Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  October 29, 2010                                                                        Marilyn Kelly,
                                                                                              Chief Justice

  137268                                                                           Michael F. Cavanagh
                                                                                     Maura D. Corrigan
                                                                                    Robert P. Young, Jr.
                                                                                    Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Diane M. Hathaway
            Plaintiff-Appellant,                                                   Alton Thomas Davis,
                                                                                                   Justices
  v                                                      SC: 137268
                                                         COA: 273333
                                                         Lapeer CC: 05-008462-FH
  MATTHEW JOSEPH SOARES,
             Defendant-Appellee.
  _________________________________________/

          By order of May 27, 2009, the application for leave to appeal the July 24, 2008
  judgment of the Court of Appeals was held in abeyance pending the decision in People v
  Feezel (Docket No. 138031). On order of the Court, the case having been decided on
  June 8, 2010, 486 Mich 184 (2010), the application is again considered and, pursuant to
  MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the
  Court of Appeals and we REMAND this case to the Court of Appeals for reconsideration
  in light of Feezel.

        MARKMAN, J. (concurring).

         I concur with the Court’s order remanding to the Court of Appeals for
  reconsideration in light of People v Feezel, 486 Mich 184 (2010). In this case, at the time
  of the fatal accident, the victim was driving a motorcycle with 11-carboxy-THC in his
  blood. This metabolite of marijuana indicates recent ingestion of the drug. Id. at 210. An
  expert testified that the amount of the metabolite in the victim’s blood suggested that his
  reaction time might have been slowed. Evidence was also presented that the victim was
  driving 9-10 miles over the speed limit. In light of these facts, the Court of Appeals
  should determine whether, under the standards set forth in Feezel, “the proofs are
  sufficient to make a question of fact for the jury” on the question of the victim’s gross
  negligence. Id. at 196. While I share the dissent’s concerns about the portion of Feezel
  that overruled People v Derror, 475 Mich 316 (2006), and which has created problems
  for law enforcement, see People v Barkley, ___ Mich ___ (Docket No. 139194, order
  entered 10/22/10), this case involves the application of legal standards articulated in
  Feezel which I supported.
                                                                                         2

      CORRIGAN, J. (dissenting).

        I would grant the prosecutor’s application for leave to appeal to address the
viability and application of this Court’s decision in People v Feezel, 486 Mich 184
(2010), and to consider the ruling of the Court of Appeals here that evidence of 11-
carboxy-tetrahydrocannabinol (THC) in the victim’s blood was relevant evidence.

                         THIS COURT’S FEEZEL DECISION

        The substance 11-carboxy-THC is a metabolite of marijuana indicating recent
ingestion of the drug. Feezel, 486 Mich at 210. In Feezel, this Court concluded that a
defendant may not be found guilty of operating a motor vehicle and causing death with
the presence of a schedule 1 controlled substance in his body, MCL 257.625(4) and (8),
although tests reveal that he had 11-carboxy-THC in his blood at the time of the fatal
accident. Id. at 211-212. In so holding, the Court overruled in part People v Derror, 475
Mich 316 (2006). I joined Justice YOUNG’s dissent with regard to this aspect of the
Feezel opinion because I conclude, as did a majority of the Court in Derror, that 11-
carboxy-THC is a schedule 1 controlled substance as defined by MCL 333.7212(1)(c)
(listing marijuana as a schedule 1 controlled substance) and MCL 333.7106(3) (defining
marijuana to include “every compound” and “derivative” of the plant Cannabis sativa L.).

        The trouble caused by the Feezel decision is worthy of this Court’s serious
attention. Most significantly, State Police officials report that, in the wake of recent
increases in accidents involving drug use, the Feezel opinion “leaves law enforcement
officers in a legal limbo.”1 In the words of Sgt. Christopher Hawkins, legislative liaison
for the State Police, as reported by the Detroit News: “We’re in a frustrating situation”;
“It’s almost like the courts are saying that we can arrest if we find marijuana on you, but
it’s different if we find marijuana in you.” Accordingly, I would grant to consider
whether Feezel was wrongly decided and whether the clear Derror rule—which
acknowledged that all derivatives of THC are schedule 1 substances—in fact defied
practical workability, as the Feezel majority claimed. 486 Mich at 215. In truth, it seems
that Feezel defies practical workability!

