiver:

(2) Is in possession of an amount of marihuana that does not exceed the

amount allowed under this act. The presumption may be rebutted by evidence

that conduct related to marihuana was not for the purpose of alleviating the

qualifying patient's debilitating medical condition, in accordance with this act.

The facts of this case show that defendant possesses a medical marihuana registry

identification card and was not in possession of an amount of marihuana that exceeded

the amount a patient is allowed to possess under the MMMA. This creates immunity

from prosecution unless the presumption of medical use has been rebutted. People v

McQueen, 493 Mich 135, 828 NW2d 644 (2013). The instant case does not present any

facts to rebut the medical use presumption. Therefore, the presumption is the defendant

was engaged in the medical use of marihuana in accordance with the MMMA.

The charge against defendant must be dismissed because a "qualifying patient

who has been issued and possesses a registry identification card shall not be subject to

arrest, prosecution or penalty in any manner. _.provided that the qualifying patient

possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana."

See MCL 333.26424(a). The clear language of the MMMA provides immunity from

prosecution as long as the two conditions of MCL 333.26424(a) are satisfied. The

defendant is being prosecuted for violating MCL 750.474. Therefore, as long as the

defendant satisfies MCL 333.26424(a) he cannot be prosecuted.

C. Defendant is entitled to dismissal under the affirmative defense of MCL

333.26428. FILED

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In addition to the plain and unambiguous immunities defendant is entitled to

under the MMMA, defendant is entitled to assert a defense under MCL

333.26428. The Michigan Supreme Court, in People v Kolanek, 491 Mich 382,

817 NW2d 528 (2012), stated that a patient may assert the medical purpose for

using marihuana as a defense to "any prosecution involving marihuana". Section

8(b) of the MMMA provides that a person "may assert [this defense] in a motion

to dismiss, and the charges shall be dismissed following an evidentiary hearing

where the person shows the elements listed in subsection (1)". People v

Kolanek, supra. See also MCL 333.26428. Defendant is therefore entitled to an

evidentiary hearing in which the case will be dismissed if he satisfies the three

elements enumerated within MCL 333.26428(a) (1)-(3).

It is not in dispute that at the time of the incident defendant did not possess

an amount of medical marihuana that was more than reasonably necessary for the

purpose of his medical use.

D. MCL 750.474 is unconstitutional.

Article IV, Section 25 of the Michigan Constitution provides that "no law

shall be revised, altered, or amended by reference to its title only. The section or

sections of the act altered or amended shall be reenacted and published at length."

It is evident that MCL 750.474 represents an effort to amend, alter or revise the

Michigan Medical Marihuana Act. By choosing to amend the penal code instead

of the Michigan Medical Marihuana Act, the Michigan legislature violated the

constitution. This statute is therefore unconstitutional.

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Section 7 of the Michigan Medical Marihuana Act, being 333.26427(e)

states that "all other acts and parts of acts inconsistent (emphasis added) with this

act do not apply to the medical use of marihuana as provided by this act" MCL

750.474 was enacted after the MMMA and was intended to criminalize certain

methods of transportation of legal marihuana. MCL 333.7106 provides, under

subsection (e), that "medical use" means the acquisition, possession,...transfer, or

transportation of marihuana....The MMMA provides that you can transport

marihuana without restrictions. MCL 750.474 is therefore inconsistent with the

MMMA. Further, it amends the MMMA by reference. For these two reasons, the

statute is unconstitutional.

E. Other Michigan District Court Judges have ruled that MCL 750.474 is

unconstitutional.

The issues presented in the instant case have been ruled upon by other

Michigan District Courts. In the case of People v Nicholas Edward Barber, File No.

14-0098-SM, the Honorable Thomas P. Boyd, District Judge, granted defendant's motion

to dismiss on the following grounds: (1) MCL 750.474 is inconsistent with the Medical

Marihuana Act as it limits transportation, a right granted by the Medical Marihuana Act,

(2) a patient may assert the medical purpose for using marihuana as a defense to any

prosecution involving marihuana, and the attempt by MCL 750.474 to nullify that

language is ineffective, and (3) MCL 750.474 is unconstitutional because it represents an

effort to amend, alter or revise the Medical Marihuana Act by reference, contrary to

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Article IV, Section 25 of the Michigan Constitution. A transcript of the hearing on

Motion to Dismiss is attached hereto and made a part hereof as Exhibit A.

The court in People v David Earle Porter, Crawford County District Court,

Case No. 14-10322-SM-1, made the following findings: (1) MCL 750.474 is a direct

modification of the Michigan Medical Marihuana Act and, since the legislature did not do

so under the MMMA itself by re-enacting and re-publishing the act, it is unconstitutional.

The court stated that "here, the amendments to the penal code attempt to modify the

Michigan Medical Marihuana Act by restricting actions specifically allowed for under the

MMMA. This attempt to revise and later is done under the auspices of the penal code

rather than re-publishing of the MMMA. Such an approach is unconstitutional." , and (2)

"even if MCL 750.474 were not unconstitutional the Improper Transportation statute

would still be inconsistent with the MMMA, and MMMA would supersede MCL

750.474". A copy of the Porter court's opinion is attached hereto and made a part hereof

as Exhibit B.

The court in People v Molly Lynn White, Case No. 14-SM-000163, in Delta

County, also found that MCL 750.474 is inconsistent with the MMMA and that its

enactment was in violation of the Michigan constitution. The court further specifically

adopted the reasoning of Judge Boyd in the case of People v Nicholas Edward Barber. A

copy of the court's written opinion is attached hereto and made a part hereof as Exhibit

C.

Defendant is aware that the three district court cases cited herein is not binding on

this court. However, defendant believes that the findings, analyses and rulings contained

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in their opinions should be adopted by this court as they represent a correct application of

the law.

CONCLUSION

MCL 750.474 is superseded by MCL 333.26427(c). Defendant has

demonstrated that he is immune from prosecution under MCL 333.26424. He is

therefore entitled to a hearing in which to assert a defense under MCL 333.26428.

Because MCL 750.474 attempts to revise, alter or amend the MMMA by

reference, it is unconstitutional. For these reasons, the court should dismiss the

charge against defendant.

WHEREFORE, defendant requests that this court dismiss the charges

against him or, in the alternative, grant an evidentiary hearing as required under

MCL 333.26428.

Dated: August 25, 2014.

Attorney for Defendant

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