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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Wednesday, July 29, 2015

Michigan Supreme Court Decides Medical Marijuana Cases

Unlike the United States Supreme Court, our Michigan Supreme Court stays focused and working through the summer. Accordingly, yesterday it released decisions in the remaining two cases from the trio of medical marijuana cases arising here in Oakland County.

The cases involved pot manufacturing, delivery and possession charges brought against Richard Lee Hartwick and Robert Tuttle.  Both defendants asserted the immunity and affirmative defenses that are set forth in the Michigan Medical Marijuana Act.

Right out of the box, Justice Brian Zahra, writing for a unanimous court, noted the distinction in how the MMA came into being compared to most other laws.  As a voter-based initiative, the MMA was not drafted by legislators with the assistance of the bipartisan legislative council and its staff.  No, the pot law was drafted by the national pot lobby, without a review for, "content, meaning, readability and consistency".

Perhaps because of the manner it was drafted, the MMA has been a highly litigated piece of legislation since its passage in 2008.  There are more than a dozen published Court of Appeals decisions attempting to make sense of the Act; the Michigan Supreme Court has addressed the Act in 9 separate cases.

The Supreme Court remanded both cases back to the Oakland County Circuit Court for new evidentiary hearings to determine whether the accused in each case is entitled to the immunity from prosecution set forth in section 4 of the Act. The High Court affirmed that neither defendant was entitled to assert the affirmative defenses contained at section 8 of the Act.

Upon remand, the Supreme Court crafted a 4-part test to be used by the trial court in assessing whether an accused has complied with the Act. An accused now has the burden to demonstrate through a preponderance of evidence:

  • he has a valid medical marijuana card;
  • he has kept the amount of marijuana within the limits mandated in the Act [i.e. 12-plants per patient and 2 ounces for personal use];
  • all plants were kept in a closed locked facility; and
  • he was participating in the medical use of marijuana.

What this tells us here at the Law Blogger is that, unless these guys followed the MMA grow, housing, and storage requirements to the tee, they are doomed for conviction. For our part, we've always been concerned that the sheriff and the courts do not understand how pot is grown and what constitutes "smokable marijuana".

A fresh-cut plant, for example, contains water weight and stem wood; none of it is smokable.  Fast forward several weeks, when the plant is dried and detached from its stem, and it is smokable and weighs less.

How will the sheriff weigh the collieweed, mon?  This is the question that will likely play out at the evidentiary hearings ordered by Justice Zahra and the High Court.

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