Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  October 22, 2010                                                                       Marilyn Kelly,
                                                                                             Chief Justice

  139194                                                                          Michael F. Cavanagh
                                                                                    Maura D. Corrigan
                                                                                   Robert P. Young, Jr.
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                Alton Thomas Davis,
            Plaintiff-Appellee,                                                                   Justices

  v                                                      SC: 139194
                                                         COA: 283458
                                                         St. Clair CC: 07-000496-FH
  JESSICA STARR BARKLEY,
            Defendant-Appellant.

  _________________________________________/

         By order of November 20, 2009, the application for leave to appeal the May 12,
  2009 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. The remand is limited to the first issue raised by the
  defendant, regarding her conviction under MCL 257.625(4), (8). In all other respects,
  leave to appeal is DENIED, because we are not persuaded that the remaining question
  presented should be reviewed by this Court.

        CORRIGAN, J. (dissenting).

         I would deny defendant’s application for leave to appeal or, in the alternative,
  grant the application in order to address the viability and applicability of this Court’s
  decision in People v Feezel, 486 Mich 184 (2010).

                           THIS COURT’S FEEZEL DECISION

         The substance 11-carboxy-tetrahydrocannabinol (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
                                                                                         2

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 urge the Court 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 IMPACT OF FEEZEL HERE

       This case well illustrates the potential confusion wrought by the Feezel decision.
Defendant, who was driving with THC in her system, ran a stop sign and collided with a
pick-up truck that had the right of way at the intersection. Two passengers in defendant’s
car—her six-year-old son and her adult friend—were killed. As a result, a jury convicted
defendant of two counts of negligent homicide and one count of operating a motor
vehicle and causing death while having a controlled chemical substance (marijuana) in
her body, MCL 257.625(4) and (8). Under Derror, defendant’s guilt of this last offense
was clear. But Feezel attempts to distinguish one metabolite of marijuana, 11-carboxy-
THC, and prohibit it from being dubbed a controlled substance. Accordingly, the nature
of defendant’s offense is now unclear. An expert testified that defendant’s urine
contained a sufficient amount of THC—at least 50 nanograms per milliliter—to test
positive for the substance. But it is unclear from the record provided to this Court which
metabolite or metabolites of THC were measured. All metabolites of THC indicate
ingestion of marijuana, and defendant did not contest at trial which metabolite or
metabolites appeared in her system.



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).
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       Moreover, it appears that revisiting this question—which was unanticipated by the
parties because it was invented by the Feezel Court after defendant’s convictions
entered—would be unlikely to have any effect on this case. Not only did defendant fail
to contest which metabolite or metabolites were in her system, but her primary argument
on appeal would fail regardless of which metabolites were present. She argues that the
record failed to show that she knew THC was still in her system, apparently because the
record was silent with regard to whether she knew her driving was measurably impaired
by marijuana. But the prosecutor was not required to prove that she knew she was
impaired by a controlled substance; mere presence of “any amount” of the substance in a
person’s body is necessary for conviction. Derror, 475 Mich at 334.2 The person’s
errant driving, not the person’s impairment due to intoxication, must have caused the
death. Id. at 333. Defendant effectively argues that she decided to gamble by driving
after an indefinite period of time had passed since she ingested the marijuana but she
should not be liable because, having not tested herself for THC before getting behind the
wheel, she did not know with certainty whether THC remained in her system. This
argument is irrelevant under the statute even in the wake of the Feezel decision. Finally,
I note that defendant was paroled in June 2010 after serving her 2½-year minimum
sentence. She is scheduled to be discharged from parole by December 2011.

       YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.




2
  The Legislature could have had many plausible reasons for defining the offense this
way. Perhaps most notably, the Legislature may have taken into account that blood or
urine tests conducted after an accident can establish with precision neither the amount of
the controlled substance that was present, nor the precise degree of the offender’s
impairment, at the time the offender’s driving killed the victim. This may be the reason
for the Legislature’s decision to draw the strict evidentiary line evident in the language of
MCL 257.625(8), prohibiting a person from operating a vehicle “if the person has in his
or her body any amount of a controlled substance listed in schedule 1 . . . .” Although
after-the-fact tests cannot always establish the level of the offender’s intoxication at the
time he killed someone, such tests can reliably establish that he ingested a controlled
substance and, some time later, nonetheless chose to drive.



                         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 22, 2010                    _________________________________________
       y1019                                                                 Clerk
