People are going to abuse marijuana just as they do alcohol. Keeping drivers that are too stoned off the road, just like with drunk drivers, is the task at hand for law enforcement.

The Michigan State Police will soon begin administering roadside saliva tests for THC; the one-year pilot program rolls-out this month in 5 counties, unnamed in last year's enabling legislation. The five counties finally were revealed this week: Berrien, Delta, Kent, Washtenaw, and St. Clair.

This new law enforcement tool comes in an era of decriminalization and at the end of the prohibition of marijuana. For example, Canada will legalize marijuana for recreational use this summer for all 9 provinces. In the process, they too are rolling-out a roadside saliva test designed to catch stoned drivers.

Despite ever more progressive marijuana policies among the states, the drug nevertheless affects driving. Consequently, its use is addressed in the Motor Vehicle Code here in Michigan; criminal sanctions can result from stoned driving.

A challenge for legislators, prosecutors, judges and law enforcement is measuring the quantity of the drug in the driver's body. There is no consensus among experts regarding how much marijuana impairs driving skills.

Unlike alcohol, THC and other controlled substances are difficult to measure with the accuracy required to support a conviction. Today, officers are trained to watch for and observe signs of impaired driving.

A .08 blood alcohol level -which can be easily and reliably determined- is universally accepted as a threshold for the legal operation of a motor vehicle. There is no comparable standard when it comes to marijuana.

Because driving under the influence of marijuana is difficult to detect, Michigan is utilizing specially trained state troopers known as Drug Recognition Experts. These DREs use a 12-point evaluation in making the determination of a driver's impairment by drugs.

Part of the DRE training involves administration of the saliva test. The test is designed to detect marijuana, amphetamines, methamphetamines, benzodiazepines, cocaine and opiates.

Defense lawyers are calling foul, characterizing the saliva tests as "junk science". Not even preliminary breath tests for alcohol -also administered at the roadside- are admissible in court. Rather, the preliminary test results may establish probable cause to conduct a more accurate but more intrusive search: a blood test.

Refusing the saliva test is treated in the same manner as refusing a preliminary breath test when suspected of drunk driving: liability of a civil infraction and exposure to law enforcement being able to use the refusal as a component of the probable cause to arrest calculation.

Obviously, officers making routine traffic stops cannot haul everyone they suspect of driving under the influence of drugs into a nearby hospital for a blood draw. If the saliva test is positive for any of the above-referenced substances, then probable cause is established to conduct a blood screen; a seizure under the 4th Amendment.

Last July, the National Highway Traffic Safety Administration sent a detailed report to Congress calling into question whether the roadside saliva tests could even properly detect THC, let alone verify an amount per milliliter of blood deemed to be officially "stoned". The report concluded:

Many studies, using a variety of methods, have attempted to estimate the risk of driving after use of marijuana. While useful in identifying how marijuana affects the performance of driving tasks, experimental and observational studies do not lend themselves to predicting real-world crash risk.

Some studies suggest that a person's tolerance of marijuana has a significant impact on whether they can drive while stoned -i.e. the more you smoke, the better driver you become while high- while other studies point to the increased number of crashes where the driver had some level of THC in their bloodstream.

The current state of the law is that any amount of active THC in a driver's bloodstream is illegal. As we know, however, the Devil is in the details. False positives, based on residual amounts of THC in the bloodstream, are far too common with saliva swabs.

With the science of the available testing devices lagging behind, we will monitor this pilot program and report on its progress and relevant developments. A scientific breakthrough relative to the collection and processing of forensic data could come at any time.

Meanwhile, if you use marijuana, do us all a favor and don't drive stoned.

Post #609
www.clarkstonlegal.com

For the past 85-years, Dykema Gossett, one of Michigan's largest law firms, has developed a corporate and commercial transactional clientele. The firm's website touts serving clients in the automotive, energy, hospitality, gaming and financial sectors. 

Just over a month ago, Dykema announced the formation of its Cannabis Law Group. To form the group, the firm pulled together its lawyers with marijuana-related projects in the intellectual property, land use, zoning, tax and employment law sections.

Dykema's cannabis law group also sports its own blog on the firm's website. The posts are relevant and informative in this new and constantly changing area of the law.

