STATE OF MICHIGAN

IN THE DISTRICT COURT FOR THE COUNTY OF BENZIE

THE PEOPLE OF THE STATE OF MICHIGAN
Plaintiff
vs.
OLAF SAGNER JOHNSON
Defendant
File No. 14-235-SM

BRIEF IN SUPPORT OF MOTION TO DISMISS
STATEMENT OF FACTS
On July 15, 2014 defendant was the operator of a motor vehicle on US-31 near
Love Road in Benzonia Township, Benzie County, Michigan. He was stopped by
Michigan State Police officers Kelley and Roy after they noticed the vehicle was missing
the entire passenger side tail light. Trooper Kelley states, in his report that, upon making
contact with defendant, he detected the odor of marihuana. He asked defendant if he was
a medical marihuana card holder and defendant told him he was. Defendant further told
him that he had some medical marihuana in the trunk of the vehicle.
The troopers conducted a search of the vehicle due to the odor of marihuana they
had detected. In the course of the search they found four suspected marihuana roaches
wrapped in brown papers in the backseat ashtray on the driver's side the vehicle, a
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small plastic baggie containing suspected marihuana on the driver's side floorboard near
the center of the vehicle, and two small haggles containing suspected marihuana in the
trunk of the vehicle. The two baggies found in the trunk were not enclosed in a case.
The items found were taken into evidence and placed into three (3) Michigan State Police
heat-sealed evidence bags. The total weight, including the heat-sealed evidence bags,
was 85 grams. Each heat-sealed evidence bag weighs 22 grams_ Therefore, the amount
of usable marihuana found in defendant's vehicle is not greater than 19 grams.
APPLICABLE LAW AND ARGUMENT
MCL 750.474(1) states that:
A person shall not transport or possess usable marihuana as defined in
section 26423 of the public health codc...in or upon a motor
vehicle...unless the usable marihuana is I or more of the following:
(a) Enclosed in a case that is carried in the trunk of the vehicle.
(b) Enclosed in a case that is not readily accessible from the interior of the
vehicle in which the person is traveling does not have a trunk.
A. MCL 750.474 is superseded by MCL 333.26421 et. seq. (MMMA)
The Michigan Supreme Court, in People v Koon, 494 Mich 1, 932 NW2d
724 (2013), affirmed the language of MCL 333.26427(e) by stating "[w]hen the
MMMA conflicts with another statute, the MMMA provides that NH 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".

