The Michigan Medical Marijuana Act: The First 24-Months
This article chronicles the implementation of the Michigan Medical Marijuana Act, passed via referendum in the 2008 general election. As expected, once applied to our human tapestry, the MMA has been placed under some already-typical judicial interpretations, with a strong potential of more to come.
The Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marijuana for medical purposes. The Act cited a series of findings related to the advantageous uses of marijuana in treating nausea, pain and other effects from a variety of weakening medical conditions. The Act also notes that according to the FBI, 99% of all marijuana possession arrests nationwide are done pursuant to state, instead of federal law. It is important to observe that possession of the drug remains illegal under federal law.
The MMA defines a “weakening medical condition” as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea. A “dominant caregiver” is defined as, “a person who is at the minimum 21 years old and who has agreed to assist with a patient’s medical use of marijuana 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 weakening medical condition.”
The basic mechanics of the Act provide that qualifying patients and dominant care providers (marijuana growers) must possess a “registry identification card”, issued by the Department of Community Health. Tens of thousands of applications have been processed; many thousands keep pending with more filed every week; the need for certification, for marijuana, is seemingly insatiable here in Michigan.
The high need is understandable. Cardholders are not unprotected to arrest or prosecution for marijuana possession/dispensing provided the patient keeps less than 2.5 ounces of smokeable pot. Care providers are allowed to continue 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 authentic 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 marijuana (but cannot assign 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 marijuana in a court of law. The Supreme Court’s Conant decision paved the way for passage of the MMA.
dominant care providers may receive compensation for their marijuana. Selling marijuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.
Persons merely present during the use of marijuana for medical purposes likewise are not unprotected to arrest.
Sound too good to be true? When marijuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is unprotected to a 2-year felony. Also, driving while under the influence of marijuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains extremely. And yes, it remains illegal to smoke in a jail or a penitentiary, in spite of of your medical condition.
The Act set a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/dispensing credential. The delay in the promulgation of these regulations gave way to confusion among law enforcement, the public and some judges as to what is legal and what is illegal.
For example, the 2009 Redden case from Madison Heights involved a associate arrested during a drug-raid. The associate had applied for 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 estimate Robert Turner characterized the MMA as, “the worst piece of legislation I’ve seen in my life”, according to the Detroit News. estimate Turner’s dismissal was appealed by the Oakland County Prosecutor where it was affirmed in the Oakland County Circuit Court.
Earlier this year, the Michigan Court of Appeals affirmed Oakland Circuit Court estimate Martha Anderson’s reinstatement of the criminal charges against Redden and Clark. Now, the accused Madison Heights associate will either have to plead or go to trial.
At the time of the raid on the associate’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, some moderate 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 established 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 associate’s preliminary examination before estimate 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.
estimate 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.
estimate Turner made the following ruling:
For that reason, I believe that section 8 entitles the defendants to a dismissal, already 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 assistance, 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 kind 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, estimate Anderson held that estimate Turner improperly acted as a finder of fact in dismissing the case. estimate Anderson also questioned whether the associate 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 associate 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 September 2010 opinion affirming estimate Martha Anderson, the Court of Appeals held that the MMA’s affirmative defenses were obtainable to defendants already 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 consequently produced 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 estimate Peter D. O’Connell. estimate O’Connell wrote separately because he would have more narrowly tailored the affirmative defenses obtainable 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. estimate O’Connell’s 30-page opinion first notes that the possession, dispensing and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have “no permissible medical uses.”
In what will undoubtedly become a typical line from his opinion, estimate O’Connell writes, “I will attempt to cut by the haze surrounding this legislation.” The estimate is skeptical that folks are really using pot to “medicate” and suspects that they are using the plant for as a hobby purposes.
He also takes observe of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code.
estimate O’Connell next takes a tour de force by the legislative history of the MMA. Here, we learn that the act was based on form legislation hypothesizedv by lobbyists known as the Marijuana Policy Project of Washington D.C. The group advances both the medicinal and as a hobby uses of marijuana.