While you would not necessarily pair one of Michigan's largest law firms with the marijuana industry, Dykema, in fact, has been in on the ground floor. The firm served as legal counsel to the lobbyist group that drafted our medical marijuana law back in 2008.

The firm's blog noted the failure of the "MI Legalize" effort to get on the 2016 ballot on the sole basis of deficient signatures; about 100,000 short.

Post #544

www.clarkstonlegal.com
info@clarkstonlegal.com

The push toward global legalization of marijuana has taken a few lurching steps over the past month, especially here in the Americas. Two steps forward; one step back.

The Supreme Court in Mexico just ruled that 4 individual plaintiffs could legally grow marijuana for their personal use; but the ruling fell short of outright legalization in that country. Legal experts suspect that the ruling could initiate a trend, however, that would make the cultivation and distribution of marijuana legal in Mexico.

To the North, newly elected Canadian Prime Minister, Justin Trudeau, has promised to make the legalization of marijuana one of his primary parliamentary goals; medical use of marijuana is already legal across Canada.

Here in the United States, however, pot legalization continues to struggle. For example, a legalization initiative for recreational use lost in Ohio on Tuesday.

Among the dozens of presidential hopefuls in the 2016 campaign, only Senator Bernie Sanders has called for the removal of marijuana from Schedule 1 of the Controlled Substance Act. Until pot is removed from the Act, legalization really has not chance to succeed here in the U.S.

Complicating removal of marijuana from Schedule 1 are the numerous eradication treaties the U.S. has signed with Latin American countries; a legacy of our failed decades-long "war-on-drugs". That war, relative to marijuana cultivation, has truly failed.

Legalization in California would move the needle significantly. Although the legalization measure on the Cali ballot failed in 2014, it will be on the ballot again in 2016.

In Michigan, two legalization initiatives are currently working their way onto the ballot for 2016. This choice could harm the legalization effort as voters attempt to sort their way through two separate complex proposals.

Our appellate courts have issued over a dozen published opinions interpreting the Michigan Medical Marijuana Act.

 Ever since its prohibition in the 1920s, the movement for legalization has been slow and painful. Also, there continues to be legitimate debate about the true palliative features of marijuana.

Sometimes, the justification for legalization simply comes down to the argument that it is less harmful than alcohol; alcohol is legal, ergo, marijuana also should be legal. This may not be good enough for the legislatures and the electorates called upon to vote on legalization measures.

Only time will tell...

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #505

Just over a year ago, Colorado began a grand experiment with the legalization of marijuana. Unlike Washington state, which has taken the state-backed dispensary route to production, the Colorado model favors the individual pot farmer; think craft beers and spirits, and apply the concept to marijuana.

The past year has showed Coloradoans, however, that the process has become more complicated -and dangerous- in order to produce a much more potent strain of the crop. One consequence of the production process: explosions.

Marijuana at its Best.  These days, the cutting-edge in marijuana production is a concentrated, golden honey-like substance known as: wax, hash oil, or shatter.  To produce this substance, mature marijuana leaves are infused with butane under pressure. When the butane is removed, the spent plant matter yields a potent residue containing a high concentration of THC, the psychoactive ingredient found in the marijuana leaf.

Collateral Damage.  Here's a problem: when folks rush through the production of their pot wax, and do not take proper care or precaution -because they are anxious to get their product onto the street and make some money- bad things can happen. For example, the butane used in the production causes combustible fumes to build-up in any enclosed, poorly ventilated structure. If the venue used in the production process is, say, an ordinary residence, then errant sparks can happen when a furnace kicks on, or a gas stove burner is lit. Under such circumstances, a spark can lead to an explosion when the butane fumes ignite.

The Stats.  According to a recent article in the NYT, thousands of people are producing marijuana wax with butane all across Colorado. In 2013, a dozen pot-production-related house explosions occurred; last year the number rose to 32 according to the pro-law enforcement group Rocky Mountain High-Intensity Drug Trafficking Area.

Legal Consequences.  What is a county prosecutor or judge to do with an individual that blows-up a house in the production of marijuana wax? Well, so far such individuals do not just get a pass. County prosecutors are charging individuals with arson. This gives rise to some interesting criminal defense lawyering, and has led to disparate results.

