8.7Other Issues Arising Under the MMMA

A.Agency

Where police found a third defendant, who “was neither a qualifying patient nor a caregiver under the MMMA[,]” watering marihuana plants during the search of one of the other defendant’s homes, the third defendant could not claim immunity as an agent of a cardholder; “[b]ecause [the homeowner defendant] did not qualify for immunity, no agent of his [could] claim immunity derived from [him].” People v Tackman, 319 Mich App 460, 473, 475 (2017).

B.Ordinances 

“Generally, local governments may control and regulate matters of local concern when such power is conferred by the state,” but state law “may preempt a local regulation either expressly or by implication.” DeRuiter v Byron Twp, 505 Mich 130, 140 (2020). “In the context of conflict preemption,^[1] a direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.” Id. (quotation marks and citation omitted). “An examination of whether the MMMA directly conflicts with [a] zoning ordinance must necessarily begin with an examination of both the relevant provisions of the MMMA and of the ordinance.” Id. at 140-141. Local law cannot “wholly prohibit[] an activity . . . that the MMMA allows. But that does not mean that local law cannot add to the conditions in the MMMA.” Id. at 144-145 (quotation marks and citation omitted). “[T]he MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq., so long as the municipality does not prohibit or penalize all medical marijuana cultivation, . . . and so long as the municipality does not impose regulations that are unreasonable and inconsistent with regulations established by state law.” DeRuiter, 505 Mich at 147-148 (quotation marks and citation omitted). Accordingly, “a local regulation that limits where medical marijuana must be cultivated” by imposing a “locational restriction” allowing medical marijuana cultivation as “a home occupation” only, does not conflict with the “‘enclosed locked facility’ requirement in the MMMA,” which “concerns what type of structure marijuana plants must be kept and grown in for a patient or caregiver to be entitled to the protections offered by MCL 333.26424(a) and [MCL 333.26424](b),” but “does not speak to where marijuana may be grown.” DeRuiter, 505 Mich at 143-144 (noting that an “enclosed, locked facility could be found in various locations on various types of property”).² The Court explained that there was no contradiction between the local ordinance and state law because “[t]he geographical restriction imposed by [the township’s] zoning ordinance adds to and complements the limitations imposed by the MMMA,” and “the local ordinance goes further in its regulation but not in a way that is counter to the MMMA’s conditional allowance on the medical use of marijuana.” Id. at 147. See also York Twp v Miller (On Remand), 335 Mich App 539, 544 (2021) (applying DeRuiter to conclude that the township’s zoning ordinance did not directly conflict with the MMMA where it “allowed for the cultivation of medical marijuana by primary caregivers as a ‘home occupation’ and required that the caregiver cultivate the marijuana inside a residence”).

A city ordinance prohibiting “‘[u]ses that are contrary to federal law,’” which was adopted for the purpose of “‘regulat[ing] the growth, cultivation and distribution of medical marihuana in the [city] by reference to the federal prohibitions^[3] regarding manufacturing and distribution of marijuana,’” was in “direct conflict with the MMMA,” and was therefore void and unenforceable. Ter Beek v City of Wyoming, 297 Mich App 446, 450, 453, 456-457 (2012), aff’d 495 Mich 1 (2014). Noting that “[a] city ordinance that purports to prohibit what a state statute permits is void,” the Ter Beek Court held that “because the ordinance . . . provides for punishment of qualified and registered medical-marijuana users in the form of fines and injunctive relief, which constitute penalties that the MMMA expressly prohibits,” the ordinance was preempted by MCL 333.26424(a) and could not be enforced. Ter Beek, 297 Mich App at 453, 456-457.⁴ Additionally, the Court concluded that federal law prohibiting the use of marijuana did not preempt the MMMA. Id. at 457-464. Noting that, as acknowledged in MCL 333.26422(c), “the immunity [provided for in § 4(a)] was not intended to exempt qualified medical-marijuana users from federal prosecutions,” and that “Congress cannot require the states to enforce federal law,” the Court held that “MCL 333.26424(a) is not preempted by the [federal Controlled Substances Act (CSA), 21 USC 801 et seq.,] because the limited grant of immunity from a ‘penalty in any manner’ pertains only to state action and does not purport to interfere with federal enforcement of the CSA.” Ter Beek, 297 Mich App at 462-464.

