9.11​Operating with the Presence of Certain Controlled Substances in Body—Section 625(8)

A.​Statutory Authority

“A person, whether licensed or not, shall not operate a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles,²⁵ including an area designated for the parking of vehicles, within [Michigan] if the person has in his or her body any amount of a controlled substance listed in schedule 1 under [MCL 333.7212], or a rule promulgated under [MCL 333.7212], or of a controlled substance described in [MCL 333.7214(a)(iv)].” MCL 257.625(8).

B.​Relevant Jury Instruction

•​M Crim JI 15.3a addresses operating with any amount of a schedule 1 or 2 controlled substance in his or her body.

C.​Penalties

“If a person is convicted of violating [MCL 257.625(8)], all of the following apply:

(a) Except as otherwise provided in subdivisions (b) and (c), the person is guilty of a misdemeanor punishable by 1 or more of the following:

(i) Community service for not more than 360 hours.

(ii) Imprisonment for not more than 93 days[.]

(iii) A fine of not less than $100.00 or more than $500.00[.]

(b) If the violation occurs within 7 years of a prior conviction, the person must be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and 1 or more of the following:

(i) Imprisonment for not less than 5 days or more than 1 year.

(ii) Community service for not less than 30 days or more than 90 days.

(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and must be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:

(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.

(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph must be served consecutively.

(d) A term of imprisonment imposed under subdivision (b) or (c) must not be suspended unless the defendant agrees to participate in a specialty court program and successfully completes the program.” MCL 257.625(9).

D.​Sanctions

Only applicable sanctions are listed below; accordingly, if a particular sanction is omitted from this section, it is not applicable to this offense. The Offense Code Index for Traffic Violations published by the secretary of state and sourced from the Michigan Department of State Court Manual includes a table detailing traffic offenses and applicable sanctions. See Section 1.41 for more information on abstracting procedures.

•​Six points. See MCL 257.320a(1)(c). See Section 1.42 for more information on points.

•​License suspension/revocation (length dependent on specific conviction and criminal history). See MCL 257.303(2)(c); MCL 257.319(8)(a). See Section 1.45 for more information on license suspension and Section 1.44 for more information on license revocation.

•​Violation of MCL 257.625(8) if no prior convictions within seven years: mandatory 180-day suspension; discretionary restricted license after first 30 days of suspension period if offender is otherwise eligible. See MCL 257.319(8)(a); MCL 257.319(14).

•​Any combination of two convictions within seven years for offenses listed in MCL 257.303(2)(c)(i)-(iii): mandatory revocation of at least one year (length dependent on various factors). See MCL 257.303(2)(c); MCL 257.303(4).

•​Any combination of three convictions within 10 years for offenses listed in MCL 257.303(2)(g)(i)-(iii): mandatory revocation of at least one year (length dependent on various factors). See MCL 257.303(2)(g); MCL 257.303(4).

•​Vehicle immobilization (length dependent on specific conviction and criminal history). See MCL 257.625(9); MCL 257.904d(1). See Section 1.47 for more information on vehicle immobilization.

•​No prior convictions: immobilization may be ordered for not more than 180 days. See MCL 257.625(9)(e); MCL 257.904d(1)(a).

•​Conviction under MCL 257.625(8) within seven years after a prior conviction: mandatory immobilization for not less than 90 days or more than 180 days, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(9)(e); MCL 257.904d(1)(c).

•​Conviction under MCL 257.625(8) after two or more prior convictions: mandatory immobilization for not less than one year or more than three years, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(9)(e); MCL 257.904d(1)(d).

•​Vehicle forfeiture may be imposed for a violation of MCL 257.625(8). See MCL 257.625(9)(e); MCL 257.625n. See Section 1.49 for more information on vehicle forfeiture.

•​Registration denial is required under certain circumstances. See MCL 257.219(1)(c)-(d). See Section 1.50 for more information on registration denial.

E.​Issues

“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). “The [MVC] prohibits a person from driving with any amount of a schedule 1 controlled substance, a list that includes marijuana, in his or her system.” Id. However, “the MMMA’s protection supersedes the [MVC’s] prohibition and 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. Stated another way, “the [MVC’s] zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana.” Koon, 494 Mich at 7. “[T]he 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.” Koon, 494 Mich at 8-9.

