The impact of the MMMA and the MRTMA on probation conditions prohibiting marijuana use

From the December 2024 | January 2025 Criminal Defense Newsletter
MCL 772.3(1)(a) mandates that all orders of probation include the requirement that “[d]uring the term of his or her probation, the probationer shall not violate any criminal law of this state, the United States, or another state or any ordinance of any municipality in this state or another state.” The language of this provision has not changed in the 21st century, but Michigan law pertaining to the possession and use of marijuana has undergone significant changes since 2008. 

Through referendum, voters have not only decriminalized the possession and use of marijuana by adults in most circumstances but have also affirmatively granted immunity from “arrest, prosecution, or penalty in any manner,” and prohibited the “den[ial] [of] any other right or privilege” based on marijuana possession or use in compliance with Michigan law.Like MCL 772.3(1)(a), United States (federal) law criminalizing the possession of marijuana has remained the same for decades. Marijuana is still a Schedule 1 controlled substance, and its possession continues to violate federal law. 

This article discusses the Court of Appeals’ decisions that have sought to reconcile the mandatory language of MCL 771.3(1)(a) with federal law and more recent amendments to Michigan law decriminalizing marijuana and affording certain protections to those who use it.

Efforts to reconcile the Probation Act with the MMMA and MRTMA

The Michigan Medical Marihuana Act (MMMA) was approved by voter referendum in November 2008 and became effective December 4, 2008. Section 4(a) of the MMMA provides that a qualifying patient “is not subject to arrest, prosecution, or penalty in any manner or denied any right or privilege … for the medical use of marihuana in accordance with this act.”2 Section 7 further provides that except for statutes pertaining to specialized drug and mental health treatment courts: “All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.”3 Prior to 2008, few Court of Appeals or Supreme Court decisions even mention probation conditions prohibiting marijuana use or possession. There seems to have been little or no question that a defendant’s probation could be revoked if their drug screening returned a positive result for marijuana.4 

The Court of Appeals first agreed to consider how the MMMA might restrict a court’s ability to prohibit or punish marijuana use by qualifying patients placed on probation in 2014. In People v Howard, Mr. Howard argued that because he was a qualifying patient under the MMMA, the trial court abused its discretion and violated the law by extending the duration he was required to be on an alcohol tether because he tested positive for marijuana in a drug screening.5 By the time the case was submitted, however, the issue had been rendered moot because he was no longer on the tether. 

In 2017, the Court of Appeals addressed the issue directly, albeit in an unpublished opinion.6 Mr. Magyari pled no contest to operating while intoxicated, third offense (OWI III), and operating without a valid license in 2015 and was sentenced to three years’ probation. His probation order prohibited him from possessing or using any controlled substances without a prescription or violating any criminal laws of any governmental unit. He was also ordered to submit to drug testing as directed by his probation officer. Thereafter, Mr. Magyari moved for an order from the trial court allowing him to use medical marijuana while on probation. After the trial court denied his motion, Mr. Magyari appealed the decision by leave granted. 

In an unpublished opinion that does not appear to have been cited in any subsequent Michigan Court of Appeals or Supreme Court opinions or orders, the Court of Appeals dismissed the premise of Mr. Magyari’s argument that the trial court prohibited him from using marijuana as a probation condition based on MCL 772.3(1)(a) and the Federal Controlled Substances Act. Instead, it found that the condition had been imposed under MCL 771.3(3), which grants courts the authority to “impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.”The Court of Appeals panel found that the circumstances of the sentencing offense warranted the complete prohibition of Mr. Magyari’s medicinal marijuana use because of his “long history of abusing both alcohol and marijuana” and “prior federal conviction for conspiring to deliver marijuana.” The Court of Appeals did not address whether MCL 333.26424(a) restricted the court’s authority under MCL 771.3(3). 

The MMMA had been in place for over a decade before the Court of Appeals issued a published opinion that appeared to resolve whether MMMA-compliant use and possession of marijuana could be prohibited as a condition of probation.

In 2019, Mr. Thue was sentenced to one-year probation for a misdemeanor assault, which included a condition prohibiting him from using marijuana.8 Mr. Thue, who had a valid medical marijuana registration card, moved to modify the condition to allow him to use medical marijuana. The district court denied his motion, and the circuit court affirmed. He appealed to the Court of Appeals by leave granted, which agreed to resolve the issue directly, even though Mr. Thue’s term of probation had expired before the case was decided.

