Traverse City Record-Eagle

August 4, 2011

Marijuana driving case heads for appeal

BY ART BUKOWSKI
abukowski@record-eagle.com

TRAVERSE CITY — The Michigan Court of Appeals will hear the case of a local man arrested for driving a car after smoking medical marijuana, and the court's decision will have statewide implications.

The court will determine whether Grand Traverse County Prosecutor Al Schnieder has to prove that Rodney Koon, a registered marijuana user, was impaired by marijuana in his system.

A Grand Traverse sheriff's deputy arrested Koon after a traffic stop in February 2010. Koon told the deputy he smoked marijuana about five hours before the stop, and the deputy arrested him for operating under the influence of drugs.

Thirteenth Circuit Court Judge Philip E. Rodgers ultimately determined that Schneider had to prove that Koon was impaired by the drug, but Schneider appealed. Existing laws make it a crime for an individual to operate with marijuana in his or her system, and Schneider doesn't think a medical marijuana certification should change that.

"It's either inherently dangerous or it's not," Schneider said. "That's the issue."

Appeals Judge Peter D. O'Connell said he would side with Schneider before hearing any arguments in the case, though the other two judges on the three-judge appeals panel won't necessarily agree with his opinion.

"I disagree ... with the court's determination that the Michigan Medical Marijuana Act ... grants the right or permission to operate a motor vehicle with marijuana in the body," O'Connell wrote. "Prior to the passage of the MMMA, Michigan law prohibited operation of a motor vehicle with any amount of marijuana in the body."

Attorney General Bill Schuette filed an amicus curiae brief in the case. Such briefs, filed by people or groups with interest in a case, are reviewed by the court but don't necessarily influence the court's decision.

Schuette also agreed with Schneider.

"This case asks whether the Michigan Medical Marijuana Act displaced the long-standing Michigan law that it is ... illegal to drive with any marijuana ... in the body," Schuette wrote. "The answer is clear: It did not."

Schneider isn't surprised Schuette filed a brief in the case.

"It does have statewide implications," he said. "It's not unusual for him to weigh in."

Jesse Williams, a Traverse City attorney who specializes in medical marijuana, said authorities had no business charging Koon without proving the drug affected his driving.

"It's akin to anyone else on any kind of prescription medication," he said. "You have to show impairment."

Rodgers said there's plenty of "contradictory legislation" surrounding the state's medical marijuana laws, and he believes the Koon case might help clarify some of it.

"This case needed to be appealed ... the only way to get this resolved is to start sending some issues up through the Court of Appeals" and on to the Michigan Supreme Court, he said.