In one case currently pending against a 22-year old, the county judge would not dismiss the arson charges against him on the grounds of Colorado's new pot law; the defendant is facing prison time if convicted.  In another case, a 77-year old man pled guilty to arson and was sentenced to probation.

Going Forward.  As Colorado boldly sets the pace for marijuana legalization, we see the classic disconnect between the law and the realities of human activity. Nowadays, the classic grow-your-own style of marijuana production, where plants are lovingly nurtured, cultivated and smoked in cigarettes or pipes, is rapidly giving way to a more dangerous intensive process aided by explosive materials.

If the explosion trend continues, we here at the Law Blogger look for two things to occur: first, production will shift to a more state-run or subsidized dispensary model; and second, some pot growing conduct will be regulated or criminalized either by the federal government, or via state laws and regulations.

www.clarkstonlegal.com
info@clarkstonlegal.com

Great Grandfather
and Lifer Jeff Mizanskey

Missouri, like several other states, has a three strikes and you're out law.  That means on your third offense, the sentence is life without parole.

In the case of Jeff Mizanskey, all three of his convictions involved possession and distribution of marijuana.  In 1996, he was sentenced by a circuit court judge in Missouri on his last case -possession of 7-pounds of pot- to life without parole; the bullet, as we say in the industry.

Now, approaching two decades later, even the prosecutor who put him away is calling for his release.  As applied to Mizanskey, when Missouri's 3-strikes law is predicated on all-marijuana convictions, his life sentence does not seem fair.

Much of the perception of unfairness in Mizanskey's case stems from the evolution of our marijuana laws.  With two states legalizing recreational use and nearly half the other states, including Missouri, legalizing medical marijuana, a pot-related life sentence takes on a draconian flavor.

On the other hand, as my prosecutor friends would point out, this is the law that the Missouri legislature put on the books; federal sentencing guidelines are also very harsh.  When the legislatures pass the laws, there should be an obligation to follow them; typically, sentencing judges do.

Yet some sentences are so harsh, their inherent unfairness forces change.  This happened in Michigan to the so-called drug lifer laws of the 1980s.  Governor John Engler not only signed a law nullifying the drug lifer laws, the nullification included retroactive application to all inmates sentenced under the revoked law, making each lifer eligible for parole.

In Mizanskey's case, there is momentum for Missouri Governor Jay Nixon to grant his clemency petition.  There are believed to be approximately 20 people sentenced to life terms for marijuana-related convictions.

As the legalization of marijuana unfolds over time across our nation, these individuals stand-out as markers of a failed prohibition policy.  Following the letter of the law vs doing what is right under the circumstances is an age old struggle in our free society governed by laws.

www.clarkstonlegal.com
info@clarkstonlegal.com

By: Timothy P. Flynn

Since the Obama Administration began in 2009, we've seen memos like this at least twice before.  But last week's long-awaited Department of Justice memorandum concerning federal law enforcement policy regarding marijuana appears to be the most significant policy statement yet, and may have the most far-reaching consequences.

In a memo to all United States Attorneys, the Deputy Attorney General, James M. Cole, advises prosecutors that the Justice Department will not be challenging the recently-passed state laws legalizing marijuana in Colorado and Washington.  Also, the memo instructs prosecutors not to base pot distribution charging decisions on the size or profitability of local marijuana dispensaries.

The policy statement was significant to the legal marijuana industry in those states as well as to the medical marijuana growers and dispensary owners throughout the country.  One of the roadblocks to the development of the industry in general has been the confusion and anxiety arising when state laws say "go", but federal law still says "no".

While this memo provides some assurances to the, er, "industry professionals" [some would say, "criminals"], it does not change the basic fact that marijuana remains a Schedule 1 drug: i.e. criminalized due its high potential for abuse, with no proven medical benefits.  Just ask the owners and operators of the dozen dispensaries recently mothballed in Northern California courtesy of Melinda Haag, the U.S. Attorney in California.

The pot lobby views the DOJ's most recent policy statement as "more good than bad."  Their optimism comes from the DOJ's encouragement of large for-profit dispensaries that adhere to DOJ guidelines, and the invitation for other states to legalize pot.