C.Employment Issues

Termination from employment. Section 4(a) does not “restrict[] the ability of a private employer to discipline an employee for drug use where the employee’s use of marijuana is authorized by the state.” Casias v Wal-Mart Stores, Inc, 695 F3d 428, 436 (CA 6, 2012).⁵ In Casias, 695 F3d at 431-432, the plaintiff, who had been issued a registry identification card under the MMMA, was terminated from his employment with the defendant when he failed a drug test that was administered in accordance with the defendant’s policy after the plaintiff suffered a workplace injury. The district court dismissed the plaintiff’s lawsuit claiming wrongful discharge and violation of the MMMA, and the Sixth Circuit Court of Appeals affirmed, holding that “the MMMA [does not] protect[] patients against disciplinary action in a private employment setting for using marijuana in accordance with Michigan law.” Id. at 432, 434. The Casias Court rejected the plaintiff’s assertion that the word “business” in § 4(a)⁶ refers to private employers, holding that “it is clear that [§ 4(a)] uses the word ‘business’ to refer to a ‘business’ licensing board or bureau, just as it refers to an ‘occupational’ or ‘professional’ licensing board or bureau[, and t]he statute is simply asserting that a ‘qualifying patient’ is not to be penalized or disciplined by a ‘business or occupational or professional licensing board or bureau’ for his [or her] medical use of marijuana.” Casias, 695 F3d at 435-436.

Eligibility for unemployment. The MMMA’s immunity clause applies to individuals who are terminated by private employers on the basis of their medical marijuana use in regard to their eligibility for unemployment benefits. Braska v Challenge Mfg Co, 307 Mich App 340, 343 (2014). In Braska, the Court held that the Casias decision was “not binding precedent,” and further distinguished Casias because it involved action solely by private employers. Braska, 306 Mich App at 362. In contrast, the issue in Braska was whether the Michigan Compensation Appellate Commission (MCAC), a state actor, “imposed a penalty upon claimants that ran afoul of the MMMA’s broad immunity clause.” Id. at 363. The Court held that “an employee who possesses a registration identification card under the [MMMA] is [not] disqualified from receiving unemployment benefits under the Michigan Employment Security Act, (MESA), MCL 421.1 et seq., after the employee has been fired for failing to pass a drug test as a result of marijuana use.” Braska, 307 Mich App at 343. Where there is “no evidence to suggest that [a] positive drug test[ was] caused by anything other than [a] claimant[’s] use of medical marijuana in accordance with the terms of the MMMA, the denial of [unemployment] benefits constitute[s] an improper penalty for the medical use of marijuana under the MMMA, MCL 333.26424(a)[,]” even though a positive test for marijuana “would ordinarily . . . disqualif[y the claimant] for unemployment benefits under the MESA, MCL 421.29(1)(m)[.]” Braska, 307 Mich App at 365.

Withdrawal of conditional employment offer. Section 4(a) of the MMMA did not prohibit the defendant – a municipal utility – from rescinding a conditional offer of employment to the plaintiff after she tested positive for THC due to the use of medical marijuana because § 4(a) “does not create affirmative rights but instead provides immunity from penalties and the denial of rights or privileges based on the medical use of marijuana,” and “[i]n this case, plaintiff cannot show that she incurred such a penalty or was denied such a right or privilege because the harm she suffered was the loss of an employment opportunity in which she held absolutely no right or property interest.” Eplee v Lansing, 327 Mich App 635, 657 (2019) (plaintiff failed to rebut “the presumption that the position offered to her by the [defendant] was terminable at the will of the [defendant]”). Section 4(a) “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.” Eplee, 327 Mich App at 655, 657. “Plaintiff in this case has failed to allege facts showing that she suffered the type of harm contemplated under [MCL] 333.26424(a), i.e., as applicable here, a ‘penalty,’” and § 4(a) “therefore does not provide plaintiff a cause of action under these circumstances[.]” Eplee, 327 Mich App at 657.

D.Illegal Transportation of Marijuana Statute

The “defendant, as a compliant medical marijuana patient, [could not] be prosecuted for violating” MCL 750.474, concerning the illegal transportation of marijuana, because “MCL 750.474 is not part of the MMMA[]” and “unambiguously seeks to place additional requirements on the transportation of medical marijuana beyond those imposed by the MMMA[;]” “if another statute is inconsistent with the MMMA such that it punishes the proper use of medical marijuana, the MMMA controls and the person properly using medical marijuana is immune from punishment.” People v Latz, 318 Mich App 380, 385 (2016).

