Michigan Supreme Court asked to rule on marijuana use and probation

The Michigan Supreme Court will soon decide whether prohibiting marijuana use while on probation is legal.

The Michigan Supreme Court heard oral arguments March 11 in the case of People of MI v. Danielle Heaven-Leah Hess. At issue is whether the use of marijuana can legally be prohibited while a person is on probation after cannabis was legalized for recreational use in Michigan in 2018.

In August 2021, Hess pleaded guilty to one count of third-degree retail fraud, and was sentenced to one year of probation. The probation order prohibited Hess from using or possessing marijuana, and required that she submit to marijuana drug screenings. On two occasions in 2022, she tested positive for marijuana, resulting in two violations of her probation.

Hess pleaded guilty to the first probation violation but following the second violation, she asked the district court to amend the terms of her probation to allow the use and possession of marijuana, to remove her first violation and to dismiss her second violation, arguing that the condition of prohibiting marijuana use during probation violated state law (the Michigan Regulation and Taxation of Marihuana Act or MRTMA), which allows for recreational cannabis use.

What was said in oral arguments

Emma Lawton, an assistant defender at the State Appellate Defender Office who is representing Hess, said that MRTMA provides broad coverage.

She gave a hypothetical example: “Does a person violate their probation by lawfully working at a dispensary? Because, in the eyes of the federal government, they are distributing a Schedule I controlled substance. The answer is no. …”

Michigan Supreme Court Chief Justice Megan Cavanagh asked why, if probation is never required, the court should not be looking at this issue this way: “There is any number of examples of lawful conduct that somebody may choose to forgo in order to receive probation as opposed to a prison sentence including legal alcohol use, including association with somebody, including the right to drive a vehicle. … So why would agreeing to forgo otherwise legal conduct under MRTMA be any different?”

Lawton responded that it depends if the request to forgo something is lawful. The condition of prohibiting marijuana use is unlawful, she argued, because the law that legalized marijuana specifically says there will not be any penalties imposed — and there will not be any privileges revoked — for the lawful use of marijuana. Alcohol use, for example, doesn’t have those same protections under state law, she said.

Thomas Ginster, the Montcalm County prosecuting attorney who is representing the state, said probation is a privilege and otherwise lawful conduct can be a valid term of probation if rationally and reasonably related to the rehabilitation of the offender.

Cavanagh asked how requiring Hess to refrain from marijuana use as a condition of probation relates to the case.

“The fact that this is rationally related and reasonably related was never contested,” Ginster said. “There is a strong and undeniable correlation … between criminal activity and illicit substances.”

Previous high court rulings on other marijuana-related issues

This is not the first case the Michigan Supreme Court has taken up related to marijuana since it was legalized for recreational use.

The court last year ruled that the smell of marijuana alone is no longer sufficient probable cause for police to search a vehicle in light of its legalization, overturning a 25-year-old precedent.

Meanwhile, earlier this month, the U.S. Supreme Court took up the issue of whether someone’s use of marijuana and other drugs makes them too dangerous or irresponsible to have a gun.

A decision in People of MI v. Danielle Heaven-Leah Hess is expected by the end of the term, which is July 31, John Nevin, a spokesperson for the Michigan Supreme Court, said in an email.