Banks and insurance companies, however, have yet to buy into the transition of the marijuana industry from a craft-oriented enterprise to industrial production.  Until that occurs, the pot farmer will just have to sleep with one eye open.

Post Script:  Here is some of the fall-out to the DOJ's policy shift announcement from Congress, here and here.

www.clarkstonlegal.com
info@clarkstonlegal.com

Attorney General Eric Holder

U.S. Attorney General Eric Holder has been asked by the Attorney General of Colorado for an indication of how the DOJ will treat the marijuana legalization initiatives passed into law by Colorado and Washington.  Holder has promised to address the issue, "soon".

The USAG made the promise at a national conference of Attorneys General in response to a question posed to him by Colorado Attorney General John Suthers.  Holder indicated that the DOJ was working on formulating the policy response and that it was complicated.

Although marijuana has been legalized in two states, and is legal for medical purposes in a third of the states and the District of Colombia, it remains classified as an illegal "controlled substance" under federal law.  Thus, businesses within states that have legalized pot are wary of going too far down the road with the development of industry infrastructure if the DEA can, at any time, come crashing in and shut them down.

Although marijuana has been a key component in the federal government's 3-decade long "war-on-drugs", the popularity of marijuana among the mainstream citizenry, and its success at the polls, has given the feds pause.  Last fall's successful outright legalization initiatives has brought the matter to a head.  Conflicts between federal and state laws must be resolved in our federalist system of governance.

We here at the Law Blogger expect some sort of marijuana-equivalent of the "don't ask; don't tell" policy.  For the industry, this will be like getting served a bowl of luke warm soup.

www.clarkstonlegal.com
info@clarkstonlegal.com

Modeling their voter initiative on the ordinance that has been on the books in Ann Arbor for the past 35-years, Grand Rapids took a stab at de-criminalizing marijuana use and possession.  "Not so fast ...", said the Kent County Prosecutor, William Forsyth, and the GRPD.

Pot lobbyists were successful in Grand Rapids last November getting a pot de-criminalization initiative passed.  Promulgation of the city ordinance, however, has been complicated and now, litigated.

The Kent County Prosecutor claims that the ordinance cannot interfere with a state law, and has requested an injunction from a Kent County Circuit Judge.  The prosecutor's argument is that Grand Rapids cannot turn a state law into a civil infraction.

The Grand Rapids City Attorney and a lawyer for Decriminalize GR, the local pot lobby, assert that the voters passed a legal charter amendment which should now apply to those present within the city limits; just like the Ann Arbor, MI ordinance.  The Michigan Constitution, the City Attorney's argument goes, provides citizens with the authority to decide such issues by voter initiative.

The ordinance injunction issue is currently pending with Kent County Circuit Judge Paul Sullivan.  Whoever winds-up on the short end of his opinion will no doubt appeal the decision to the Michigan Court of Appeals.

www.clarkstonlegal.com
info@clarkstonlegal.com

This past August, I was fortunate to have some business in the Greater Los Angeles area.  I was amazed at how many medical marijuana shops were open for business along Hollywood Blvd. and Sunset.  Even though California's big outright legalization initiative failed in 2010 [the medical pot lobby crushed it], marijuana is all-but-legal in Cali.

This week, Mexico, the biggest illegal supplier of pot to the U.S. market, is reportedly taking a very close look at three other Western states seeking to legalize marijuana outright through ballot initiatives on Tuesday: Oregon, Washington and Colorado.  According to The Economist, these initiatives have a very  good chance to pass in Colorado and Washington, while Oregon is considered a "long shot".

A long-standing argument for legalization is that it would put the drug cartels South of the boarder out of business to the extent that America could supply its own stash.  The past three Mexican presidents have all stated publicly that legalization in the U.S. would have the greatest effect on dismantling these vicious criminal gangs.

Marijuana produced by skilled Gringo horticulturalists, the argument goes, is of better quality and is cheaper to produce, than the Mexican import.  Also, it could be taxed like cigarettes to produce much-needed government revenue.