E.Operating a Motor Vehicle⁷

“The Michigan Medical Marihuana Act (MMMA) prohibits the prosecution of registered patients who internally possess marijuana, but the act does not protect registered patients who operate a vehicle while ‘under the influence’ of marijuana.” People v Koon, 494 Mich 1, 3 (2013); see MCL 333.26427(b)(4). Being “‘under the influence’ [for purposes of the MMMA] . . . contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.” Koon, 494 Mich at 6. “‘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[.]” People v Dupre, 335 Mich App 126, 139-140 (2020). “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 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.” Id. at 140 (quotation marks and citations omitted).⁸ 

Although “[t]he Michigan Vehicle Code prohibits a person from driving with any amount of a schedule 1 controlled substance, a list that includes marijuana, in his or her system[, see MCL 257.625(8),]” the zero-tolerance provision “does not apply to the medical use of marijuana” because “the MMMA’s protection supersedes the Michigan Vehicle Code’s prohibition[.]” Koon, 494 Mich at 3, 7. Thus, the MMMA “allows a registered patient to drive when he or she has indications of marijuana in his or her system but is not otherwise under the influence of marijuana.” Id. at 3. “[A] registered qualifying patient [may] lose[] immunity because of his or her failure to act in accordance with the MMMA.” Id. at 9. However, “the MMMA does not supersede the OWVI statute.” Dupre, 335 Mich App at 139 (noting that in light of marijuana legalization, the Michigan Supreme Court appears to treat marijuana as if the electors intended that marijuana be treated similar to alcohol). See also People v Perry, 338 Mich App 363, 378-379 (2021) (discussing Dupre, and noting that a person under 21 who drives with marijuana in his or her system should not be treated “more lightly than a person who does so while legally permitted to possess and consume it” under the MMMA or “more lightly than a person under 21 who drives with alcohol in his or her system”).⁹

F.Possession Under the MMMA

The term possession is not defined by the MMMA. People v Bylsma (Bylsma II), 493 Mich 17, 31 (2012). Possession is “one . . . activit[y] that constitute[s] the [medical use of marihuana under MCL 333.26423(h)¹⁰].” Bylsma II, 493 Mich at 30-31. “[T]he MMMA incorporates . . . settled Michigan law regarding possession: a person possesses marijuana when he [or she] exercises dominion and control over it.” Id. at 31. Accordingly, “possession” under the MMMA “‘may be either actual or constructive[,]’” and “the essential inquiry . . . is whether there is ‘a sufficient nexus between the defendant and the contraband,’ including whether ‘“the defendant exercised a dominion and control over the substance.”’” Bylsma II, 493 Mich at 31-32, quoting People v Wolfe, 440 Mich 508, 519-520 (1992) (internal citations omitted).¹¹ The defendant possessed 88 marijuana plants where he “was actively engaged in growing all the marijuana in the facility and used his horticultural knowledge and expertise to oversee, care for, and cultivate all the marijuana growing there[,]” all the plants were stored in unlocked grow booths, and the defendant “had the ability to remove any or all of the plants[.]” Bylsma II, 493 Mich at 33.

See also People v Nicholson, 297 Mich App 191, 200, 201 (2012) (A person “‘possesses’ a registry identification card only when the registry identification card is reasonably accessible at the location of that person’s marijuana possession and use.”).

G.Public Place

1.Definition

While the MMMA may permit the medical use of marijuana, it does not permit any person to smoke marijuana “in any public place.” MCL 333.26427(b)(3)(B). Public place is not defined by the MMMA; accordingly, public place must be given its “plain and ordinary” meaning. People v Carlton, 313 Mich App 339, 347 (2015). “A ‘public place’ is generally understood to be any place that is open to or may be used by the members of the community, or that is otherwise not restricted to the private use of a defined group of persons.” Id. at 348. The Court further explained that “in common usage, when persons refer to a public place, the reference typically applies to a location on real property or a building.” Id. at 348-349 (noting that “[t]he parking lot of a business that is open for the general public’s use—even if it is intended for the use of the business’ customers alone—is a public place in this ordinary sense”).