The Court of Appeals held that while “Michigan’s probation act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3,” the “provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.”9 It explained that “[b]ecause probation is a privilege,” under Michigan law, “the revocation of probation because of MMMA-compliant use of marijuana constitutes a “penalty” under MCL 333.26424(a) of the MMMA.”10 As such, “a court cannot revoke probation because of a person’s use of medical marijuana that otherwise complies with the terms of the MMMA.”11 

Near the end of its opinion in Thue, the Court of Appeals wrote that “the MMMA is inapplicable to the recreational use of marijuana, and thus, a trial court may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use as well as for marijuana use in violation of the MMMA.”12 Though dicta, this was a significant assertion because the Michigan Regulation and Taxation of Marihuana Act (MRTMA) had been approved by voter referendum just fifteen months earlier, and granted all adults who possessed and used small amounts of marijuana the same protection from “arrest, prosecution, or penalty in any manner,” that had previously been afforded only to “qualifying patients” under the MMMA. 

People v Lopez-Hernandez (2024) (No. 367731)

In People v Lopez-Hernandez,13 Mr. Lopez-Hernandez pled guilty to operating a motor vehicle while visibly impaired (OWI) and under the influence of marijuana. He was sentenced to probation. Like Mr. Thue, his probation conditions prohibited him from using or possessing marijuana. After he tested positive for marijuana, Mr. Lopez-Hernandez was charged with violating his probation. He moved to dismiss the violation based on the immunity afforded by MRTMA, but the district court denied his motion, and the circuit court affirmed. The Court of Appeals granted him leave to appeal and also affirmed.14

The Court of Appeals found that MRTMA “essentially placed marijuana in the same category of intoxicants as alcohol, which is legal for recreational use by adults over the age of 21,” but can be prohibited as a condition of probation. The Court held that Mr. Lopez-Hernandez was “not entitled to any of the protections for recreational marijuana use set forth in the MRTMA” because he pled guilty to violating MRTMA by operating a vehicle while under the influence of marijuana.15 According to the Court, “the probation condition prohibiting him from using marijuana was a penalty imposed for violating MCL 257.625(3),” and “[n]othing in the MRTMA suggests that it was intended to supersede the Michigan Vehicle Code…, particularly not those portions of the MVC designed to protect the health and safety of the public.”

This was not the first time that the Court of Appeals held that the Motor Vehicle Act permitted the punishment of marijuana use that a more recently enacted ballot measure appeared to preclude. In People v Koon,16 the Court of Appeals held that a licensed medical marijuana user could be prosecuted under MCL 257.625(8), which makes it a crime to operate a motor vehicle with any amount of schedule 1 controlled substance in one’s body, because the MMMA “explicitly prohibits the operation of a motor vehicle while under the influence of marijuana” and the Motor Vehicle Act “provide[s] a definition of what constitutes being under the influence of marijuana: the presence of any amount of marijuana in the person’s body.”17 In a unanimous decision, the Supreme Court found that MCL 257.625(8) and the MMMA conflict irreconcilably and that the MMMA granted immunity to registered patients who drive with indications of marijuana in their system who are not otherwise under the influence of marijuana.18 

People v Hess (2024) (No. 366148)

In People v Hess,19 Ms. Hess pled guilty to third degree retail fraud for shoplifting clothes and received a 12-month probation under HYTA. A condition of Ms. Hess’s probation prohibited her from possessing or using marijuana. After she was charged with violating her probation by testing positive for marijuana, Ms. Hess moved to dismiss the violation and amend her probation to allow her to lawfully possess and use marijuana in compliance with MRTMA. The district court denied her motion and revoked her HYTA probation, and the circuit court denied her leave application. The Court of Appeals granted leave to appeal and affirmed the district court’s decision.

The Court of Appeals held that even though Ms. Hess’s conviction had not violated MRTMA and did not involve a violation of the Motor Vehicle Act, the trial court correctly prohibited her from possessing or using marijuana as a condition of probation. The Court explained that because MCL 771.3(1)(a) requires courts to prohibit the violation of United States law as a probation condition, the condition was lawful and mandatory.

According to the Court, while “[u]sing recreational marijuana may be permissible in Michigan, but it is still prohibited by federal law,” because 21 USC 844(a) “states, in relevant part, ‘[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice ....’ “20 

The tension between the Michigan precedent considering MRTMA and the MMMA 

Mr. Lopez-Hernandez and Ms. Hess have sought leave to appeal from the Court of Appeals’ opinions in their respective cases, and their applications remain pending as of the date of this publication. 21 Because the opinions in both cases were published, they constitute binding precedent. They will continue to dictate the law in Michigan unless they are superseded by statute or overruled by the Michigan Supreme Court. Although far from certain, both decisions’ public interest and potential impact increase the likelihood that the Supreme Court will review one or both.

