Using Medical Marijuana While on Bond for Drunk Driving

If you are charged with drunk driving in Michigan, then the clear majority of judges will require that you abstain from all alcohol and all illegal drugs. This will be a condition of your bond, and to be sure that you are compliant with your bond, you will be tested, usually randomly, for both alcohol and drugs.

If you are a medical marijuana user, then these bond conditions present a special problem for the courts because you have the lawful right to use marijuana.  However, marijuana remains a schedule I drug at both the state and federal levels.  This means it is an illegal drug that you can use legally.

Because this is a legal gray area, courts differ relative to their willingness to allow a person who is on bond to continue using medical marijuana.  Some courts allow this while others do not.  Your attorney can help you determine what is likely in your case.

In the event that you plead or are found guilty of drunk driving, then once you are sentenced you will no longer be on bond, and the conditions of the bond will no longer apply to you.  However, you will be placed on probation, and as a condition of probation, you may again be ordered to not use alcohol or illegal drugs.  The question of whether a sentencing judge can order you, as a condition of probation, to stop using marijuana, was recently addressed by the Michigan Court of Appeals in an unpublished opinion.  The name of this felony drunk driving case is People v. Magyari and it arose out of the Oakland County Circuit Court.

At sentencing, the Oakland County trial court judge sentenced the defendant to 60 days in jail. Also, three years’ probation.  The court also required the defendant to wear a SCRAM tether for the first year, and not use or possess any controlled substance without a prescription. The court further required that he participate in an outpatient or residential substance abuse treatment program. Later, the defendant asked the trial court to allow him to use medical marijuana while on probation.  The defendant argued that because he had a valid medical marijuana card, and based on the interplay between federal law and Michigan law, the probation condition was preempted.

The court of appeals disagreed with the defendant’s position and stated that “preemption is not an issue here.”  The court of appeals determined that preemption was not an issue because “the trial court analyzed the circumstances of defendant’s specific case and concluded that the defendant was not an appropriate candidate to use marijuana while on probation.”  Because of this, the Oakland County Circuit Court Judge did not base its non-allowance of medical marijuana on the fact that use marijuana because the use would be a violation of federal law, and thereby a violation of probation, contrary to MCL 771.3(1)(a).

Even though this unpublished opinion provides the necessary authority for a court to preclude the use of medical marijuana while on bond, not all judges follow this opinion.  If you are a valid and lawful user of medical marijuana, then be sure to discuss this fact with your attorney and ask him or her to advise you on what might be done to preserve your lawful right to continue using either on probation or on bond.