BREAKING NEWS!!! Judge Rules that the Operating With Any Presence of Marijuana Statute is UNCONSTITUTIONAL!

Today, in a case handled by Neil Rockind, P.C., a district court judge has declared that the Operating with the Presence of Drugs (OWPD) statute, as it pertains to Marijuana, violates the Equal Protection Clause of the U.S. Constitution and as a result is unconstitutional.

The opinion is ground-breaking.

For longer than anyone can remember, Michigan prosecutors and city attorneys have been able to obtain convictions against people who are operating and driving vehicles safely, exhibiting no signs of impairment or intoxication but who, it is later discovered, have small amounts of marijuana in their system.

While the law used to require prosecutors to have to prove that a person was intoxicated or impaired in order to convict them of a crime, lab technicians and government experts complained that it was too difficult to offer an opinion on intoxication due to drugs because there was no set level similar to alcohol, e.g., .10 BAC or .08 BAC, where it was presumed that a person was intoxicated due to drugs.  They argued that the presence of any drugs in a person’s system should be sufficient.  As is often the case, the law was modified (in our opinion) to make it easier to convict people.  Out of this amendment was born the Operating with Presence of Drugs Statute (OWPD).  People became sitting ducks if they had any remnant of some controlled substance.

Along comes our client, “N.S.”, who had consulted with two (2) other prominent lawyers regarding a Operating with the Presence of Drugs charge before discharging them and hiring Neil Rockind and Neil Rockind, P.C.  On the date in question, our client was driving his car.  He was not driving erratically.  Nor was he driving dangerously.  He was stopped for a minor traffic infraction and when the officer began speaking with him, detected an “odor of marijuana.”  Our client, in an effort to be honest, admitted to using marijuana.  The officer arrested our client and subjected him to a blood test.  The test revealed the presence of a minimal amount of THC, i.e., marijuana.

At Neil Rockind, P.C., we never give up.  As the saying goes: You have to hate to lose, more than you like to win. We hate to lose so much that it is just not an option for us.  We just can’t accept a loss…and while a myriad of lawyers were telling our client or us to accept it, we didn’t.   Criminal Defense Attorneys Neil Rockind and Colin Daniels noticed a few things about the case and the law.

1) Our client was charged with Operating with the Presence of Drugs in his system;

2) The crime requires a Schedule 1 controlled substance;

3) The drug in question in our client’s case was THC or marijuana;

4)  Marijuana was classified as a Schedule 1 controlled substance;

5)  A Schedule 1 controlled substance is one that has no medicinal benefit;

6) The Michigan Medical Marijuana Act was passed in 2008 and enacted in 2009;

5) The Michigan Medical Marijuana Act states that marijuana has a medicinal benefit;

6) A medical marijuana patient would necessarily have marijuana in his sytem;

7) A medical marijuana patient cannot be charged with Operating with the Presence of Drugs in his system but would instead need to be impaired or intoxicated in order to be convicted;

8 ) A medical marijuana patient could have marijuana in his system but not be guilty of a crime absence proof of impairment while a regular citizen using the same amount of marijuana could have the same amount of marijuana in his system but would be guilty of crime just for having that marijuana in his system;

9) Therefore, medical marijuana patients and regular citizens are being treated differently for no reason.  Neither is less safe than the other, yet one could operate with marijuana in his system while the other could not not.

We concluded that this disparate treatment, i.e., inequality, was illegal. Accordingly, we filed an Equal Protection challenge to the Operating With the Presence of Drugs statute.  After we filed our motion to dismiss, the court gave the prosecution time to respond.  Interestingly, the prosecutor chose to focus on extraneous issues.  Upon our return to the courthouse, the Court ruled that the Michigan Medical Marijuana Act repealed (by implication) Michigan’s Schedule 1 Controlled Substance Act as it relates to marijuana/THC.   The judge looked at the prosecutor and offered her more time to respond.  We patiently waited as the prosecutor took additional time to deal with this landmark decision — Schedule 1 no longer applied to marijuana in Michigan.  After reading the prosecution’s responsive argument, we knew we were on to something — they chose not to address certain cases and facts again.