We here at the Law Blogger wonder if it is not indeed time to consider whether a policy change on this issue is due.  The three-decade policy of drug war eradication has been a prolonged costly failure.

Drug trade policy is one thing; federal law is another.  Any significant change in this direction would require that simple marijuana use and possession be removed from the list of federal drug crimes by Congress.  That is going to take some big-time lobbying.

In this regard, a California pot lobby, Americans for Safe Access, has convinced the powerful D.C. Circuit Court of Appeals to take a look at the science of marijuana in its case against the Drug Enforcement Agency.  Appellate oral arguments were heard in mid-October; the panel assigned to decide the case ordered additional briefings from the pot lobbyists and the DEA immediately following arguments.

The opinion, which could have a significant impact on the federal marijuana laws, is expected from the intermediate federal appellate court in a few months, and will be SCOTUS-bound thereafter.  We will continue to keep you advised on this landmark drug case; in the meantime, let's see what happens on Tuesday.

www.waterfordlegal.com
info@waterfordlegal.com

Bloomfield Hills passed an ordinance in October requiring card-carrying certified medical marijuana users to register with the Bloomfield Township Police Department. The ordinance also requires the submission of a form to the police disclosing the “patient’s” drivers license number and date of birth, whether the patient owns or rents their home, and identifying how many other patients share their home.

In addition, the ordinance limits the number of medical marijuana patients that can live at one address and prohibits growing medical marijuana anywhere in Bloomfield Township. Violation of the ordinance is a 93-day misdemeanor carrying a $500 fine.

Bloomfield Hills is among several municipalities that have passed ordinances that restrict the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or both.

Now the ordinance is the subject of a lawsuit filed against the township by two crafty [their “clients” are John and Jane Doe] veteran criminal defense attorneys: Tom Loeb and Neil Rockind. The lawsuit, undoubtedly heading to the Michigan Supreme Court, does not seek money damages but rather, declarative and injunctive relief.

Township by township, the MMA is coming under fire for a glaring flaw: it is a ruse for recreational pot users. Yes, there are legitimate medical marijuana users out there, in spades, for whom the MMA was designed to help. There are also many “patients” whose medical records were reviewed with a passing glance by a physician more interested in the high-volume review fees than in determining whether the person has a genuine chronic medical condition of the sort required by the MMA. The LawBlogger wonders how many certified users, among the tens of thousands of backlogged applicants, are under the age of 25; or are college kids whose only chronic condition is their desire to party down.

As these legal challenges grind through the court system over the next two or three years, the MMA will be subject to death-by-ordinance on a township-by-township basis. Attorneys Rockind and Loeb remarked in their press conference announcing their lawsuit that the ordinance in Bloomfield Hills cannot stand to the extent it contradicts a valid Michigan law.

While it may not be the best example of tightly drafted legislation; while it undoubtedly suffers from problems of perception and misconception, the MMA is a valid state law. The appellate courts will have no choice but to invalidate ordinances that limit the scope of the Act, or criminalize it’s legitimate purposes.

Once again, we pose the question: should marijuana just be outright legalized in Michigan?  We are interested in your view on this subject.  To weigh in, simply comment on this post or register a comment on the discussion board of our FaceBook fan page.

For more information about the MMA and its certification process, click on this link.

Ludington Update:  Bloomfield Hills is not the only municipality seeking to restrict the use of medical marijuana; check out the moratorium proposed in Ludington.

Royal Oak Update: Feb 3, 2011.  Now, Royal Oak is getting in on the act of restricting patients' rights under the MMA by proscribing grow operations within the city limits.

Ann Arbor Update:  Of all places, Ann Arbor is also getting in on the ordinance dance.  For its part, however, there seems to be a delay in bringing the issue to a vote, as the AA City Council continues to revise the proposed ordinance.  Compared to other municipalities, the ordinance proposed in Ann Arbor seems much more in-tune with the MMA.  As the city attempts to properly define the terms of its ordinace, one medical marijuana entrepreneur is challenging the ordinance in a law suit before it has even passed, claiming unconstitutional vagueness.

