Kevin
Welcome back to the Kelly and Kelly Law podcast. Kevin here. And I’m joined once again by Mike Kelly, the head of the Criminal Defense Department at Kelly and Kelly, PC.

Thanks for joining us again, Mike.

Mike
Good to be back. We got some new things to talk about here. Specifically today we’re going to be talking about changes regarding marijuana.

Kevin
Yep. The ever developing complex area of Michigan marijuana laws. So what is the big change. People v. Hess. Michigan Supreme Court ruling. Let’s hear your legal take on this.

Mike
Yeah. So this is a huge deal. Came out July 6th of 2026. People V. Hess, This is a case that started in our district courts, a common scenario that a lot of criminal defense practitioners have run into for many years, where you had somebody in this case, Miss Hess, who was convicted of retail fraud for shoplifting at Meijers. And when she went through her her sentencing as a part of her sentence. The judge had made a prohibition against any use of marijuana, along with many other things.

Now, in this case, what was interesting about it is that the underlying crime of retail fraud was not a specific substance use abuse or a controlled substance offense in itself. And in fact, there wasn’t any information provided from the underlying incident itself suggests that there was any correlation between marijuana and the criminal behavior that Miss Hess pled guilty and was found guilty of committing.

So this case went all the way up to the Supreme Court when Miss Hess had a series of probation violations. Her attorney ultimately challenged the second violation, saying, hey, listen, MRTMA, which we know is the Michigan Regulation Taxation of Marijuana Act in Michigan, protects lawful marijuana use, and therefore, you can’t violate Miss Hess as a condition of her probation because MRTMA preempts the federal prohibition against marijuana as a standard condition of probation they simply said not to violate any any laws of this state or the federal government.

And because marijuana had still been a crime at a federal level, they found that her use while she was on probation could be treated as a violation of probation. But in this case, the Supreme Court ultimately disagreed with the lower court’s interpretation, said, “hold on here.” No, unless there’s some specific correlation, some causal connection between the offense which the person is convicted of and the the prohibition and the use of marijuana. You can’t just arbitrarily say it should be precluded because it would be a crime under federal law.

So in this case, the Supreme Court found that Michigan’s regulation, Taxation of Marijuana Act did in fact preempt federal law and without any further justification by the court, they couldn’t just say the district court could not just say that if it’s a crime under federal law, we can prohibit you from using it under our state law, probation laws.

Kevin
Oh, interesting. So if it’s not related to marijuana or marijuana wasn’t used in some way in the offense, then they can’t necessarily prohibit you from recreationally using marijuana. Am I understanding that correctly?

Mike
Right. They still have to create, they still have to show some connection, what I call a rational basis. They still have to connect the behavior prohibited and the offense that was committed. So in case you say like a drunk driving case, well, alcohol, even though it’s legal, you can be prohibited from using alcohol while you’re on a DUI, a drunk driving probation because there’s a connection between the two. But it wouldn’t make sense as the court rationed in Miss Hess case that something that something was of a non-drug or alcohol quality for them to then say, well, we don’t want to we don’t want you to engage in this behavior anyways. And there’s not a there wasn’t a connection between shoplifting and marijuana use.

Kevin
Okay. That makes sense. So not everyone can use marijuana on probation?

Mike
Well, no. And let’s be clear this is not opening things up to say hahaha. The judge can’t order me to stop using marijuana. I had a case, a criminal case with sentencing the day after this opinion came out, and it was almost like the judge didn’t bat a lash with the People versus Hess opinion. He didn’t all of a sudden say, oh, hold on here, let me change this connection.

In the case that I had, even though there wasn’t a direct per se connection between marijuana possession or use and the and the charge that they were being sentenced for, in this case, it was it was an operating while intoxicated charge. There wasn’t they weren’t operating under the influence of marijuana. But the judge still found a causal connection because on a DUI type of case, the court does conduct a substance use screening to identify
any potential pitfalls, any potential tendencies for this person to have a substance abuse issue.

And in that case, the judge could still order a ban against the use of marijuana because the person did identify as having a substance abuse issue. So if the judge can make a connection between banning marijuana and the offense that their sentence you on, they can still they can still continue with banning that marijuana use. But they have to show their work. They have to show some rationalization between the two. They can’t just make a blanketed statement that you’re not to use marijuana because it would be barred or banned under federal law. They cannot say that in a blanketed statement.