2.Caselaw

The immunity provided under § 4, MCL 333.26424, and the defense provided under § 8, MCL 333.26428, “[do not] apply to a person who smokes marijuana in his or her own car while that car is parked in the parking lot of a private business that is open to the general public.” Carlton, 313 Mich App at 342-343 (citations omitted). “[P]ersons who smoke medical marijuana in a parking lot that is open to use by the general public, even when smoking inside a privately owned vehicle, and even if the person’s smoking is not directly detectable by the members of the general public who might be using the lot” are smoking medical marijuana in a public place in violation of MCL 333.26427(b)(3)(B). Carlton, 313 Mich App at 350-351 (noting that in determining whether a place is public, “[t]he relevant inquiry is whether the place at issue is generally open to use by the public without reference to a patient’s efforts or ability to conceal his or her smoking of marijuana”) (citations omitted). See also People v Anthony, 327 Mich App 24, 45 (2019) (holding the protections of the MMMA do “not apply to a parked vehicle on a public street”), rev’d in part on other grounds by People v Duff, __ Mich __, __ (2024).

H.Traffic Stop—Probable Cause Based on Marijuana¹²

“[T]he smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle or to seize a driver or passenger found in the vehicle.” People v Armstrong, 344 Mich App 286, 299-300 (2022) (quotation marks and citation omitted) (concluding that the passage of the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq., “changed the law concerning possession and use of marijuana, superseding otherwise-binding decisions that the smell of marijuana, without more, provides probable cause to search for marijuana”).¹³ Accordingly, “the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination, but the smell of marijuana, by itself, does not give rise to probable cause unless it is combined with other factors that bolster the concern about illegal activity that may flow from the smell of marijuana.” Id. at 300 (cleaned up).

For example, in Armstrong, the Court contrasted the facts of its case with the facts of People v Moorman, 331 Mich App 481, 487 (2020), where “the smell of fresh marijuana combined with the defendant’s lying about his legal possession justified removing the defendant from the vehicle and searching the defendant’s vehicle without a warrant.” Armstrong, 344 Mich App at 298. In Armstrong, the officer acted “solely on the basis that she smelled marijuana emanating from the vehicle.” Id. at 301.

I.Search Warrant Affidavit

Before the legalization of recreational marijuana in Michigan, effective December 6, 2018, the Court of Appeals held that “a search-warrant affidavit concerning marijuana need not provide specific facts pertaining to the MMMA, i.e., facts from which a magistrate could conclude that the possession, manufacture, use, creation, or delivery is specifically not legal under the MMMA.” People v Brown (Anthony), 297 Mich App 670, 674-675 (2012). However, the Court’s conclusion was based on the fact that “the possession, manufacture, use, creation, and delivery of marijuana remain illegal in Michigan even after the enactment of the MMMA[.]” Id. at 674. No legal authority has considered this conclusion in light of the fact that recreational marijuana is now legal in Michigan. See the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq. The MRTMA is discussed in Part D: Recreational Marijuana. However, the Court has recently observed that the “analysis of search-and-seizure law is now much more complicated and nuanced than it was when marijuana was unlawful in all circumstances in Michigan.” People v Armstrong, 344 Mich App 286, 298 (2022) (considering whether the smell of marijuana establishes probable cause to search a vehicle after the passage of the MRTMA). Further, the Court noted that the “[p]assage of the MRTMA decriminalized possession and use of marijuana in Michigan,” and concluded “that this action changed the law concerning possession and use of marijuana[.]” Id. at 299. While the Armstrong Court did not address the Brown decision or its holding, the discussion of the MRTMA’s effect on the legal landscape calls into question the continuing validity of Brown’s holding.

In Brown (Anthony), 297 Mich App at 672-673, a police officer obtained a search warrant on the basis of a tip and other evidence indicating that the defendant was growing marijuana in his house; however, the officer did not investigate to determine whether the defendant was a qualifying patient or primary caregiver under the MMMA. The Court of Appeals, affirming the trial court’s denial of the defendant’s motion to suppress evidence seized during the search, rejected the defendant’s argument that “[because] the MMMA made it legal to possess and grow certain amounts of marijuana . . . , the statement in the affidavit that [he] was growing marijuana was insufficient to provide the police officers with probable cause that a crime had been committed.” Id. at 673, 677-678. Rather, because “the MMMA does not abrogate state criminal prohibitions related to marijuana,” but constitutes a limited and restricted exception to those prohibitions, there is no requirement that a search-warrant affidavit set forth facts negating the applicability of the MMMA to a defendant. Id. at 677. However, “if the police . . . have clear and uncontroverted evidence that a person is in full compliance with the MMMA, this evidence must be included as part of [a search-warrant] affidavit because such a situation would not justify the issuance of a warrant.” Id. at 678 n 5.

