No Soup for you if you are on probation

Michigan may have freed the weed, but cannabis’s status as controlled substance federally means its use during court-ordered probation can still be considered a violation of the prescribed terms, the Court of Appeals unanimously ruled Thursday.

In a published per curiam opinion released Friday, the panel in People v. Hess (COA Docket No. 366148) affirmed the Montcalm Circuit Court’s denial of a motion to amend the terms of the defendant’s probation, which also sought the nullification of her probation violations for marijuana use.

The decision was affirmed by Judge Brock Swartzle, Judge James Redford and Judge Kathleen Feeney.

The case centers around the defendant’s pleading guilty to one count of third-degree retail fraud, which landed her a 12-month probation sentence under the Holmes Youthful Trainee Act. The order of probation prohibited the defendant from using or possessing marijuana and required drug screening throughout the duration of her sentence.

She tested positive for marijuana twice, resulting in two violations of her probation terms. The defendant pleaded guilty to the first violation, but she moved for an amendment of her sentence following the second violation.

The defendant asked the court to allow the use and possession of marijuana, to vacate her first violation and to dismiss the second. The crux of her argument was that the prohibition violated the plain language of the Michigan Regulation and Taxation of Marijuana Act.

She also cited People v. Thue, in which the Court of Appeals held that a probation condition prohibiting a probationer’s Michigan Medical Marijuana Act-compliant use of medical marijuana was unlawful. The defendant argued that her case was different than Thue because her probation was not marijuana violation and was an issue of first impression for the court.

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