Michigan Supreme Court Overrules People v Derror; 11-Carboxy-THC is
not a Derivative of Marijuana
The victim was walking in the paved portion of a 5 lane road. His BAC
was .268. It was dark and raining. The defendant hit the victim and left the
scene. The trial judge precluded admission of any evidence regarding the
victim’s intoxication. The defendant was convicted of operating with the
presence of a schedule 1 controlled substance causing death, leaving the scene
of an accident resulting in death, and OWI, 2nd offense.
The defendant appealed, claiming that evidence of the victim’s intoxication
should have been admitted on the issuance of causation, and that the presence of
11-carboxy-THC in his blood did not constitute a schedule 1 controlled
substance.
In People v Derror, 475 Mich 316 (2006) the Michigan Supreme Court
ruled in a 4-3 decision that 11-carboxy-THC, a metabolite of marijuana, is
included in the statutory definition as a derivative of marijuana. Accordingly,
the Derror majority upheld the defendant’s conviction for operating
with a schedule 1 controlled substance in her system based upon the presence of
11-carboxy-THC in her blood. Justice Hathaway joined the three
Derror dissenters in this case to overrule Derror.
The majority held that 11-carboxy-THC is not a derivative of marijuana, and
therefore is not a schedule 1 controlled substance. Accordingly, they reversed
this defendant’s conviction for operating with the presence of a schedule 1
controlled substance causing death. Justices Young, Markman and Corrigan
dissented from this holding.
On the other issue, a unanimous court held that evidence of the victim’s
extreme intoxication in this case should have been admitted to support the
defendant’s claim that the victim’s intoxication constituted a superseding cause
of his death. They emphasized that intoxication evidence may not be relevant or
admissible in all cases.
They emphasize, however, “That evidence of a victim’s intoxication may not be
relevant or admissible in all cases. Indeed, the primary focus in a criminal
trial remains on the defendant’s conduct. Accordingly, any level of intoxication
on the part of a victim is not automatically relevant, and the mere consumption
of alcohol by a victim does not automatically amount to a superseding cause or
de facto gross negligence.”
Instead, under MRE 401, a trial court must determine whether the evidence
tends to make the existence of gross negligence more probably or less probable
than it would be without the evidence and, if relevant, whether the evidence is
inadmissible under the balancing test of MRE 403.
People v. Feezel, case no. 138031, decided June 8,
2010.