      THE RELEVANCE OF 11-CARBOXY-THC IN THE VICTIM’S BLOOD

       The central issue in this case was not whether the defendant had a schedule 1
substance in his blood. The defendant here was intoxicated by alcohol, not marijuana,
when he ran a stop sign at a high rate of speed, causing the victim’s motorcycle to crash
into the defendant’s SUV, killing the victim. The defendant was charged with

1
  Tom Greenwood, “Ruling clouds pot smoking, driving law,” The Detroit News, July
29, 2010, available at <http://detnews.com/article/20100729/METRO/7290387/Ruling-
clouds-pot-smoking--driving-law> (accessed August 30, 2010).
                                                                                             3

manslaughter, MCL 750.321, and operating a vehicle while intoxicated causing death,
MCL 257.625(1) and (4). At issue on appeal was whether 11-carboxy-THC in the
victim’s blood was evidence admissible to prove that the victim was grossly negligent
and, if so, to relieve the defendant of responsibility for proximately causing the death.
Reversing the trial court, the Court of Appeals concluded that this evidence was indeed
admissible. But a separate section of this Court’s opinion in Feezel, which I joined,
clearly requires us to conclude that the trial court reasonably excluded the evidence.

        In Feezel we held that a victim’s intoxication may be relevant to whether the
victim’s gross negligence was a superseding cause of his death. Feezel, 486 Mich at 201-
202. We stressed, however, that such evidence is not relevant or admissible in all cases.
Id. at 202. Gross negligence “means wantonness and disregard of the consequences
which may ensue.” Id. at 195 (citation omitted). “Wantonness,” in turn, means
“‘[c]onduct indicating that the actor is aware of the risks but indifferent to the results’ and
usually ‘suggests a greater degree of culpability than recklessness . . . .’” Id. at 196
(citation omitted).     Mere consumption of an intoxicating substance “does not
automatically amount to a superseding cause or de facto gross negligence.” Id. at 202.
Rather, the trial court must “make a threshold determination” in each case with regard to
whether gross negligence is even in issue; that is, it must determine whether “the proofs
are sufficient to create a question of fact for the jury” on the question of the victim’s
gross negligence. Id. In Feezel, this threshold was reached because the victim’s
observable behavior strongly suggested gross negligence; a witness reported that, when
the victim was hit by the defendant’s car, the victim was walking down the middle of an
unlit road, with his back to oncoming traffic, on a dark rainy night. Id. at 188. Indeed,
the witness, who drove past the victim just before the accident, reported that she did not
see the victim until he was next to her car and that she would not have been able to avoid
him if he had been in her lane of the road. Id. at 189-190. Accordingly, evidence that the
victim was also extremely intoxicated by alcohol was relevant to the overall question
whether he was so grossly negligent that a jury could conclude that the defendant driver
did not proximately cause his death. Id. at 199.

       I cannot conclude that such threshold evidence was present here. Although the
victim may have been driving his motorcycle 9 or 10 miles over the posted speed limit,
no direct evidence was admitted that his behavior was otherwise erratic or dangerous, let
alone that it suggested wantonness beyond recklessness with disregard of the known
risks. Further, although an expert testified that the 17 nanograms per milliliter of 11-
carboxy-THC in the victim’s blood suggested that his reaction time might have been
slowed, the expert could not attest to how intoxicated the victim was; thus the evidence
did not clearly establish, as in Feezel, that the victim was indisputably highly intoxicated.
Accordingly, the trial court did not abuse its discretion in excluding the evidence here.
And, in any event, exclusion was harmless because the defendant ran a stop sign at a high
rate of speed. The victim could not have avoided this accident regardless of his level of
                                                                                                               4

intoxication. Thus, any intoxication could not be said to have been the superseding cause
of the victim’s death. Accordingly, I would grant the prosecutor’s application for leave
to appeal on this issue.

      YOUNG, J., joins the statement of CORRIGAN, J.

      DAVIS, J., not participating. I recuse myself and am not participating because I
was on the Court of Appeals panel in this case. See MCR 2.003(B).




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         October 29, 2010                    _________________________________________
       d1026                                                                 Clerk