11-carboxy-THC, “a byproduct of metabolism created when the body breaks down the psychoactive ingredient of marijuana,” is not a schedule 1 controlled substance because the Legislature did not intend for it to be a schedule 1 controlled substance under MCL 333.7212. People v Feezel, 486 Mich 184, 204-205, 207-212 (2010), overruling People v Derror, 475 Mich 316 (2006), to the extent that it conflicts with the holding in Feezel. See also People v Stock, 507 Mich 1008 (2021) (rejecting the prosecution’s argument “for an interpretation of ‘controlled substance’ [for purposes of MCL 257.625(8)] that would include any metabolite of cocaine,” and reversing the defendant’s convictions for operating a motor vehicle while intoxicated causing death and causing serious impairment of a body function where the prosecution presented evidence “indicating the presence of an unidentified metabolite of cocaine in the defendant’s urine,” but “failed to present evidence that the presence of cocaine metabolites in the defendant’s urine supports a reasonable inference that the defendant had cocaine in her body”).

Effective December 6, 2018, Initiated Law 1 of 2018, MCL 333.27951 et seq., created the Michigan Regulation and Taxation of Marihuana Act (MRTMA), the purpose of which “is to make marihuana legal under state and local law for adults 21 years of age or older, to make industrial hemp legal under state and local law, and to control the commercial production and distribution of marihuana under a system that licenses, regulates, and taxes the businesses involved.” MCL 333.27952.

Similar to the conduct limitations set forth in the MMMA,²⁶ the MRTMA “does not authorize . . . operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while [consuming marihuana or] under the influence of marihuana[.]” MCL 333.27954(1)(a); MCL 333.27954(1)(g). “[S]moking marihuana within the passenger area of a vehicle upon a public way” is also prohibited. MCL 333.27954(1)(g). Notwithstanding, the MRTMA penalty provision does not penalize such conduct. MCL 333.27965.

As noted in Koon, the MVC continues to prohibit the operation of a vehicle if the operator has any amount of a schedule 1 substance, which includes marihuana, in his or her body. MCL 257.625(8); MCL 333.7212(1)(c). It is unclear if violations of the limited conduct set forth in the MRTMA will be pursued under the MVC. It is equally unclear if the Koon holding, which provides that the MMMA supersedes the MVC, will be extended to the MRTMA.²⁷

Except for a person engaged in certain described conduct, “a person under 21 years of age who possesses not more than 2.5 ounces of marihuana or who cultivates not more than 12 marihuana plants . . . is responsible for a civil infraction[.]” MCL 333.27965(3)(a). “MCL 257.625(8) criminalize[s] the ‘use’ of marijuana [when operating a motor vehicle], while [MCL 333.27965(3)] decriminalize[s] the ‘possession’ and ‘cultivation’ of marijuana for individuals under the age of 21. Michigan law recognizes a distinction between possessing marijuana, MCL 333.7403, and using marijuana, MCL 333.7404.” People v Perry, ___ Mich App ___, ___ (2021). In Perry, defendant “was not charged with the possession or cultivation of marijuana. Rather, she was charged with operating a vehicle with ‘any amount of a controlled substance’ in her body. MCL 257.625(8). Using or consuming marijuana is a necessary step leading to the operation of a motor vehicle with marijuana in the driver’s system, in violation of MCL 257.625(8); simple possession, however, is not.” Perry, ___ Mich App at ___. “Had the legislature intended to decriminalize the internal possession or use of marijuana for those under 21 it would presumably have placed a limit consistent with the amount a person could reasonably use or consume—much, much lower than the stated limit of 2.5 ounces.” Id. at ___. “[W]hen a person is under the influence of marijuana or is consuming marijuana while operating a vehicle, the person is not afforded the same limitation on punishment as one who is under 21 and simply possesses less than 2.5 ounces or marijuana or cultivates 12 or fewer marijuana plants.” Id. at ___. “[T]he MRTMA did not remove all criminal penalties for persons under the age of 21 who operate a motor vehicle with marijuana in their system, is under the influence of marijuana while driving, or consumes marijuana while operating a vehicle.” Perry, ___ Mich App at ___.

For more general information on the MMMA and the MRTMA, see the Michigan Judicial Institute’s Controlled Substances Benchbook, Chapter 8.