STATE OF MICHIGAN

IN THE 14A DISTRICT COURT FOR WASHTENAW COUNTY

STATE OF MICHIGAN
V
RAYMOND CUADRADO, DIST CT NO.: 131-0537
Defendant.
Brian Mackie (P25745)
Prosecuting Attorney/Washtenaw County
PO Box 8645
Ann Arbor, Michigan 48107
734-222-6620
Dennis Hayes (P14765)
Attorney for Defendant
120 N. 4th Ave
Ann Arbor, Michigan 48104
734-995-4646
DECISION
At a session of 14A1 District Court, Ann Arbor
Michigan, on the 23rd day of July 1014
PRESENT: The Honorable Richard E. Conlin, District Court Judge
OPINION OF THE COURT
This matter comes before the Court on Defendant's Motion to Dismiss. A hearing was
held on August 28, 2013. MCL 750.474 criminalizes the transportation of useable marihuana by
a patient or a caregiver (as defined by the Michigan Medical Marihuana Act) unless the useable
marihuana is enclosed in a case carried in the trunk or enclosed in a case that is not readily
accessible if there is no trunk. Defendant claims that MCL 750.474 is unconstitutional insofar as
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it conflicts with the Michigan Medical Marihuana Act, MCL 333.26421 et seq., which declares
that a validly licensed patient or caregiver is presumed to be properly engaged in the medical use
of marihuana and is therefore immune from prosecution for crimes related to marihuana.
For the reasons stated herein, the Court holds that MCL 750.474 is in violation of Art IV,
Section 25 of Michigan's Constitution, and this case should be dismissed.
Findings of Fact:
Defendant Cuadrado was pulled over in Pittsfield Township for having an illegal tint on
his windows, and for failing to stop at a stop sign. Officer Gilbee testified that he smelled
"fresh" "unburned" marihuana. Cuadrado admitted to Officer Gilbee that he had marihuana in
his possession and presented a valid medical marihuana ID card. When asked, Cuadrado
presented the marihuana, which he had been carrying in his pocket.
There is no dispute that
Cuadrado had a valid medical marihuana ID card;
Cuadrado had a valid patient caregiver license;
Cuadrado had 5 grams of usable marihuana in his pocket;
The usable marihuana was not in the trunk of the car or in a separate container but was in
his pocket.
Applicable law:
1. Michigan Constitution 1963, Art IV, sec 25 states -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 re-enacted and published at length."
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2. MICHIGAN MEDICAL MARIHUANA ACT
a. MCL 333.26423 (f) defines medical use to include transportation of marihuana.
b. MCL 333.26424 provides protections for the medical use of marihuana. Section (d)
states a presumption that a patient is engaged in the medical use of marihuana if he or
she is in possession of a registry card, and is in possession of an amount that does not
exceed the amount allowed under this act.
The presumption is rebuttable.
c. MCL 333.26428 provides that in any criminal prosecution the defendant may assert
the medical purpose for using marihuana as a defense, and the defense will be
presumed valid where the defendant is a patient or a patient's primary care giver.
d. MCL 333.26427(e) provides that "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."
3. MCL 750.474 provides that is a misdemeanor to transport usable marihuana in a motor
vehicle unless it is enclosed in a case carried in the trunk or enclosed in a case that is not
readily accessible if there is no trunk.
Case Law and Analysis:
People v Koon, 494 Mich 1 (2013), addressed the conflict between the Michigan Medical
Marihuana Act and the Michigan Vehicle Code. The Michigan Vehicle Code prohibits any
person from driving with any amount of a schedule 1 controlled substance, including marihuana,
in his or her system. The Michigan Medical Marihuana Act protects patients who are using
medical marihuana. The Court held that the Medical Marihuana Act allows a patient to drive
with marihuana in his or her system if he or she is not otherwise under the influence of
marihuana, despite the prohibition in the Michigan Vehicle Code. The Court held that "the
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MMMA resolves conflicts between all other acts and the Michigan Medical Marihuana Act by
exempting the medical use of marihuana from the application of any inconsistent act." Id. at 4.
The Court summarized the holding as "the MMMA is inconsistent with, and therefore
supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his
or her failure to act in accordance with the MMMA."
Applying Koon to this case, the Michigan Medical Marihuana Act clearly allows a patient
or a care giver to transport usable marihuana, only restricted by the amount allowed. The
Michigan Medical Marihuana Act clearly states that if another statute conflicts with the
Michigan Medical Marihuana Act, then the conflicting statute or act does not apply to the
medical use of marihuana. Use includes transportation.
The difference between Koon and the present case is that in Koon, the prohibition on
driving with marihuana in one's system existed before the Michigan Medical Marihuana Act, but
the statute in question here, MCL 750.474, was enacted after the Michigan Medical Marihuana
Act became effective. Therefore, the question arises as to whether the requirement of an
enclosed case is a valid amendment to the Michigan Medical Marihuana Act, such that
Defendant Cuadrado is no longer protected by the Michigan Medical Marihuana Act.
Footnote 22 in Koon addresses the Constitutional mandate that "no law shall be revised,
altered or amended by reference to its title only." The Koon Court assumed, without deciding,
that this provision applies to voter-initiated laws and stated "we conclude that the MMMA is an
`act complete in itself' and therefore, falls within a well-settled exception..." Citing Drake v
Mahaney, 13 Mich 481 (1865) and In re Constitutionally of 1972 PA 294, 389 Mich 441 (1973),
the Koon Court noted that if an Act is complete unto itself, then even if it affects provisions that
are not republished, it does not violate Const 1963, art 4 section 25.
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MCL 750.474 is not an -act complete in itself." It refers to the Michigan Medical
Marihuana Act by reference, but does not reenact or republish the Act. The Penal Code statute
requiring medical marihuana to be in an enclosed case when transported clearly amends the
Michigan Medical Marihuana Act, which places no restrictions (other than amount) on
transporting Marihuana for patients and caregivers, and provides a complete defense to criminal
prosecution. The statute does not reenact or republish the Michigan Medical Marihuana Act. In
Alan v Wayne County, 388 Mich 210 (1972), the Michigan Supreme Court specifically addresses
the question of -amendment by implication," where a statute has the effect of amending another
statute or act, but does not make reference to the statute or act so amended. But that is not the
case here; MCL 750.474 specifically mentions the Michigan Medical Marihuana Act, and
specifically amends the act by requiring usable marihuana to be transported in a closed container
that is in the trunk or otherwise inaccessible. This type of amendment is unconstitutional. See
Alan, supra.
Therefore, for the reasons stated herein, the Court concludes that MCL 750.474 is an
unconstitutional amendment to the Michigan Medical Marihuana Act, and is therefore invalid.
Defendant Cuadrado was properly transporting usable marihuana, as permitted by the Michigan
Medical Marihuana Act, and cannot be prosecuted for violating MCL 750.474.
The case against Cuadrado is dismissed.
It is so ordered.
BSI
Hon. Richard E. Conlin P25354
14A District Court Judge
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