But at the same time, we had to understand here, alcohol, like I mentioned, is still legal, right? You can lawfully consume alcohol if you’re over 20, if you’re 21 years of age or older. But the court can ban you from using it
if there’s a connection, if there’s an identified substance abuse issue, or if the substance was related in the underlying offense itself. The same goes for marijuana. If there’s a substance use disorder or diagnoses that addresses a concern that somebody may have a tendency to abuse or overuse a certain substance, then the judge can still ban that as a condition of your probation.

Kevin
Okay, that that makes sense. And now what about people who are already on probation that their probation was enforced before this ruling? Are they grandfathered in?

Mike
Right. And I think you obviously need to talk with a lawyer about do my circumstances. But that now if you’re if you’re somebody like Miss Hess who had a charge that didn’t have anything to do with marijuana, and yet you’re being subjected to to marijuana drug testing. Well, yeah, I think you have a good you have a good question there to ask an attorney. Is this something that I could pursue, modifying the terms of my probation to eliminate that requirement for testing.

But if this was a case where you’re on it for, like I say, a drinking and driving offense, but you want to be able to use recreational marijuana, you know, while you’re still on probation, you may have a tougher time because in that in that situation, Michigan law would require the court to have a substance abuse screening completed prior to sentencing.

And in that substance abuse screening, if there’s any substance abuse issues that were identified, the court may be able to justify the continued prohibition against recreational marijuana use.

Kevin
Got it. How do you how are you seeing this affect current cases, and how do you anticipate it will affect future cases?

Mike
You know, I think marijuana across the board is is rapidly changing in the eyes of of judges, prosecutors, probation officers and police officers in the state of Michigan and across the country. You know, long and gone are the days where the simple smell or suspicion of it really gives rise to there must be criminal activity afoot. I think now everybody needs to look at it through a different lens that this could be protected, legal, lawful, reasonable use of a substance just like alcohol, that as long as it’s not being done or consumed or used in a way that promotes somebody to commit a crime, I think the court needs to be a little bit cautious about making blanketed assumptions about just simple use, or the fact that somebody has used in the past or is currently using. You have to look it through a lens of, well, is is it medical? Is it recreational? Is it being used properly
under MRTMA? Is it used properly under the medical marijuana laws. And now they have to look through it through a different additional lens of is there a connection between the underlying offense and the use of marijuana, or the precluded use of marijuana as a condition of probation?

Kevin
It’s more, yeah, more nuanced, I can see. Let’s add another layer of complexity Mike, what about medical, medicinal marijuana?

Mike
Right. We still have the Michigan. You know, the Medical Marijuana Act is still valid and still is is the law of the land in terms of protecting use of marijuana. I would still recommend clients that have a qualified right to use, have a have a qualifying condition. They need to make sure they’re properly being it’s properly credentialed and documented. The courts are not going to ban you or or really challenge you as much as they used to on your qualified right to use. That is still the the best case scenario for somebody who believes that they need to use marijuana to to address a clear diagnosed medical condition. And it is definitely a hands off area for the court. If if you were able to show that you’re protected under the act.

Kevin
Got it. And what are some final advice pieces of somebody on probation like it wouldn’t be just you. I’m sure you wouldn’t advise just to start using marijuana because of this ruling. It’s probably ideal to talk to an attorney
if you’re on probation before.

Mike
Right, and right now of courts are making clear that you must, you know, even if it’s like a it’s right now, if you go out and get a medical marijuana card, you have to get the court’s approval before you begin to use that.

So if you’re watching this video or you read the the Hess opinion, you’re saying, hey, man, I just saw this or maybe read half of an article about it, and you think that this means that the judge can’t order you to stop using marijuana?

You’re wrong. You’re wrong. And quite frankly, the the judge can still do a lot of things, whether or not the information out there or legal opinions may disagree, you still have to cross that with the judge, and it’s certainly
not worth you being in a position where you’re in standing violation of a judge’s order because you maybe maybe you misinterpreted what, what your rights were.

So I think you absolutely need to consult with an attorney and say, hey, am I one of those cases like Miss Hess, like Miss Hess, where I’m brought in for retail fraud and I’m being ordered to stop using marijuana? That would be a very good example of somebody who probably would be able to petition the court and say, hey, there’s no relation here.