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(1) Is in possession of a registry identification card; and
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T he language of MCL 750.474 clearly conflicts with the M M M A . A s a
consequence of this conflict, MCL 750.474 is superseded by the M M M A and does
not apply to the medical use of marihuana. "M edical use" is defined in
MCL
333.26423(f).
A mong the list of protected activities in this definition is "possession"
and "transportation".
T he defendant was not in possession of an amount of marihuana that exceeded the
legal amount and was otherwise in compliance with the M M M A and its provisions.
T herefore, as a matter of law, defendant is entitled to the protections of the M M M A ,
which protections dictate that this case must be dismissed.
B. Defendant is immune from prosecution and arrest because he fully complied
with the requirements of MCL 333.26424.
M C L 333.26424 states, in relevant part, that:
(a) A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege...provided that the qualifying patient
possesses an amount of marihuana that does not exceed 2.5 ounces of usable
marihuana...
(d) T here shall be a presumption that a qualifying patient or primary
caregiver is engaged in the medical use of marihuana in accordance with this
act if the qualifying patient or primary caregiver:
(2) Is in possession of an amount of marihuana that does not exceed the
amount allowed under this act. The presumption may be rebutted by evidence
that conduct related to marihuana was not for the purpose of alleviating the
qualifying patient's debilitating medical condition, in accordance with this act.
The facts of this case show that defendant possesses a medical marihuana registry
identification card and was not in possession of an amount of marihuana that exceeded
the amount a patient is allowed to possess under the MMMA. This creates immunity
from prosecution unless the presumption of medical use has been rebutted. People v
McQueen, 493 Mich 135, 828 NW2d 644 (2013). The instant case does not present any
facts to rebut the medical use presumption. Therefore, the presumption is the defendant
was engaged in the medical use of marihuana in accordance with the MMMA.
The charge against defendant must be dismissed because a "qualifying patient
who has been issued and possesses a registry identification card shall not be subject to
arrest, prosecution or penalty in any manner. _.provided that the qualifying patient
possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana."
See MCL 333.26424(a). The clear language of the MMMA provides immunity from
prosecution as long as the two conditions of MCL 333.26424(a) are satisfied. The
defendant is being prosecuted for violating MCL 750.474. Therefore, as long as the
defendant satisfies MCL 333.26424(a) he cannot be prosecuted.
C. Defendant is entitled to dismissal under the affirmative defense of MCL
333.26428.
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In addition to the plain and unambiguous immunities defendant is entitled to
under the MMMA, defendant is entitled to assert a defense under MCL
333.26428. The Michigan Supreme Court, in People v Kolanek, 491 Mich 382,
817 NW2d 528 (2012), stated that a patient may assert the medical purpose for
using marihuana as a defense to "any prosecution involving marihuana". Section
8(b) of the MMMA provides that a person "may assert [this defense] in a motion
to dismiss, and the charges shall be dismissed following an evidentiary hearing
where the person shows the elements listed in subsection (1)". People v
Kolanek, supra. See also MCL 333.26428. Defendant is therefore entitled to an
evidentiary hearing in which the case will be dismissed if he satisfies the three
elements enumerated within MCL 333.26428(a) (1)-(3).
It is not in dispute that at the time of the incident defendant did not possess
an amount of medical marihuana that was more than reasonably necessary for the
purpose of his medical use.
D. MCL 750.474 is unconstitutional.
Article IV, Section 25 of the Michigan Constitution provides that "no law
shall be revised, altered, or amended by reference to its title only. The section or
sections of the act altered or amended shall be reenacted and published at length."
It is evident that MCL 750.474 represents an effort to amend, alter or revise the
Michigan Medical Marihuana Act. By choosing to amend the penal code instead
of the Michigan Medical Marihuana Act, the Michigan legislature violated the
constitution. This statute is therefore unconstitutional.
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Section 7 of the Michigan Medical Marihuana Act, being 333.26427(e)
states that "all other acts and parts of acts inconsistent (emphasis added) with this
act do not apply to the medical use of marihuana as provided by this act" MCL
750.474 was enacted after the MMMA and was intended to criminalize certain
methods of transportation of legal marihuana. MCL 333.7106 provides, under
subsection (e), that "medical use" means the acquisition, possession,...transfer, or
transportation of marihuana....The MMMA provides that you can transport
marihuana without restrictions. MCL 750.474 is therefore inconsistent with the
MMMA. Further, it amends the MMMA by reference. For these two reasons, the
statute is unconstitutional.
E. Other Michigan District Court Judges have ruled that MCL 750.474 is
unconstitutional.
The issues presented in the instant case have been ruled upon by other
Michigan District Courts. In the case of People v Nicholas Edward Barber, File No.
14-0098-SM, the Honorable Thomas P. Boyd, District Judge, granted defendant's motion
to dismiss on the following grounds: (1) MCL 750.474 is inconsistent with the Medical
Marihuana Act as it limits transportation, a right granted by the Medical Marihuana Act,
(2) a patient may assert the medical purpose for using marihuana as a defense to any
prosecution involving marihuana, and the attempt by MCL 750.474 to nullify that
language is ineffective, and (3) MCL 750.474 is unconstitutional because it represents an
effort to amend, alter or revise the Medical Marihuana Act by reference, contrary to
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Article IV, Section 25 of the Michigan Constitution. A transcript of the hearing on
Motion to Dismiss is attached hereto and made a part hereof as Exhibit A.
The court in People v David Earle Porter, Crawford County District Court,
Case No. 14-10322-SM-1, made the following findings: (1) MCL 750.474 is a direct
modification of the Michigan Medical Marihuana Act and, since the legislature did not do
so under the MMMA itself by re-enacting and re-publishing the act, it is unconstitutional.
The court stated that "here, the amendments to the penal code attempt to modify the
Michigan Medical Marihuana Act by restricting actions specifically allowed for under the
MMMA. This attempt to revise and later is done under the auspices of the penal code
rather than re-publishing of the MMMA. Such an approach is unconstitutional." , and (2)
"even if MCL 750.474 were not unconstitutional the Improper Transportation statute
would still be inconsistent with the MMMA, and MMMA would supersede MCL
750.474". A copy of the Porter court's opinion is attached hereto and made a part hereof
as Exhibit B.
The court in People v Molly Lynn White, Case No. 14-SM-000163, in Delta
County, also found that MCL 750.474 is inconsistent with the MMMA and that its
enactment was in violation of the Michigan constitution. The court further specifically
adopted the reasoning of Judge Boyd in the case of People v Nicholas Edward Barber. A
copy of the court's written opinion is attached hereto and made a part hereof as Exhibit
C.
Defendant is aware that the three district court cases cited herein is not binding on
this court. However, defendant believes that the findings, analyses and rulings contained
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in their opinions should be adopted by this court as they represent a correct application of
the law.
CONCLUSION
MCL 750.474 is superseded by MCL 333.26427(c). Defendant has
demonstrated that he is immune from prosecution under MCL 333.26424. He is
therefore entitled to a hearing in which to assert a defense under MCL 333.26428.
Because MCL 750.474 attempts to revise, alter or amend the MMMA by
reference, it is unconstitutional. For these reasons, the court should dismiss the
charge against defendant.
WHEREFORE, defendant requests that this court dismiss the charges
against him or, in the alternative, grant an evidentiary hearing as required under
MCL 333.26428.
Dated: August 25, 2014.

Attorney for Defendant
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