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"California Sober" and Michigan Courts

Clarkston Legal April 20, 2024

California SoberWhat better day to touch base with modern sobriety than on 420. This post examines the "California Sober" concept in an age of creeping legalization.

Some addiction recovery therapists are endorsing a new form of sobriety known as "California Sober". This approach involves moderate therapeutic use of medical marijuana and micro doses of psilocybin [mushrooms].

The "abstinence-only" model of sobriety is now considered by some doctors and therapists as too restrictive. What was once considered unorthodox is now much more acceptable. One example is the treatement of opioid addiction with psychedelics.

This Cali-style approach to long-term sobriety is, of course, not without its critics. The term "California Sober" was popularized by the singer Demi Lovato in 2021. Willie Nelson has also embraced a "California Sober" lifestyle.

Notably, Lovato recanted, claiming that sober-sober was the only way to go. Many Michigan judges, at least on a case-by-case basis, would agree, and take the "abstinence only" approach to family court and probation.

Michigan Family Courts

"California sober" gained some ground here in Michigan in the In re Ott case; a recently published decision of the MCOA where the family court judge conditioned Mother’s parenting time in a child protective proceeding on her submitting evidence of marijuana abstinence for three consecutive marijuana drug screens. Mother had a long track record of homelessness, drug abuse, missed parenting sessions, and missed drug screens; she had extensive mental health issues.

The family judge’s zero tolerance condition was reversed by the MCOA holding that the medical marijuana act itself:

Provides that a person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

An automatic suspension of parenting time for a positive drug screen for THC absent any examination of and determination under these statutory provisions is invalid. Respondent [Mother’s] use of marijuana did not justify the denial of her parenting time with LO unless the court determined that as a result of her marijuana use, parenting time, even if supervised, may have been harmful to LO’s life, physical health, or mental well-being.

In so holding, the MCOA expressly found that the medical marijuana act applied to family court and custody matters. Because the case is published, it now binds the lower family courts on the issue. Here is a link to the MCOA opinion.

Michigan Criminal Courts

In People v Thue, the defendant was convicted of a road-rage assault resulting from an incident in Traverse County. As a condition of his probation, the defendant could not use marijuana, even medical marijuana for which he held a valid registration card.

When denying the defendant’s motion to modify his probation to allow his use of marijuana, the district court judge relied on the county-wide policy proscribing all marijuana use for probationers, even for medical purposes. The district court was also persuaded by the prosecutor’s argument that sentencing judges had the power to restrict or condition a probationer’s use of medication.

The Michigan Court of Appeals disagreed, reversing the district court’s decision, citing the often-used immunity provision of the medical marijuana statute:

[A] qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act…

In accord with this statutory language, Michigan courts have invalidated portions of many statutes, ordinances or other laws that conflict with the medical marijuana act.

The Court of Appeals expressly held in this case that a condition of probation that prohibits valid medical marijuana use is unenforceable:

[P]rovisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana. In other words, a condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.

The Court’s unanimous opinion is published, meaning this holding will apply to all probationers in Michigan. All district and circuit courts are now bound by and must follow this rule.

Michigan Judges React Differently to California Style Sobriety

Our law firm has observed how judges react differently to the California notion of sobriety. this dynamic before. Despite a particular parents’ past sins, so long as that parent’s conduct remains within acceptable boundaries of child safety, then that parent’s contact with their children cannot be conditioned on a negative marijuana drug screen.

On the other hand, we have also experienced cases where a parent hides drug-seeking risky behavior behind either a medication prescription or a medical marijuana certification. In such cases, the other parent must be able to detail the misconduct with admissible evidence.

In our practice, the "California Sober" mode of abstenance has arisen from time to time over the past 15-years. Since marijuana was legalized for medical purposes in 2008, our law firm has represented defendants standing before a sentencing judge, trying to explain that they wanted the freedom to continue to use medical marijuana during their probation.

Thereputic doeses of psilocybin is the next big ask of the sentencing judge. Most of these judges see mushrooms as the proverbial "bridge too far".

We have extensive experience with convicted defendants who are dependent on alcohol. Some of our clients that are in recovery use marijuana, psycoactive mushrooms, and even ketamine. Of these substances, only marinuana is legal in Michigan.

Nevertheless, these clients consider themselves sober because they remain alcohol-free. Problematic substance abuse and the concept of sobriety have become more fleible. This is the notion of being "California Sober".

Along these lines, addiction experts have noted that younger Americans have trended toward use of weed and psychedelics while shunning alcohol. Is moderate use of these "wellness boosting" substances still considered maintaining sobriety. We recognize that it is one thing to assess sobriety on the therepeutic scale, while it is something altogether different when attempting to avoid violating probation, or running afoul of a parenting condition in family court.

We Can Help

The "California Sober" concept is disrupting the field of addiction treatment. Studies are difficult to carry out. Substances like marijuana and psilocybin can be addicting.

Currently, like the individuals struggling with alcoholism and other forms of addiction who are trying to find their own way to sobriety, judges have forged new paths. Some have no tolerance for the Cali-style approach to flexible sobriety, insisting on total abstinance during probation or in the family courts.

Other courts, including the Michigan Court of Appeals, have embraced a more flexible approach to sobriety.

If you or a family member face addiction issues that have placed you in jeopardy before a court, contact our law firm to schedule a free consultation.