Montana Update:  For it's part, the Republican-controlled state legislature is poised to pass a bill repealing the MMA in that state.

info@clarkstonlegal.com

http://www.clarkstonlegal.com/

California's Proposition 19 lost by a vote of 56% to 44%.  If successful, the proposed law would have been the first in the country to legalize the recreational use of marijuana.

In Arizona, the medical marijuana proposition was too close to call as of Thursday, with the nays leading by less than one half of one percentage point.  That contest will most likely be called sometime today; looks like Arizonans will reject medicinal marijuana after all.

In California, the pot initiative lost because too few voters under age 26 turned out and moderate voters rejected the initiative.  Recent violence with Mexican drug gangs in both California and Arizona did not help either initiative.

Mixed messages float around the issue here in Michigan.  Recently, a huge pot-expo scheduled for the Pontiac Silverdome, billed as the largest pot-party in the world, was canceled at the last minute.

All this raises the questions: do we really need to legalize pot?  Is ours a pot-smoking nation?  Does marijuana have genuine palliative properties?

One of the major problems of perception with medical marijuana laws is that folks are simply going through the administrative steps to get "medically" certified to use pot, but are smoking on a recreational basis.

No good comes of a law that sets requirements that are perceived as a farce.  It would perhaps be better to legalize marijuana outright, then regulate its production, sale, and distribution.

California was really looking forward to billions in pot-derived state revenue.  Here in Michigan, there is confusion about who can legally grow pot and how it should be grown and distributed to "patients".  In Arizona, the question is too close to call 3-days after the mid-term elections.

Yeah, right.  Good luck with all that...

UPDATE:  A month after the election, it seems the "mainstream" media outlets are adopting the position asserted in the above blog post; medical marijuana certificates are being acquired to insulate recreational users from criminal charges rather than for legitimate palliative purposes.  Here's an article on this point from Nolan Finley in the Detroit News.


UPDATE on the UPDATE: Here's a great article from the Traverse City Record Eagle on this subject which details the case that most likely will go to the Michigan Supreme Court to test the viability and scope of the Michigan Medical Marijuana Act.

MORE UPDATES:  Now, the feds, via the DEA, have subpoenaed the Michigan Department of Community Health (the state agency in charge of administering the MMA) for all records relating to seven individuals under investigation by the DEA.  Read more here.

EVEN MORE UPDATES:  Now, Holland is getting in on the act, asserting it's attempt to "regulate" the MMA.  Here's the link.

info@clarkstonlegal.com

http://www.clarkstonlegal.com/

43rd District Court Judge Robert Turner says it is one of the worst pieces of legislation he has ever seen.  He made that assessment of the Michigan Medical Marijuana Act (MMA) back in June 2009 when dismissing pot growing charges brought by the Oakland County Prosecutor against Robert Lee Redden and Torey Alison Clark.

Last week, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson's reinstatement of the criminal charges against Redden and Clark.  Now, the accused Madison Heights couple will either have to plead or go to trial.

At the time of the raid on the couple's residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants.  Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA.  Their cards, however, had not been issued at the time of the raid.

At the couple's preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from "medicating" with marijuana while their applications to the State of Michigan's Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud.

Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana.  The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces.

Judge Turner made the following ruling:

For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that.  And Dr. Eisenbud is a physician licensed by the State of Michigan.  And that’s the only requirement that the statute has.  You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michgan.

So, based on that, I find section 8 does apply.  And I believe I’m obligated to dismiss this matter based on section 8 of the statute.

 Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court.  In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case.  Judge Anderson also questioned whether the couple could avail themselves of the MMA's affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot.

At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards.  To date, almost 30,000 certifications have been issued.

In their opinion last week affirming Judge Anderson, the Court of Appeals held that the MMA's affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated.  The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions.

The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was "reasonable" under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act.

The most interesting thing about the Court of Appeals' Redden decision is the scathing concurring opinion of Judge Peter D. O'Connell.  Judge O'Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to "elaborate" on some of the general discussion of the Act set forth in the briefs and at oral argument.

Elaborate he did.  Judge O'Connell's 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have "no acceptable medical uses."

In what will undoubtedly become a classic line from his opinion, Judge O'Connell writes, "I will attempt to cut through the haze surrounding this legislation."  The judge is skeptical that folks are really using pot to "medicate" and suspects that they are using the plant for recreational purposes.

