Traverse City Record-Eagle

May 23, 2013

Victory for medical marijuana patients

Traverse City Record-Eagle

---- — TRAVERSE CITY — Medical marijuana patients and advocates scored a victory after the state’s top court issued a decision on a long-running Grand Traverse County case.

The Michigan Supreme Court this week effectively struck down a “zero tolerance” approach toward medical marijuana patients who drive with the drug in their system.

“Now it’s up to the prosecutor to show the medical marijuana user is actually affected before they can move forward with prosecution,” said Jim Hunt, a local attorney who represents defendant Rodney Lee Koon.

Koon, 51, has a medical medical marijuana registry card to address pain from two back surgeries. He was pulled over in 2010 by a Grand Traverse County sheriff’s deputy for speeding and told the deputy he smoked marijuana about five hours earlier.

“The thing about it was I wasn’t intoxicated when the officer pulled me over,” Koon said. “But by that time he had me cuffs. I told him then I’ll take it to the Supreme Court.”

Koon was arrested and charged with operating while intoxicated after a blood test showed marijuana in his system.

It’s illegal under Michigan law for a driver to have any amount of marijuana in their system, but at the time 13th Circuit Court Judge Philip Rodgers ruled the Michigan Medical Marihuana Act provided Koon with protection from prosecution.

Grand Traverse County’s then-Prosecutor, Alan Schneider, successfully appealed Rodgers’ decision to a state appellate court panel, which set the stage for a Michigan Supreme Court decision with broad implications for medical marijuana patients. The Supreme Court ruled the voter-approved 2008 medical marijuana act was clear that patients are protected as long as they don’t drive under the influence:

“The MMMA does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person,” the Supreme Court’s ruling stated.

Grand Traverse County Prosecutor Bob Cooney said he would make a decision “very shortly” on whether to continue the Koon case in 86th District Court under the terms dictated by the Supreme Court.

Koon is proud of the victory, even as he waits for Cooney’s next move.

“When you believe in something, never back down,” he said. “If you’re wrong, you take your lumps or take your punishment.”

Jesse Williams, a local attorney who specializes in medical marijuana cases, called the decision “monumental” for its direct effect on patients throughout the state.

“Every case that exists where there is a medical marijuana patient charged with the presence of a controlled substance-marijuana now has a viable defense,” he said. “The burden is on the people, as it always been.”

Cooney said he still has concerns. He said the decision creates a “double standard” for medical marijuana patients and the rest of the public and it makes no distinction between driving under the influence and the lesser offense of driving while impaired.

The Supreme Court decision states the Legislature could help clarify the issue by setting a “legal limit” for driving, but Cooney noted the reason the Legislature initially passed marijuana zero tolerance was the difficulty in establishing such a standard in the first place.

“I think it’s important to understand people don’t have same symptoms while under marijuana as alcohol,” he said.

Rodgers said law enforcement would just have to go back to older policing methods to judge marijuana impairment.

“Long before blood-alcohol testing, we did roadside testing to see if someone (was) impaired,” he said. “Until such time we have a way to determine quantity of (marijuana) in someone’s system, I assume law enforcement would go back to time-honored field sobriety tests for driving impairment.”