Motion to allow defendant to use medical marijuana while on probation; The Michigan Medical Marijuana Act (MMMA) (MCL 333.26421 et seq); Whether revoking probation upon the use of medical marijuana would constitute a “penalty” in violation of MCL 333.26424(a); MCL 333.26427(a) & (e); The Michigan Probation Act (MCL 771.1 et seq); MCL 771.3; Ter Beek v Wyoming; People v Koon; People v Latz; Mootness; Exception for issues of public significance likely to recur yet evade judicial review

In an issue of first impression, the court held that Michigan Probation Act provisions allowing courts “to prohibit a probationer’s MMMA-compliant use of marijuana impermissibly conflict with” the MMMA and are unenforceable. Further, revoking probation upon the MMMA-compliant use of marijuana constitutes a penalty in violation of MCL 333.26424(a). Thus, the court reversed the district court’s order denying defendant’s motion to modify his probation terms to permit him to use medical marijuana. It noted that in several cases not involving probation conditions, it and the Supreme Court have ruled “that the MMMA preempts or supersedes ordinances and statutes that conflict with the MMMA.” In addition, other states with laws like the MMMA “have held that probation terms prohibiting the use of medical marijuana in compliance with medical marijuana laws are unenforceable and illegal under those laws.” Addressing MCL 333.26427(a) and (e), the court noted there was no dispute defendant had a medical marijuana registration card and no indication he “used marijuana in violation of the MMMA.” Thus, MCL 333.26427(a) authorized him to use it. Under the plain language of that statute, and “the holdings in Ter Beek, Koon, and Latz, a statute or provision of a statute that conflicts with a defendant’s right to MMMA-compliant use of marijuana is preempted or superseded by the MMMA.” While MCL 771.3, part of the Michigan Probation Act, allows “a court to impose multiple conditions of probation on” defendants, provisions of that Act “that are inconsistent with the MMMA do not apply to the medical use of marijuana.” In addition, the court concluded that because “probation is a privilege, the revocation of probation is a penalty or the denial of a privilege. Under MCL 333.26424(a) a person is protected from penalty in any manner, or denial of any right or privilege, for the lawful use of medical marijuana. Therefore, a court cannot revoke probation upon the use of medical marijuana that otherwise complies with the terms of the MMMA.” But the court noted the MMMA does not apply to recreational use. Thus, conditions related to this may be imposed, and probation may be revoked for such use, as well as for use “in violation of the MMMA.”