The decision in Hess is broader in scope than Lopez-Hernandez because it held that courts must prohibit recreational marijuana use as a condition of probation, regardless of the sentencing offense. In contrast, Lopez-Hernandez only held that such restrictions were permissible when the sentencing offense involved a violation of MRTMA. 

The Court of Appeals’ analysis in Hess does not appear to be reconcilable with its analysis in Thue. In Thue, the Court held that the MMMA supersedes MCL 773(1)(a) to the extent that it permits courts to prohibit MMMA-compliant possession and use of marijuana as a probation condition. Conversely, Hess held that MCL 773(1)(a) supersedes MRTMA and requires courts to prohibit MRTMA-compliant possession and use of marijuana whenever a defendant is sentenced to probation. Hess appeared to distinguish Thue by suggesting that the possession of lawfully prescribed marijuana does not violate federal law. But both the United States Supreme Court and Michigan Supreme Court have held that federal law makes no such distinction. 

 “[B]y characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses” and “designates marijuana as contraband for any purpose.” 22 While MCL 333.26424(a) grants immunity for the MMMA-compliant possession and use of medical marijuana by qualifying patients, the federal Controlled Substances Act provides “no such immunity. Rather, it makes it ‘unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.’” 23 The only exception to this prohibition is for research projects approved by the federal government.”24 

Because federal law does not distinguish between recreational and medicinal marijuana possession or use, and because the statutory language granting immunity for MRTMA- and MMMA-compliant marijuana possession and use is essentially indistinguishable, it is difficult to reconcile the analyses in Hess and Thue. Conflicts like this would garner the Court’s attention even without significant public interest. 

Although the Court of Appeals’ analysis in Lopez-Hernandez was rendered largely superfluous by its broader holding in Hess, it is far from inconsequential. Lopez-Hernandez’s more limited holding—that crimes that involve violations of MRTMA may be punished through the forfeiture of MRTMA-based privileges—raises several significant questions. For instance, if the loss of privileges under MRTMA is predicated on a conviction that entails a violation of MRTMA, how can a defendant enter an intelligent plea to such offenses without being informed of this consequence? How can such forfeitures be based on judicial findings of fact, rather than a unanimous jury verdict? And do licensed medical marijuana users who violate the MMMA also forfeit the protections granted to them by the MMMA? 

1 MCL 333.26424(a); MCL 333.27955(1).
2 MCL 333.26424(a).
3 MCL 333.26427(1)(e).
See, e.g., People v Boright, unpublished per curiam opinion of the Court of Appeals, issued February 16, 2006 (Docket No. 256225); In re Smith, unpublished per curiam opinion of the Court of Appeals, issued June 20, 2006 (Docket No. 2661147); In re Monroe, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2006 (Docket No 269996). 
5 People v Howard, unpublished per curiam opinion of the Court of Appeals, issued August 5, 2014 (Docket No 312267).
6 People v Magyari, unpublished per curiam opinion of the Court of Appeals, issued January 12, 2017 (Docket No 327798). 
7 People v Magyari, unpublished per curiam opinion of the Court of Appeals, issued January 12, 2017 (Docket No 327798). 
8 Id. at 2, quoting MCL 771.3(3).
People v Thue, 336 Mich App 35, 47 (2021).
10 Id. 
11 Id. 
12 Id. at 48. 
13 Id. at 48.
14 People v Lopez-Hernandez, Mich App_ (2024) (Docket No 367731).
15 Id
16 Id., citing MCL 257.625(3) and MCL 333.27954(1)(a). 
17 People v Koon, 296 Mich App 223 (2012).
18 Id. at 230, citing MCL 333.26427(b)(4) and MCL 257.625(8).
19 People v Koon, 494 Mich 1, 7 (2013).
20 People v Hess, _Mich App_ (2024) (Docket No 366148).
21 Id., quoting 21 USC 844(a) (alterations in original). 
21 People v Lopez-Hernandez (Docket No. 167529); People v Hess (Docket No. 167895).
22 Id.
23 Ter Beek v City of Wyoming, 495 Mich 1, 9 (2014), quoting 21 USC 841(a)(1) (alterations in original).
24 Id. at 9 n 4, citing 21 USC 823(f) and United States v. Oakland Cannabis Buyers’ Coop, 532 US 483, 490 (2001).

Steven Helton
Research & Training Attorney, CDRC