In my practice, one of the more common frustrations I hear from clients has nothing to do with the driving allegation itself. It surfaces later, after the arrest, when a client who lawfully uses marijuana at home learns that a judge has ordered them to stop entirely, either as a condition of bond while the case is pending or as a condition of probation after a plea. To many people this feels contradictory. Michigan voters legalized recreational marijuana for adults, yet a court handling a drunk driving charge is telling them they may not use it at all, even on their own time, in their own home, and even where nobody claims marijuana had anything to do with the driving. I explain to these clients that their instinct is not misplaced, and that Michigan law on this precise point shifted meaningfully in the summer of 2026.
The change came from the Michigan Supreme Court's decision in People v Hess, ___ Mich ___ (2026). Hess did not arise from a drunk driving case at all, but its holding reaches directly into how district courts may treat marijuana in operating while intoxicated matters. Below, I explain what the Court actually decided, what it deliberately left open, and how these principles apply, differently, to alcohol-only cases and to cases in which marijuana was part of the alleged impairment. I also address bond, where the law is far less settled, and where careful lawyers should be candid about the limits of existing authority.
What Hess Decided
The defendant in Hess pleaded guilty to third-degree retail fraud, MCL 750.356d(4), and was sentenced to probation under the Holmes Youthful Trainee Act, MCL 762.11. Her probation order prohibited her from using or possessing marijuana, and the trial court gave no reason for the condition. After she twice tested positive, she moved to amend her probation to permit use compliant with the Michigan Regulation and Taxation of Marihuana Act, MCL 333.27951 et seq. (the MRTMA). The district court denied the motion, revoked her youthful trainee status, and jailed her. The Court of Appeals affirmed, reasoning that because the probation act requires probationers not to violate federal law, MCL 771.3(1)(a), and because recreational marijuana remains unlawful under the federal Controlled Substances Act, a court may, and perhaps must, forbid marijuana as a probation condition.
The Supreme Court unanimously reversed. Its holding is narrow and precise: a trial court may not prohibit MRTMA-compliant marijuana use as a probation condition solely because such use violates federal law. The Court reached that result by applying the preemption reasoning of Ter Beek v City of Wyoming, 495 Mich 1 (2014). Ter Beek held that the federal marijuana prohibition does not preempt Michigan's medical marijuana immunity because that immunity provides only state law protection and does not purport to interfere with federal enforcement. The Hess Court found the same analysis applies to the MRTMA's immunity provision, MCL 333.27955(1), which shields compliant conduct from being grounds for "arrest, prosecution, or penalty in any manner" and from being "grounds to deny any other right or privilege." Because the probation act is itself a state law, and because the MRTMA provides that "All other laws inconsistent with this act do not apply to conduct that is permitted by this act," MCL 333.27954(5), the probation act cannot import the federal ban and use it, by itself, to forbid lawful marijuana use.
I note in passing that the Court addressed the federal government's April 2026 reclassification of certain marijuana to Schedule III and expressly set it aside, explaining that "the federal government's reclassification does not affect our analysis." Recreational use remains unlawful under federal law, and the Court's holding does not depend on marijuana's federal schedule.
What Hess Left Open
Two features of the opinion matter as much as the holding, and I am careful to keep them in view when I evaluate a case. First, the Court decided only that federal illegality cannot be the sole basis for a marijuana prohibition. It expressly reserved the separate question of discretionary conditions, stating that "Whether a court can restrict a probationer's marijuana use as a discretionary, individually tailored probation condition is a question we do not answer." It added that it would "leave the issue for another day." Nothing in Hess holds that a court may never restrict compliant use; it holds only that the court may not do so on the strength of the federal prohibition alone.
Second, in a footnote the Court discussed People v Thue, 336 Mich App 35 (2021), which held in the medical marijuana context that revoking probation for compliant use "constitutes a 'penalty'" barred by the medical marijuana act. The Hess Court declined to decide whether Thue establishes an absolute bar or whether its reasoning extends to the MRTMA. That question, too, remains unresolved. I mention it because it supplies an additional argument that defense counsel should preserve, while acknowledging honestly that the Supreme Court has not yet endorsed it.
The Governing Standard for Discretionary Conditions
Because Hess foreclosed only the federal-illegality rationale, the ordinary framework for discretionary probation conditions continues to govern. Under MCL 771.3(11), discretionary conditions "must be individually tailored to the probationer, must specifically address the assessed risks and needs of the probationer, must be designed to reduce recidivism, and must be adjusted if the court determines adjustments are appropriate." The exercise of that discretion, as the Court of Appeals put it in People v Houston, 237 Mich App 707 (1999), "must be guided by what is lawfully and logically related to the defendant's rehabilitation." Probation remains, in the language of People v Breeding, 284 Mich App 471 (2009), "a matter of grace, not of right, and the trial court has broad discretion in determining the conditions to impose as part of probation." That discretion is broad, but it is tempered by these statutory limits, and a condition that rests on an error of law is an abuse of discretion.
Applying These Principles to OWI Cases
When I evaluate an operating while intoxicated case, I find it useful to separate two very different situations, because Hess makes the distinction decisive.