At a hearing today, Judge Kirsten Neilson-Hartig carefully and meticulously laid out her opinion and her rationale.  Her ruling revealed a deeper understanding and examination of the law, history, terms and phrases than many more experienced, “higher seniority” judges are capable on their best day.  Listening to the judge, it became clear that we had prevailed, but more so, it was clear that the Judge had issued a wonderfully reasoned and insightful opinion.

MCL 257.625(8), the offense that prohibits Operating With the Presence of Drugs is unconstitutional as it relates to marijuana.  Marijuana is not a Schedule 1 drug because it has medicinal benefit.  Both our client and a medical marijuana user use marijuana.  The former can be arrested for having marijuana in his system – even the smallest, miniscule amount would subject to him arrest and conviction.  The latter could use the marijuana and the prosecution would have to prove impairment in order convict.  The judge said (paraphrasing),

I find the Operating With the Presence of Drugs statute, MCL 257.625(8), unconstitutional and in violation of the Equal Protection Clause.  The case is dismissed.

This is a ground breaking ruling and it was obtained by Neil Rockind, P.C., Southfield, Michigan criminal defense attorneys Neil Rockind and Colin Daniels. Where most lawyers would have thrown in the towel, Rockind and Daniels pushed on.  A bad statute is no more and a good man, our client, is set free.

– Neil Rockind

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22 responses to “BREAKING NEWS!!! Judge Rules that the Operating With Any Presence of Marijuana Statute is UNCONSTITUTIONAL!

  1. Pingback: News for MI - Grasscity.com Forums

  2. Pingback: MN Medical Marijuana Coalition | Blog | BREAKING NEWS!!! Judge Rules that the Operating With Any Presence of Marijuana Statute is UNCONSTITUTIONAL!

  3. This is a ray of light in a very dark struggle…:)

  4. Hey this is a great story, nice work. Will this case serve as precedent in CO, we have these DUID “Heat is on” issues here, thanx ass clowns, and worst of all the campaign comes from MMIG a bunch of smoke and mirrors private agenda lobbyists kissing the prison industries ass.

    • Usually, if your state has proximity to Michigan geographically, then yes, perhaps you may then site a Michigan case in a Colorado Court. Check to see what Federal District Colorado shares with othe states. If Michigan resides in another Federal District than Colorado, perhaps the impact or weight will not be so great in a Colorado Court. There is no regional continuity between Michigan and Colorado geographically. Normally, the closer to the subject state the case or opinion was rendered, the greater the weight such a case or opinion will have. Stiil good to site, though, nevertheless!

  5. Congratulations on a job well done!

  6. Congratulations!
    We are trying that here in Canada for the whole Drugs act which is a healthcare act. The problem lies in the fact that the Government is trying to use a neutral Healthcare Act to shoehorn its prohibitionist policies on to the public based on a moral attitude towards some drugs. They have neglected to put before the parliament the most dangerous drugs: Alcohol and Tobacco. This would not mean prohibition as the minister is able to make any and all exemptions for any and all classes of users. There is actually no such thing in law as “illegal and legal” drugs. Drugs are inanimate objects and have no agency before the law. These are propaganda tools which have worked their way into even Supreme court decisions. (See my comments to Neil Boyd’s article Klaus Kaczor) They end up serving the oppressors by conflating the user with an illegal object and thereby denying them the same rights under common law as the users of the more dangerous drugs alcohol and tobacco. The Minister has no right not to give full effect to the CDSA by not putting these two dangerous to the public substances before parliament (there are no exemptions for historical, cultural or hard to do political reasons), actually it is their duty to do so. By conflating all use of these substances to misuse the peaceful responsible users of these substances are denied their basic equality before the law with users of A&T the producers of which enjoy a virtual monopoly.This is exactly the same as the Jim Crow laws in the 50’s. This is not a war against drugs it is a war against “some people.” I will be going to court to challenge this law on not charter but common law disparity of treatment issue. Please feel free to follow my blog “Off the Bell Curve”

  7. Excellent work on the logic and phrasing. wow! thank you for pushing this case. Out here in Washington State we’re facing an initiative to the legislator that “legalizes” cannabis w/ a 5ng/ml BC of active carboxyl. This makes patients a sitting duck as you state. Too many people don’t understand the words being told to them and prefer to have a limit so they know what they can or can’t do. I’ve stopped asking why people need a structure like this to move forward. Too many of them are desperate for “anything” resembling legalization they’ll sign onto a piece like I-502. At the Cannabis Defense Coalition cdc.coop, we’re creating a Stop Arresting bill for patients just to clean up the mess I-502 is going to create.