“Confusion”, and lots of it, is how estimate O’Connell views the MMA. In one of the many footnotes to his opinion, the estimate 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 complicate that the final consequence 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 estimate Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act.
The Oakland County Sheriff and Prosecutor correctly expected the Court of Appeals’ September decision. A few weeks prior to the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way.
Of course, an application for leave to allurement has been filed with the Michigan Supreme Court.
For additional procedural guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for authentic palliative purposes under the Act. Take observe, however, that at the minimum one appellate jurist would have folks managing chronic “pain” with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.
Redden is not the only case causing some MMA consternation. Rodney Koon’s case has received notoriety. Koon was convicted of a misdemeanor because he admitted to police that he used marijuana to “medicate” earlier in the day that he was pulled-over by the police. Koon also admitted to consuming a beer, but his blood alcohol was within legal limits. Without sufficient funds to allurement, Koon is stuck with his conviction, already though he had a pot card at the time of his arrest.
Ordinances have sprung-up across the state to truncate the scope of the MMA. Bloomfield Hills, for example, 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 proportion 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 empowered 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 as a hobby pot users. Yes, there are authentic 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 to peek briefly by a physician more interested in the high-quantity review fees than in calculating 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 by the court system over the next two or three years, the MMA will be unprotected 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 firmly drafted legislation; while it undoubtedly suffers from problems of perception/deception, 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 authentic purposes.
This past fall, the recent election was a set-back for progressive marijuana laws. California’s Proposition 19 lost by a vote of 56% to 44%. If successful, the hypothesizedv law would have been the first in the country to legalize the as a hobby use of marijuana.
In Arizona, the medical marijuana proposition lost.
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 similarities?
One of the major problems of perception with medical marijuana laws is that folks are simply going by the administrative steps to get “medically” certified to use pot, but are smoking on a as a hobby 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 control its production, sale, and dispensing.
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.
So then, what are they smoking? That’s what Detroit-based Cannabis Counsel lawyer Matthew Abel is asking of the Michigan Senate Judiciary Committee, who met earlier this year, in January, in order to discuss a package of bills which would amend the public health code so that medical marijuana must be dispensed by pharmacists, and to classify medical marijuana as a schedule 2 controlled substance.
“It seems that if the legislature ever passed these bills, they would be in conflict with the medical marijuana statute,” Abel said. “So they’d need a 3/4 vote to supersede the law, and you know that they can’t already get 3/4 of the legislature to agree on lunch, let alone this.”
Southfield-based lawyer Michael Komorn, who also serves as the treasurer for the Michigan Medical Marijuana Association, said the bills are similar to bills introduced last year; last year, the bills which also would have allowed for 10 marijuana growing facilities to be affiliated with a pharmacy, got no traction.
This year’s incarnation of the bills would essentially make all production of medical marijuana illegal, though use would nevertheless be protected by law, Komorn said.
“It’s like the stamp act, arcane and without any understanding of what really is going on with patient needs,” Komorn said. “Bottom line, this is an attempt to repeal the Michigan medical marijuana act.”
It’s impossible, Abel said, to require dispensing of medical marijuana by pharmacies.
“They don’t have a supply, and no way to get it. There’s just no way for them to do it,” Abel said.
nevertheless, he’s resting easy with the idea that the bills are going nowhere, and are really more about grandstanding for political popularity than they are about the Michigan medical marijuana law.
Now that the MMA has been around long enough to generate some interesting situations and controversies, we must wait until one of them percolates by the Michigan Supreme Court in order to get a true sense of this legislation. Our blog takes the position that the MMA is flawed and consequently, exposed to failure, so long as it can be used to disguise as a hobby pot use. Perhaps the most shared sense thing to do at this point is what Peter Tosh called for world-wide: just legalize it.