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People v. Cook

Court of Appeals of Michigan

March 22, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DANA LYNN COOK, Defendant-Appellant.

          St. Clair Circuit Court LC No. 16-001652-FH

          Before: Murray, P.J., and Cavanagh and Fort Hood, JJ.

          Murray, P.J.

         I. INTRODUCTION

         This matter is before the Court on remand from our Supreme Court, which directed this Court to consider, as on leave granted, "the following issues: (1) whether the defendant's plea was conditional and reserved her right to appeal, (2) whether the defendant waived appeal of the trial court's decision denying her an evidentiary hearing under Section 8 of the Michigan Medical Marihuana Act [(MMMA)], MCL 333.26421 et seq., if her guilty plea was not conditional, and (3) if the defendant has preserved her right to appeal, whether the trial court erred in denying defendant a Section 8 evidentiary hearing." People v Cook, 501 Mich. 857, 858 (2017). We affirm defendant's conviction and conclude that (1) defendant's plea was not conditional, a fact that defendant admits, (2) defendant waived the right to appeal the trial court's denial of an evidentiary hearing under Section 8 of the statute, MCL 333.26428, and (3) we are precluded from resolving the third issue on remand because, as noted under (2), the issue was waived.

         II. FACTS AND PROCEEDINGS

         After the St. Clair Circuit Court denied her motion seeking an evidentiary hearing pursuant to Section 8, the affirmative defense provision of the MMMA, defendant pleaded guilty to operating a motor vehicle with the presence of marijuana[1] in her body, MCL 257.625(8).

         The prosecutor initially charged defendant with one count of operating while intoxicated, third offense, which is a felony in violation of MCL 257.625(1) and (9)(c), and one count of misdemeanor possession of marijuana, MCL 333.7403(2)(d). Defendant, represented by counsel, appeared for a plea proceeding on September 19, 2016. However, a plea agreement was not reached, and the trial court was informed that a laboratory report was now available revealing that defendant's blood contained 14 nanograms per milliliter (ng/ml) of tetrahydrocannabinol (THC). Defendant's counsel explained that he intended to file a motion under Section 8 which provides, in relevant part:

(a) Except as provided in section 7(b), a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;
(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and
(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a). [MCL 333.26428.]

         According to the prosecution, Section 7(b)(4) of the MMMA, MCL 333.26427(b)(4), which is excepted from the defenses set out in Section 8, does not permit anyone to operate a motor vehicle while "under the influence of marihuana." As a result, the prosecutor argued that the Section 8 defense was only applicable to Count II of the information, the misdemeanor possession charge.

         Although defense counsel agreed with this position, he nonetheless explained that without the Section 8 defense, the prosecutor could prove the felony charge by simply showing that defendant had any amount of marijuana in her body while she was driving. The trial court determined that it would not hold a Section 8 hearing with regard to the charge of operating while intoxicated, but would hold such a hearing with regard to the misdemeanor possession charge.

         The day after this hearing, the prosecutor filed an amended information, replacing the first charge of operating while intoxicated with a charge of operating a vehicle with the presence of a controlled substance in her body, third offense, in violation of MCL 257.625(8) and (9)(c), and left the second charge of possession of marijuana unchanged.

         Defendant subsequently filed a motion requesting an evidentiary hearing so that she could prove her Section 8 defense to both charges. Defendant argued that the Section 8 defense applied to any criminal charge involving marijuana, and that the defense was applicable regardless of whether she had a valid patient card at the time of the offense. Defendant agreed that the defense was subject to MCL 333.26427(b)(4), and that under MCL 333.26427(b)(4), the MMMA does not permit anyone to "[o]perate, navigate, or be in actual physical control of any motor vehicle . . . while under the influence of marihuana." Thus, according to defendant, the purpose of raising the defense was to heighten what the prosecutor would have to prove. Defendant explained that if she successfully proved her Section 8 defense, it would be insufficient for the prosecutor to prove that she had ...


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