  8. >Where most lawyers would have thrown in the towel, Rockind and Daniels pushed on. A bad statute is no more and a good man, our client, is set free.

    Congratulations! Great job there, Neil and Colin. It is always encouraging to see the law being correctly and equally applied through ground-breaking judgements such as this and this is the way that we will realise the regulation of marijuana throughout the United States.

  9. Congrats on the gr8 news! Since Kirsten Neilson-Hartig is an Oakland County District Judge, I’m wondering if this’ll set a local precedent, or will this definitely be examined or appealed to a higher court? It would be great to see this as a 6th Circuit US Court of Appeals decision, even though MI is the only medical marijuana state in that circuit… Still huge, kudos, you deserve it! If they appeal, fight it all the way!

  10. Now, how do we fix this at a national level?

    • Tim, I don’t know if we have to wait for this to be appealed in order to do this, but the way to fix this at the national level is right here. Carl Olsen of Iowa showed me this.

      Here’s the argument that Michigan used:

      “5) A Schedule 1 controlled substance [in Michigan’s version of the Uniform Controlled Substances Act] is one that has no medicinal benefit;
      6) The Michigan Medical Marijuana Act was passed in 2008 and enacted in 2009;
      5) [sic] The Michigan Medical Marijuana Act states that marijuana has a medicinal benefit;”

      “the Court ruled that the Michigan Medical Marijuana Act repealed (by implication) Michigan’s Schedule 1 Controlled Substance Act as it relates to marijuana/THC.”

      Here’s the federal argument:

      1) Cannabis is in Schedule I at the federal level. A Schedule I controlled substance in the Federal Controlled Substances Act is one that “has no currently accepted medical use in treatment in the United States.”;

      2) The Michigan Medical Marijuana Act was passed in 2008 and enacted in 2009;

      4) 15 other states have passed similar medical cannabis laws starting in California in 1996.

      5) The Michigan Medical Marijuana Act and the 15 other state medical cannabis laws state that cannabis has a medicinal benefit;

      6) Since these 16 states are “in the united states” and since Michigan itself is petitioning for the removal of cannabis from Schedule I, cannabis must be removed from Schedule I of the Federal CSA because it now has “accepted medical use in treatment in the United States”.

      7) It is critical that every other medical cannabis state gets cannabis out of their own state’s version of the Uniform Controlled Substances Act and joins the state of Michigan in petitioning the DEA to remove cannabis from Schedule I immediately so that the DEA has no wiggle room. Here is the petition that Michigan and all the other states must fill out and file with the DEA… http://www.deadiversion.usdoj.gov/21cfr/cfr/1308/1308_43.htm

  11. absolutly beautiful, great job.

  12. There does not seem to be any information in this article to verify the case. I understand the need for confidentiality, but using case law means knowing the actual case. While I applaud this defense and I am excited about the implications, I cannot be excited about something that I can’t quote. Throw us a bone?

    • The ruling was made from the bench and the transcript is not yet finished so there is no bone to throw right now. What we should be asking is whether the transcript will be made available online when the law firm gets it.

      • You are correct Kurt. As of right now, we (Neil Rockind, P.C.) don’t have any bones to throw, since the opinion was oral (instead of written.) Rest assured that we have requested the transcript and will make it available after we are assured that doing so will not hurt our client’s chances of prevailing on appeal.

    • Adam, we don’t yet have anything to quote. The judge issued an oral opinion (instead of a written opinion.) We have ordered the transcript and will disseminate it appropriately after we receive it and have a chance to review it.

  13. Pingback: Oakland County Judge Judge Rules that the Operating With Any Presence of Marijuana...

  14. Maybe the Order Of Dismissal will allow you to track it. Remember the client may not want any exposure even if the law firm does. VV

  15. I am so happy to read this!

  16. Hello,
    I just wanted to take a minute to tell you that you have a great site!
    Keep up the good work.

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