He also takes note of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code.

Judge O'Connell next takes a tour de force through the legislative history of the MMA.  Here, we learn that the act was based on model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C.  The group advances both the medicinal and recreational uses of marijuana.

"Confusion", and lots of it, is how Judge O'Connell views the MMA.  In one of the many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:

Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law.  I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.

Euan Abercrombie, 1st year student at the Hogwarts school would probably remark; "Wow".

For their part, the criminal defense bar, commenting via listserv, have basically gone wild over the concurring opinion, with its multiple web site references and pictures of marijuana advertisements.  The consensus among the defense bar, however, is that the majority opinion is correct and that Judge Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act.

Finally, it seems that the Oakland County Sheriff and Prosecutor correctly anticipated last week's Court of Appeals' decision.  A few weeks prior to the issuance of the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way.

For some preliminary guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for legitimate palliative purposes under the Act.  Take note, however, that at least one appellate jurist would have folks managing chronic "pain" with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.

April 2011 Update:  As we've warned our readers, and as Judge O'Connell warned in his opinion, marijuana possession remains a federal crime.  This week, the feds raided a warehouse-style dispensary in Commerce Township.  The law enforcement action is covered in this article in the Oakland Press.

www.clarkstonlegal.com

info@clarkstonlegal.com

Last November, Michiganders legalized the use of marihuana for medicinal purposes. The resulting legislation, known as the Michigan Medical Marihuana Act (MMA), has been widely criticized for being vague and confusing. This blog post summarizes the act and addresses some of the questions now arising in communities with licensed users and care providers.

Shortly after last fall's election, the Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marihuana for medical purposes. The Act cited a series of findings related to the beneficial uses of marihuana in treating nausea, pain and other effects from a variety of debilitating medical conditions. The Act also notes that according to the FBI, 99% of all marihuana possession arrests nationwide are done pursuant to state, rather than federal law. It is important to note that possession of the drug remains illegal under federal law.

The MMA defines a "debilitating medical condition" as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea.  A "primary caregiver" is defined as, "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs."  A "qualifying patient" is "a person who has been diagnosed by a physician as having a debilitating medical condition."

The basic mechanics of the Act provide that qualifying patients and primary care providers (marihuana growers) must possess a "registry identification card", issued by the Department of Community Health.  Cardholders are not subject to arrest or prosecution for marihuana possession/distribution provided the patient keeps less than 2.5 ounces of smokeable pot.  Care providers are allowed to maintain up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the plant limitation.

Physicians also have immunity from prosecution relative to their certification of the patient's need for the drug, so long as they conduct an assessment of the patient's medical history.  A legitimate physician-patient relationship is required.

Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have been able to recommend a patient's use of marihuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors can also make notes regarding their recommendations in the patient's chart and can testify on behalf of a patient's medical use of marihuana in a court of law. The Supreme Court's Conant decision paved the way for passage of the MMA.

Primary care providers may receive compensation for their marihuana.  Selling marihuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.

Persons merely present during the use of marihuana for medical purposes likewise are not subject to arrest.

Sound too good to be true?  When marihuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is subject to a 2-year felony.  Also, driving while under the influence of marihuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains prohibited. And yes, it remains illegal to smoke in a jail or a penitentiary, regardless of your medical condition.

The Act sets a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential.  The delay of these regulations is giving way to some confusion among law enforcement and the public as to the parameters of legal vis a vie illegal pot possession. 

For example, a recent case out of   Madison Heights involved a couple arrested in March during a drug-raid. The couple had applied for their certification cards prior to their arrest and received the cards a month after their arrest. In dismissing the case brought against the two defendants, 43rd District Judge Robert Turner characterized the MMA as, "the worst piece of legislation I've seen in my life", according to the Detroit News.  Judge Turner's dismissal was appealed by the Oakland County Prosecutor where it is currently pending before Oakland Circuit Judge Lisa Gorcyca.

If you have been charged with use, possession or distribution of marihuana, or are interested in obtaining an identification card, contact our office to discuss your options.

Post Script:  This topic made the front page of the Sunday NYT on 11/29/2009.  Take a look.