See also People v Ventura, 316 Mich App 671, 677-678 (2016) (rejecting the defendant’s challenge to a search warrant that did not reference the defendant’s status as a qualifying patient and caregiver under the MMMA and rejecting the defendant’s argument that the warrant was unsupported because the observed delivery by the informant establishing probable cause for the search warrant could have been the defendant giving his patient a supply of medical marijuana; the Court concluded that the trial court did not err in refusing to suppress the evidence merely because the affidavit did not establish that the defendant was not entitled to immunity under § 4 of the MMMA), citing Brown (Anthony), 297 Mich App at 677. Note that whether Ventura is still good law is unclear for the same reasons as Brown following the passage of the MRTMA and the Court’s opinion in Armstrong, 344 Mich App 286.

J.Child Protective Proceedings

Termination of parental rights. “Drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect”; accordingly, where “[t]he condition that led to mother’s adjudication was her use of marijuana during her pregnancy,” but “by the termination hearing, there was no evidence that mother’s use of medical marijuana was having any negative effect on her ability to parent or causing any risk of harm to [the minor child],” “the referee placed far too great an emphasis on the fact that mother consumed medical marijuana.” In re Richardson, 329 Mich App 232, 252, 253 (2019) (quotation marks and citation omitted). “The record does not support the conclusion that there was clear and convincing evidence that mother continued to have an issue with substance abuse that presented an actual risk of harm to [the minor child],” and “[t]he concerns expressed in the proceedings . . . were based more on the referee’s speculation that mother’s use of medical marijuana might lead to creating a harmful environment for [the minor child] even though the overwhelming evidence related to mother’s current medical marijuana use and parenting skills indicated just the opposite.” Id. at 254-255. “Without such evidence, there was not clear and convincing evidence to show that mother had not rectified the condition that led to her adjudication [under MCL 712A.19b(3)(c)(i)] or that mother could not provide proper care and custody [under MCL 712A.19b(3)(g)], and the trial court therefore committed clear error by terminating mother’s parental rights.” Richardson, 329 Mich App at 255-256. The Court specifically held that the referee’s ruling that the mother’s use of marijuana was not “medically necessary” was contrary to MCL 333.26424(d)’s requirement that custody or visitation “shall not be denied” because of the medical use of marijuana without proof that “it creates an unreasonable danger to the minor that can be clearly articulated and substantiated,” and also that it ignored the presumption of medical use in MCL 333.26424(e). Richardson, 329 Mich App at 247-248 (noting there was no dispute that the mother had a medical marijuana card and the referee discounted unrebutted evidence from two doctors and discredited the mother’s testimony that medical marijuana helped treat her seizures and epilepsy).

Parenting time. Noting that the Court in Richardson, 329 Mich App at 247-248, “recognized the application of MCL 333.26424(d)^[14] in the context of child protective proceedings,” the Court held that the “automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under [various statutory provisions including MCL 333.26424(d)] is invalid.” In re Ott, 344 Mich App 723, 742 (2022). Specifically, the Court held that “for purposes of the MMMA and the MRTMA, respondent’s use of marijuana did not justify the denial of her parenting time with [the minor child] unless the court determined that she did not act in accordance with the MMMA or the MRTMA, or unless the court determined that as a result of her marijuana use, it created an unreasonable danger to [the minor child] that was clearly articulated and substantiated.” Id. at 743.

K.Probation Conditions

While “Michigan’s probation act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3  . . . provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.” People v Thue, 336 Mich App 35, 47 (2021). “[A] condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.”

Further, “the revocation of probation is a penalty or the denial of a privilege,” and MCL 333.26424(a) protects a person “from penalty in any manner, or denial of any right or privilege, for the lawful use of medical marijuana.”¹⁵ Thue, 336 Mich App at 48. “Therefore, a court cannot revoke probation because of a person’s use of medical marijuana that otherwise complies with the terms of the MMMA.” Id.

