Court Rulings

A panel on the 9th US Circuit Court of Appeals has upheld the marijuana cultivation and distribution conspiracy convictions of California Dr. Marion "Mollie" Fry and her partner, Dale Schafer. Fry and Schafer, both medical marijuana patients, had been sentenced to five years in federal prison in the case, but were free on bail pending the appeal. There is no word yet on when they will have to report to prison or whether they will try further appeals.

In a decision that cuts against the grain of the European Union's laws governing free markets and the free movement of people within its borders, the EU Court of Justice has upheld the Dutch border town of Maastricht's bid to ban foreigners from its cannabis coffee shops. The ruling came last Friday.

downstairs of a coffee shop, Maastricht (courtesy Wikimedia)

The move prompted a legal challenge from Marc Josemanns, a coffee shop owner and chairman of the Association of Official Maastricht Coffee Shops. He argued before the Dutch council of state that the ban contravenes EU legislation on the free movement of citizens, goods, and services within the EU. The council asked the EU Court of Justice to interpret EU law, which it will then incorporate in its ruling later this year.

EU Court of Justice Advocate General Yve Bot found that drugs do not count as regular, legal goods because they are against the law. "Narcotics, including cannabis, are not goods like others and their sale does not benefit from the freedoms of movement guaranteed by European Union law, inasmuch as their sale is unlawful," he said. But marijuana does "come under internal market rules" in cases of medical or scientific use, he specified.

Since Maastricht was correct to view drug tourism as "a genuine and sufficiently serious threat to public order," Bot said, restricting foreigners from coffee shops "constitutes a measure necessary to protect the residents of the municipality from trouble."

Bot even went a step further, saying that pot heads descending on the Netherlands to get stoned and enjoy themselves was itself a threat to EU security. "Drug tourism, insofar as it conceals, in actual fact, international trade in narcotics and fuels organized criminal activities, threatens even the European Union's internal security," he said.

Of course, if the EU just legalized the drug trade, that would eliminate drug tourism at the Dutch border and deprive organized crime of revenues, but this appears to be too much to ask.

Women who take illegal drugs while pregnant cannot be charged with child endangerment crimes for doing so, the Kentucky Supreme Court ruled last Friday. The court held that such prosecutions are unlawful under the state's Maternal Health Act of 1992, which expressly forbids charging women with a crime if they drink or do drugs during pregnancy.

The case is Cochran v. Kentucky, in which Casey County prosecutors charged Ina Cochran with first-degree wanton endangerment after she gave birth to a child who tested positive for cocaine in 2005. Cochran's attorney moved to have the charges dismissed, and a Casey Circuit Court judge agreed, but prosecutors appealed to the state Court of Appeals, which held that the charges could be allowed.

The state Supreme Court overturned the Court of Appeals ruling, arguing that the appeals court had erred both because its decision was intolerably vague and because the Kentucky legislature had expressly held that pregnant women were not to be prosecuted for drug use. "It is the legislature, not the judiciary, that has the power to designate what is a crime," the opinion said.

In passing the Maternal Health Act of 1992, the legislature explicitly stated that "punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care."

The high court cited a similar earlier case it had decided, and that quotation is worth repeating:

"The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wear the prescription lenses she knows she needs to see the dangers of the road?

"The defense asks where do we draw the line on self-abuse by a pregnant woman that wantonly exposes to risk her unborn baby? The Commonwealth replies that the General Assembly probably intended to draw the line at conduct that qualifies as criminal, and then leave it to the prosecutor to decide when such conduct should be prosecuted as child abuse in addition to the crime actually committed.

"However, it is inflicting intentional or wanton injury upon the child that makes the conduct criminal under the child abuse statutes, not the criminality of the conduct per se. The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome. The 'case-by-case' approach suggested by the Commonwealth is so arbitrary that, if the criminal child abuse statutes are construed to support it, the statutes transgress reasonably identifiable limits; they lack fair notice and violate constitutional due process limits against statutory vagueness."

Somebody ought to tell them in South Carolina, where the courts have upheld the prosecution and imprisonment of pregnant women who used drugs.

The Michigan Supreme Court Tuesday ruled that it is not illegal to drive while having marijuana metabolites in the body, reversing a 2006 decision by a more conservative version of the court. Marijuana metabolites are not a controlled substance under state law, and their mere presence thus cannot be the basis of a conviction under the state's drugged driving law, the court held.

The court ruled that a Washtenaw County jury should have been allowed to hear evidence the victim was drunk, remanding the case back to circuit court. But in ruling that marijuana metabolites are not a controlled substance, the court invalidated what was in effect a per se zero tolerance drugged driving law that allowed for people to be convicted of driving while impaired when they were not actually shown to be impaired.

"We hold that 11-carboxy-THC is not a schedule 1 controlled substance under MCL 333.7212 [controlled substances act] and, therefore, a person cannot be prosecuted under MCL 257.625(8) [drugged driving act] for operating a motor vehicle with any amount of 11-carboxy-THC in his or her system," read the opinion.

The opinion, largely a demolition of the previous Supreme Court's 2006 ruling in People v. Derror that marijuana metabolites are a controlled substance, thus allowing for drugged driving convictions based solely on their presence, noted that Michigan is now a medical marijuana state and that allowing Derror to stand would unfairly impact medical marijuana patients.

Under Derror, Justice Corrigan wrote for the majority, "Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person's blood for 18 hours and in a person's urine for up to 4 weeks."

It's not just about medical marijuana patients, the opinion suggested: "Thus, under Derror, an individual who only has 11-carboxy-THC in his or her system is prohibited from driving and, at the whim of police and prosecutors, can be criminally responsible for choosing to do so even if the person has a minuscule amount of the substance in his or her system. Therefore, the Derror majority's interpretation of the statute defies practicable workability given its tremendous potential for arbitrary and discriminatory enforcement."

It is neither fair nor just nor in the interest of public safety to charge people with drugged driving who aren't impaired. Finally, there is a Michigan Supreme Court that recognizes this.