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Using Medical Marihuana While On Bond for DUI

If you are charged with virtually any alcohol and drug related driving offenses you will be entitled to bond.[i] This includes the most serious intoxicated driving offenses such as those involving death or serious injury.

This does not mean that the Michigan court cannot keep close tabs on you while you are on bond.  The court can impose many different conditions on your bond, such as periodically reporting to a monitoring agency, not using alcohol, participate in therapy or AA, surrender your license or passport, not leave the state, give up your guns, and regularly test for the use of alcohol or drugs.

The question is whether or not a Michigan judge can order you to not use marihuana if you have a valid medical marihuana card.  Unfortunately, there is no simple yes or no answer to this complicated question.

Our law categorizes both legal and illegal drugs according to various criteria, such as their overall perceived dangerousness, propensity to cause addiction and whether or not they have a medical purpose.  The United States code is the model used by most states.

Both the federal code and Michigan statutes categorize marihuana on “schedule one.”[ii]  This is the schedule that includes dangerous drugs such as heroin and cocaine, and generally includes drugs that have no recognized medical purpose.

This statute is obviously in conflict with the Michigan Medical Marihuana Act (hereinafter: “MMMA”)[iii] and this is the essential issue as it relates to the use of medical marihuana while on bond.

The governing court rule says that a judge may order a person accused of intoxicated driving to not use alcohol or illicitly use any controlled substance.[iv]  Thus, it is the word “illicitly” that ultimately becomes subject to interpretation.

A Michigan judge is given wide latitude in setting bond. Because marihuana remains on the federal and state schedule one it is still illegal.  The question is whether or not a card holder on bond using marihuana as medication is using the controlled substance illegally.

At the election held on November 4, 2008, The People of the State of Michigan, by a 63 percent majority of our voting citizens, exercised their constitutionally guaranteed initiative power and enacted the MMMA.

The MMMA provides a comprehensive set of legal protections systematically exempting an entire class of people (medical purpose users, their providers, assistants, and innocent bystanders) from the application of state law prohibitions against marijuana use, possession, and cultivation. The People, acting as a legislature, exonerated medicinal users of marijuana in enacting the MMMA.

For a cardholding, registered medicinal patient, the MMMA represents a broad immunity from penalty of any kind for their medical use of marijuana.[v]  The problem is that a bond condition is not considered a penalty.

So, in order to receive this protection, you would have to use marihuana, get caught, and then face the court at a hearing to revoke your bond.  This is probably not a good idea.  If you are ordered not to use marihuana, even medically, while on bond, your best bet is to live with this restriction.  Otherwise, you risk going to jail while your case is pending.

[i] Michigan Rules of Criminal Procedure, Rule 6.106 Pretrial Release.


[iii] MCL §333.26421, et seq.

[iv] Michigan Rules of Criminal Procedure, Rule 6.106 Pretrial Release.

[v] MCL 333.26424(4)(a).

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Patrick Barone

Patrick Barone

Patrick T. Barone is the Founding Partner and CEO of The Barone Defense Firm with offices throughout Michigan. Mr. Barone is the author of two books on DUI defense including Michigan DUI Law: A Citizen's Guide and the well respected two volume treatise Defending Drinking Drivers (James Publishing),a chapter in Defending DUI Vehicular Homicide Cases, 2012 ed. (Aspatore Books), an adjunct professor at the Thomas M. Cooley Law School, and a graduate of the Gerry Spence Trial Lawyer’s College. Mr. Barone has an “AV” rating from Martindale-Hubbell and since 2009 has been included in America’s Best Lawyers.

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