However, while not at issue in the case, the Court observed that courts “may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use as well as for marijuana use in violation of the MMMA.”¹⁶ Thue, 336 Mich App at 48.

A condition of probation that “was rationally related to the underlying offense to which defendant pleaded guilty” is lawful under the Michigan Regulation and Taxation of Marihuana Act (MRTMA), MCL 333.27951 et seq. People v Lopez-Hernandez, ___ Mich App ___, ___ (2024). In Lopez-Hernandez, defendant pleaded guilty to operating a vehicle while visibly impaired and “[did] not dispute that the conviction was related to his use of marijuana, and that he was under the influence of marijuana while driving.” Id. at ___. Under MCL 771.3(11), “[d]iscretionary conditions ‘must be individually tailored to the probationer, must specifically address the assessed risks and needs of the probationer, must be designed to reduce recidivism, and must be adjusted if the court determines adjustments are appropriate.’” Lopez-Hernandez, ___ Mich App at ___, quoting MCL 771.3(11). Referring to People v Thue, 336 Mich App 35 (2021), the Lopez-Hernandez Court stated, “Although the MRTMA provides that individuals cannot be directly penalized for recreational marijuana use, the law specifically prohibits the ‘operat[ion] . . . of any motor vehicle . . . while under the influence of marihuana[.]’” Lopez-Hernandez, ___ Mich App at ___, quoting MCL 333.27954(1)(a) (alterations in original). The defendant in Lopez-Hernandez “was not using marijuana recreationally, in compliance with § 4 of the MRTMA, and was instead violating the law prohibiting the operation of a vehicle while visibly impaired.” Lopez-Hernandez, ___ Mich App at ___. Thus, the defendant was “not entitled to protection from penalty under the MRTMA for violating the terms of his probation, and [the Court] conclude[d] that the condition of his probation prohibiting him from using marijuana [was] lawful.” Id. at ___. “[T]he probation condition prohibiting defendant’s use of marijuana was rationally related to his rehabilitation in this case, as it addresse[d] the underlying substance use issue that led to his violation of MCL 257.625(3).” Lopez-Hernandez, ___ Mich App at ___.

Pursuant to MCL 771.3(1)(a), “it is permissible to proscribe the use of marijuana as a condition of probation for nonmarijuana-related crimes.” People v Hess, ___ Mich App ___, ___ (2024). In this case, defendant pleaded guilty to retail fraud and was sentenced to serve 12 months’ probation. Id. at ___. “The order of probation prohibited defendant from using or possessing marijuana and required that she submit to drug screening for marijuana.” Id. at ___. After twice testing positive for marijuana and receiving two violations of probation, “defendant moved . . . to amend the terms of her probation to allow the use and possession of marijuana, . . . arguing that the condition of her probation that prohibited her use of marijuana violated the plain language of the MRTMA.” Id. at ___. “Defendant [sought] to extend [People v] Thue’s reasoning . . . raising the same argument as the defendant in [People v] Lopez-Hernandez,” contending “that because the MRTMA prohibits penalizing the use of marijuana in a manner compliant with the statute and it mirrors the language of the MMMA on the same subject, the probation condition prohibiting her use of recreational marijuana is unenforceable.” Id. at ___, citing People v Thue, 336 Mich App 35, 47 (2021); People v Lopez- Hernandez, ___ Mich App ___, ___ (2024). However, the Thue Court explained in dicta that “the MMMA was inapplicable to the recreational use of marijuana[.]” Hess, ___ Mich App at ___. “Lopez-Hernandez has turned the dicta of Thue into the binding precedent that the MRTMA does not automatically preclude a condition of probation that prohibits the use or possession of marijuana.” Hess, ___ Mich App at ___. Further, “MCL 771.3(1)(a) states that “[d]uring the term of . . . probation, the probationer shall not violate any criminal law of this state, the United States, or another state or any ordinance of any municipality in this state or another state.” Hess, ___ Mich App at ___. “Using recreational marijuana may be permissible in Michigan but it is still prohibited by federal law.” Id. at ___. Therefore, defendant “violated her lawfully imposed terms of probation.” Id. at ___.