Opinion
Docket No. 71546.
Decided June 19, 1984. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Brent V. Danielson, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.
State Appellate Defender (by Karla K. Goodman), for defendant on appeal.
Defendant was convicted by a jury of possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d), and sentenced to one year of probation with 15 days to be spent in the county jail and fined $150. Defendant appeals as of right.
At trial, defendant challenged the constitutionality of the marijuana laws, asserting that the laws, and the conduct of law enforcement judicial officers in enforcing those laws, had violated his rights under the Ninth Amendment. Defendant argued that the marijuana laws made him a criminal for exercising his right to decide for himself what he wanted to do with his body.
Noting that the law in question was shrouded by a presumption of constitutionality, the trial court held that defendant failed to overcome that presumption.
On appeal, defendant originally raised three issues. At oral argument, defendant withdrew two of those issues, leaving for our consideration only his challenge to the constitutionality of the marijuana possession law. On appeal, defendant has abandoned his Ninth Amendment argument and now claims that the law in question violates his right to privacy. This question has not yet been addressed by the courts of this state.
Defendant urges this Court to follow the case of Ravin v State, 537 P.2d 494 (Alas, 1975), and hold that the statute punishing possession of marijuana for personal use as a criminal offense violates one's right to privacy. We decline to do so. Ravin was based on a right to privacy provision peculiar to the Alaska Constitution. Instead, we adopt the reasoning of the Supreme Court of Washington which held in State v Smith, 93 Wn.2d 329, 345-348; 610 P.2d 869, 879-881 (1980), that no constitutional right of privacy exists which encompasses the right to possess and use marijuana.
More than two months after oral argument, defense counsel informed this panel that defendant's oral waiver of the other two issues raised on appeal was made without discussing the matter with counsel and was not an informed and knowing decision on his part. Defendant now requests that we review those two issues. We have and find no reversible error.
Affirmed.