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