STATE OF MICHIGAN IN THE 85TH DISTRICT COURT FOR THE COUNTY OF BENZIE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, File No. 14-235-SM Hon. John D. Mead v OLAF JOHNSON, Defendant. OPINION AND ORDER GRANTING DEFENDANT'S. MOTION To DISMISS Ata session of said Court, held in the Distrig Courtroom, Beulah, Michigan, on the /” day of January, 2015. Defendant, Olaf Sagner Johnson, brings the instant Motion to Dismiss, and requests that the Court dismiss the charge of Improper Transportation of Medical Marihuana in a Vehicle, MCL 750.474. The specific allegation is that, on or about July 15, 2014, in Benzonia Township, Benzie County, Michigan, Defendant “did transport or possess usable marihuana, as defined in MCL 333.26423, in or upon a motor vehicle, and the marihuana was not enclosed in a case that erior of the was carried in the trunk of the vehicle or not readily accessible from th vehicle[.]” The first issue presented by Defendant is whether MCL 750.474 is superseded by the Medical Marihuana Act (“MMA”). The Court opines that MCL 750.474 is, in fact, superseded by the MMA. FILED 85TH DISTRICT COURT + JAN 1 4 2015 BENZIE COUNTY BEULAH, MICHIGANMCL 333.26427(e) pertinently provides, “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.” It appears to this Court that the MMA addresses the issue of transportation of medical, marihuana. MCL 333.26427 pertinently provides: {a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act (b) This act shall not permit any person to do any of the following: . (2) Possess marihuana, or otherwise engage in the medical use of marihuana: (A) in a school bus; ... (3) Smoke marihuana: (A) on any form of public transportation; or .. (4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana. Our Supreme Court has noted that the MMA is “an ‘act complete in itself.” People v Koon, 494 Mich 1, n22 (2013). By enacting MCL 750.474, effective in December of 2012, the Michigan Legislature created a statute that conflicts with the “complete” language contained in the MMA. Accordingly, MCL 750.47 superseded by the MMA, and this case should be dismissed. Secondarily, Defendant asserts that MCL 750.474 is unconstitutional. The Court agrees. Art. IV, §25, of the Michigan Constitu 1n of 1963 pertinently provides, “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 re-enacted and published at length.” With the enactment of MCL 750.474, the Legislature clearly was attempting to amend, by reference, MCL 333.26427. It appears to this Court that §27 of the MMA should have been “re-enacted and published at length” to include the language put forth in MCL 750. 474. > i COURT STH DISTRICT SAN 14 2015 re COUNTY SRA, RICHIGANLegislature has the opportunity to legislate medical marihuana. However, it decided to place the issue squarely in the hands of the voting public.” This Court is further of the opinion that MCL 750.474, at its roots, appears to be good public policy. That being said, it is unconstitutional, and it conflicts with and is superseded by the MMA. Finally, and as a matter of procedure, MCL 333.26428(b) provides, “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).” Defendant did present a medical marihuana card at the time of the parties’ oral arguments on this motion, and said card appeared to be valid at the time the purported offense occurred. However, the Court could still have made a determination on the legal challenges to MCL 750.474 without an evidentiary hearing. Had Defendant not possessed a valid card, the Court is of the belief that the People would have charged Defendant with another charge, such as Possession of Marihuana. NOW THEREFORE; IT IS ORDERED that Defendant's Motion to Dismiss be and is GRANTED, and the charge of Improper Transportation of Medical Marihuana in a Vehicle be and is DISMISSED. John D. Mead, District Judge "This author, it should be noted, voted against the MMA Proposal. However, the voters have spoken, and the MMA must be enforced as written, FILED FILED 85TH DISTRICT COURT JAN 4 4 2015 3 BENZE COUNTY BEULAH, MICHIGAN