The first is a charge arising from alcohol alone, with no allegation that marijuana contributed to impairment. Here, a blanket condition forbidding all off-duty, at-home marijuana use is genuinely vulnerable after Hess. Such a condition cannot rest on federal illegality; that basis is now foreclosed. And it is difficult to defend as "individually tailored" to the probationer's "assessed risks and needs," because nothing in an alcohol-only offense connects the defendant to marijuana at all. In that posture, I press both points together: the condition cannot rest on the federal ban, and it cannot satisfy the tailoring and rehabilitation requirements of MCL 771.3(11) where the offense has no marijuana nexus.
The second situation is a charge in which marijuana was part of the alleged impairment, such as operating while intoxicated by marijuana or a combination of alcohol and marijuana. Here the analysis shifts. A court in such a case has an individualized, rehabilitative justification for restricting marijuana that is entirely independent of the federal prohibition, namely the defendant's demonstrated difficulty separating marijuana use from the operation of a motor vehicle. The vacated companion case the Supreme Court described in Hess illustrates the point. There, the defendant had pleaded guilty to operating while visibly impaired, MCL 257.625(3), and admitted being under the influence of marijuana when he committed the offense, and the Court of Appeals had concluded the condition was rationally related to the underlying offense. That decision was vacated and placed in abeyance, so it is not binding, but its reasoning shows how a marijuana-related offense supplies the very tailoring that an alcohol-only case lacks.
What Facts Tend to Matter
Because the discretionary question turns on individualized justification, the record is where these disputes are won or lost. I look closely at whether the charge or the plea involved marijuana at all; whether any chemical testing detected marijuana or its metabolites; what a risk and needs assessment actually found; and, critically, whether the court articulated any reason for the condition. In Hess itself, the trial court gave no reason for the marijuana prohibition, and the absence of a stated, individualized rationale is often the weakest point in the government's position. When a court imposes a marijuana condition in an alcohol-only case with a silent record, that silence is worth developing on the motion and preserving for review.
Bond Conditions: A More Unsettled Question
Clients frequently encounter marijuana prohibitions earlier than probation, at the bond stage, and here I am careful not to overstate the law. Hess is a probation decision. It analyzes the probation act and does not address pretrial release, the bond statutes, or the pretrial release rule at all. No holding of Hess governs bond conditions, and I am not aware of any published Michigan appellate decision that squarely resolves whether a no-marijuana bond condition may be imposed on a defendant whose off-duty use complies with the MRTMA. The arguments that follow are therefore reasoned predictions grounded in statutory text and analogous reasoning, not applications of controlling precedent, and I present them to courts as such.
With that limitation stated plainly, several features of Michigan law support challenging a blanket pretrial prohibition on compliant use, particularly in an alcohol-only case. The pretrial release rule, MCR 6.106(D)(2), permits a court, where personal recognizance will not reasonably ensure appearance or public safety, to require among other conditions that a defendant not "illicitly" use any controlled substance and that the defendant participate in substance abuse testing or monitoring. The operative word is "illicitly." MRTMA-compliant use is not an illicit use of a controlled substance under Michigan law; it is lawful and immunized. On its face, the rule authorizes a prohibition on illicit use, not on lawful, compliant use. In addition, the immunity reasoning of Hess applies by analogy: a bond condition enforced by the threat of forfeiture, revocation, or jail is readily characterized as a "penalty in any manner" and a denial of a "right or privilege," and if anything the argument is stronger before conviction, when the presumption of innocence remains intact.
The specific release statute for these cases points the same way. The Code of Criminal Procedure, MCL 765.6b, conditions release on the defendant not operating a motor vehicle under the influence. That reaches impaired driving, conduct that is independently unlawful and that the MRTMA does not protect in any event. It does not authorize a condition barring all lawful, non-driving marijuana use. I also recognize the countervailing considerations. Bond rests on its own framework, and a court may reason that a defendant charged with impaired driving presents a public safety concern warranting substance monitoring during the case. Where marijuana contributed to the charged impairment, that rationale is individualized and substantial. Where the charge is alcohol alone, it is considerably more attenuated.
Conclusion
After Hess, a Michigan court may no longer forbid lawful, MRTMA-compliant marijuana use as a probation condition on the sole ground that marijuana violates federal law. Beyond that, the terrain is fact dependent. Whether a court may still impose such a condition as an individually tailored discretionary condition under MCL 771.3(3) is unresolved and turns largely on whether the offense actually involved marijuana. Where marijuana was part of the impairment, the condition stands on far firmer footing; where the offense involved only alcohol, the condition is difficult to justify and, in my judgment, worth challenging. As to bond, no decided Michigan appellate authority squarely governs, though the text of MCR 6.106(D)(2), the limited reach of MCL 765.6b, and the immunity reasoning of Hess together supply a serious argument against a blanket prohibition, most persuasively in an alcohol-only case. None of this guarantees a particular outcome. Each case turns on its own record, its own charge, and its own judge, and I approach every one with that individualized review in mind.