But if you were different from Miss Hess, let’s say you had a prior marijuana charge or a prior substance use disorder, or they did screen you as part of of your intake with probation. And I identified you as having a substance use disorder or having a past substance use disorder. Then they may be more protected in saying yes, there is a connection between the two.

Don’t go in it on your own, don’t make assumptions and don’t take any chances that might and make might lead to you ended up in jail and not being able to navigate this the best way possible. Call an attorney. Call me. Let’s get to the bottom of it and figure out. Are you a case that should be reviewed based on the new information that’s come out from the Michigan Supreme Court? And if yes, what are the next steps that we can do about it? We can file a motion, we can notify the judge, and we can modify that probation order. So you can be protected and not run the risk of having something come up and being in violation of your probation term.

Kevin
It’s certainly not worth the risk to lead to more serious charges and potential jail time. I think that sound advice, Mike.

Mike
Absolutely.

Kevin
Thank you for your legal perspective and your time.

Mike
All right, everybody, stay safe. And as always, call Kelly.

Kevin
Until next time. Bye.

The Michigan Supreme Court recently issued one of the most significant probation-related decisions in recent years. In People v. Hess, the Court ruled that judges generally cannot automatically prohibit lawful marijuana use as a condition of probation simply because marijuana remains illegal under federal law.

In this episode of the Kelly & Kelly Law Podcast, criminal defense attorney Mike Kelly explains what the decision means, who it affects, and why individuals currently on probation should still proceed with caution.

What Is People v. Hess?

The case involved a woman who was placed on probation after being convicted of retail fraud. Although her offense had no connection to marijuana or substance abuse, the trial court prohibited her from using marijuana while on probation.

Her attorney challenged that restriction, arguing that Michigan’s Michigan Regulation and Taxation of Marihuana Act (MRTMA) protects lawful marijuana use and that probation conditions should not automatically override those protections.

Ultimately, the Michigan Supreme Court agreed.

Why Is This Decision Important?

Before People v. Hess, courts frequently imposed blanket prohibitions on marijuana use as a standard condition of probation.

The Supreme Court determined that courts generally cannot impose those restrictions solely because marijuana remains prohibited under federal law. Instead, judges must evaluate whether a marijuana restriction is reasonably related to the specific circumstances of the individual’s case.

Does This Mean Everyone on Probation Can Use Marijuana?

No.

Mike emphasizes that this decision does not create a blanket right to use marijuana while on probation.

Every probation case is different, and judges may still prohibit marijuana use when the restriction is reasonably connected to:

  • Substance abuse treatment
  • Rehabilitation
  • Public safety
  • Drug-related offenses
  • Other facts unique to the individual case

Because the Supreme Court intentionally left many questions open for future cases, this area of Michigan law will likely continue developing.

What Happens to Existing Probation Orders?

One of the biggest misconceptions is that existing probation conditions automatically changed after the Court issued its decision.

They did not.

If your current probation order prohibits marijuana use, you should continue following those conditions unless the court modifies them.

Ignoring an existing probation order could still result in a probation violation.

Can Your Probation Conditions Be Modified?

Possibly.

Mike explains that individuals whose marijuana restrictions have little or no relationship to their underlying offense may have grounds to ask the court to modify their probation conditions.

For example, someone convicted of an offense unrelated to drugs or substance abuse may be in a stronger position than someone whose offense or rehabilitation involved substance use.

Every situation should be evaluated individually.

Why You Shouldn’t Make Assumptions

Although People v. Hess expands the rights of many probationers, Mike cautions listeners against assuming the decision automatically applies to their situation.

A judge may still determine that marijuana restrictions are appropriate based on:

Consulting an experienced criminal defense attorney before making any changes is the safest approach.

Final Thoughts

The Michigan Supreme Court’s decision in People v. Hess represents an important development in Michigan probation law, but it does not eliminate every marijuana restriction imposed by the courts.

If you are currently on probation and believe this ruling may affect your case, an experienced criminal defense attorney can review your probation conditions, explain how the decision applies to your circumstances, and determine whether seeking a modification is appropriate.

Kelly & Kelly Law helps individuals throughout Michigan understand their rights and navigate changes in the law while protecting their freedom and future.