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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.
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Monday, November 12, 2018

Revenge of the Stoners

Of the 33 states that have passed some form of lenient marijuana-use legislation, 10 of those, most recently Michigan, have legalized marijuana for recreational use. The District of Colombia is also in both groups of states.

In Michigan, beginning next month, persons over 21-years of age may purchase,possess and use recreational-use marijuana. The era of prohibition, although not over, is deteriorating rapidly.

Coincidentally, one of the collateral consequences of President Trump’s brusque dismissal of Attorney General Jeff Sessions last week removes from the USDOJ -at least temporarily- an outspoken opponent of pot legalization. In the "old days" of the Obama Administration, the USDOJ's official policy was set forth in the so-called Cole Memo where United States Attorneys were instructed not to pursue federal prosecutions for marijuana possession in states that had some form of lenient marijuana legislation.

Mind you, having just returned from California last week [a state that is a half-decade ahead of Michigan relative to dispensing product] this is not your father’s marijuana; the products are diverse, potent, cheaply and locally produced.

Michiganders must keep in mind that, despite the new recreational marijuana law, it still remains illegal: a) at the federal “Schedule 1” level; b) to smoke marijuana in public places; and c) to drive under the influence of active THC in your bloodstream.

Highlights of Recreational Use of Marijuana

The new recreational marijuana law allows:
  • Persons 21 and older to purchase, possess and use up to a dozen plants;
  • Keep up to 2.5 ounces of marijuana in a locked container at one’s residence;
  • The promulgation of regulations for all aspects of the marijuana business [i.e. growth, testing, dispensing, and transportation];
  • Commercial sales of marijuana-infused products via state-licensed dispensaries; and
  • Municipalities to promulgate ordinances to ban, restrict or otherwise regulate the distribution of marijuana.
Content has exploded across the local press with all sorts of useful tips on how to ride the recreational pot wave. Here are examples from the Freep [which even went so far as publishing a handy stoner's glossary of sorts] and the Detroit News.

Here Come the Regulations

If the regulations accompanying last year’s expansion of medical marijuana licenses are any example, you can expect similar recreational-use state regulations and local ordinances that: a) favor heavily-capitalized producers; b) segregate different phases of the process [i.e. testing, growth, dispensary and transport]; and c) tax the hell out of the still-cash-only revenue stream; a very healthy revenue stream predicted to be on the par with liquor and tobacco combined.

If Colorado, California and the State of Washington are comparable examples, Michigan can expect well-run, fun stores that adopt the Apple mode of retailing their in-demand products. It’s as if a “50-Shades of Grey” mentality has taken over the populace now that these goods are so smartly distributed at the retail level. Just as you can browse for a fine –and expensive- cigar in a smoke-friendly cigar store environment, you can now browse the isles and wall display units for a $25 doobie. With taxes, you’ll part with nearly $30 for a high-quality joint.

Michigan’s Department of Licensing and Regulatory Affairs [LARA] seems proactively positioned to utilize what our state government has learned from the medical marijuana regulations for this next quantum leap. LARA certainly recognizes the revenue potential to such the cash crop that is marijuana, whether medicinal or recreational.

Expungement of Prior Marijuana Convictions

Now that both medical and recreational use of marijuana are legal in Michigan, some county circuit court judges may favorably consider petitions to remove marijuana-based convictions from a person’s criminal record. Currently, the state legislature has a bill pending to require judges to consider such expungements. Also, governor-elect Gretchen Whitmer has already indicated her willingness to utilize her clemency powers to expunge low-level marijuana-based convictions and remove scores of inmates doing prison time for such offenses.

Here is a link to the Law Blogger post detailing how a twice-convicted marijuana possessor and distributor is serving a life-sentence in Missouri.

This must come as good news to the 3600 marijuana-based felons and the nearly 50,000 people convicted of marijuana-related misdemeanors over the past 5-years.

Getting Off Schedule 1

Getting off Schedule 1 will be complicated. There will have to be a Democratic majority in both houses of Congress for the stars to align for this prospect. Some Republican legislators acknowledge the job-growth and tax revenue attributes to a strong marijuana industry. So far, however, the political will to make this happen has not been exhibited.

Complications, no doubt, arise in the context of the war on drugs which has its roots back to the 1971 Controlled Substance Act which listed marijuana on Schedule 1 in the first place. In the decades since, many of the United States' multilateral treaties have marijuana prohibition as one of its central policy planks. A few referendums spread across a few states are not -yet- strong enough to derail these long-standing treaties.

Yes, it is very complex. To the North, Canada has legalized marijuana across all nine of her provinces. In Central and South America, to our South, multilateral treaties have provided the framework for the decades-long war on drugs, with military style interdiction of drug manufactures and couriers.

Until marijuana is off schedule 1, the industry has certain distinct risks. For example, do not look for marijuana-based business transactions to be conducted within banks for the next half-decade or so. Same for insurance.

Therefore, in the short term, marijuana will continue to be a strictly-cash business. This will slow down its growth. Some people don't think this is a bad thing.

We Can Help

Marijuana prohibition is a thing of the past. The new law in Michigan, and the general decriminalization process, will create some interesting opportunities for those individuals who have been burned by now-outdated laws.

If you or someone you know has a marijuana-based conviction, simply click on the link below and give our office a call to schedule a free consultation to assess your options under the new landscape.

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