This report chronicles the implementation of the Michigan Medical Marijuana Act, passed via referendum in the 2008 general election. As expected, when applied to our human tapestry, the MMA has been put through some already classic judicial interpretations, with a strong promise of a lot more to come.
The Michigan Legislature passed the MMA on December four, 2008, making Michigan the 13th status to enable the cultivation and possession of marijuana for medical uses. The Act cited a series of findings associated with the essential uses of marijuana in treating nausea, pain and other effects from a selection of debilitating health conditions. The Act also notes that according to the FBI, ninety nine % of all the marijuana possession arrests nationwide are done pursuant to state, rather than federal law. It is crucial that you note that possession of the medication remains illegal under federal law.
The MMA is a “debilitating medical condition” as cancer, glaucoma, HIV, hepatitis C, along with other conditions along with other chronic afflictions which cause nausea and pain. A “primary caregiver” is determined as, “a person who’s no less than 21 years old and who has agreed to aid with a patient’s medical usage of marijuana and that has never ever been convicted of a felony about unlawful drugs.” A “qualifying patient” is “a particular person who’s been diagnosed by a physician as having a debilitating medical condition.”
The essential mechanics of the Act deliver that qualifying patients and primary care providers (marijuana growers) must have a “registry identification card”, given by the Department of Community Health. Tens of thousands of applications have been processed; numerous thousands remain pending with additional filed each week; the desire for certification, for marijuana, is seemingly insatiable right here in Michigan.
The higher demand is clear. Cardholders may not be subject to arrest or prosecution for marijuana possession/distribution that comes with the mower the patient keeps lower than 2.5 ounces of smokeable pot. Care providers are permitted to manage up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the vegetable limitation.
Doctors have immunity from prosecution distant relative to their certification of the patient’s need for the drug, as long as they do a review of the patient’s health background. A legitimate physician-patient relationship is required.
Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have had the opportunity to suggest a patient’s usage of marijuana (but cannot prescribe container by putting the recommendation on a prescription form). Doctors can also make notes regarding the recommendations of theirs in the patient’s chart and can testify on behalf of a patient’s medical usage of marijuana in a court of law. The Supreme Court’s Conant decision paved the way for passage of the MMA.
Primary care providers may collect compensation for their marijuana. Selling marijuana paraphernalia also is authorized under the MMA, and such paraphernalia cannot be seized.
Persons simply present during the use of marijuana for medical purposes likewise are not subject to arrest.
Sound way too good to be accurate? When marijuana is distributed to persons other than qualifying patients, the registration card is revoked, and also the provider is subject to a 2 year felony. Additionally, driving while under the influence of marijuana remains unlawful, as does smoking in public. use or Possession of container on school premises or on school buses continues to be prohibited. And of course, it is still illegal to smoke in a penitentiary or a jail, irrespective of the medical condition of yours.
The Act established a short timetable (120-days) for the Department of Community Health to promulgate laws for the administration on the possession/distribution credential. The delay in the promulgation of these regulations gave way to frustration among law enforcement, the public and some judges as to what’s legal and what is illegal.
For instance, the 2009 Redden circumstances from Madison Heights involved a couple arrested during a drug raid. The couple had made use of for certification cards ahead of their arrest and received the cards a month after their arrest. In dismissing the situation brought against the 2 defendants, 43rd District Judge Robert Turner characterized the MMA as, probably “the worst piece of legislation I have seen in my life”, according to the Detroit News. Judge Turner’s dismissal was appealed by the Oakland County Prosecutor exactly where it was affirmed with the Oakland County Circuit Court.
Earlier this season, 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 few will possibly need to plead or even go to trial.
At the time of the raid on the couple’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, many nominal money, and aproximatelly 21 plants that are small. 3 weeks before the raid, every single defendant had submitted to a healthcare certification examination 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. The cards of theirs, nonetheless, had not been released at the time of the raid.
At the couple’s preliminary evaluation before Judge Turner, the prosecutor argued that: a) the defendants were needed to refrain from “medicating” with marijuana while their opportunities to the State of Michigan’s Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient connection with Dr. Eisenbud.
Judge Turner stated that the MMA was confusing family member to what constituted a good degree of marijuana. The defendants in this case ended up being found with a half and an ounce; the MMA allows 2.5 ounces.
Judge Turner made the following ruling:
For that reason, I feel that section eight entitles the defendants to a dismissal, though they didn’t have the valid healthcare card, because section 8 says if they can exhibit the point that a doctor believed that they were more likely to obtain a therapeutic benefit, and this particular doctor testified to that. And Dr. Eisenbud is a personal physician certified by the State of Michigan. And that’s the sole necessity that the statute has. You do not need to be some form of physician, you simply must be a licensed doctor by the State of Michgan.
Hence, based on that, I come across section 8 does apply. And I imagine I am obligated to dismiss this particular matter based on section eight of the statute.
Under the appropriate 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 poorly acted as a finder of truth in dismissing the situation. Judge Anderson also questioned whether the couple might 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 just prior to growing their pot.
At the moment on the Madison Heights bust, nonetheless, the couple couldn’t received marijuana cards because the DCH had not begun issuing the cards. To date, almost 30,000 certifications are released.
In their September 2010 viewpoint affirming Judge Martha Anderson, the Court of Appeals held that the MMA’s affirmative defenses were available for defendants although they didn’t have their cards at the time their pot was confiscated. The Court of Appeals held against defendants, nevertheless, on the groundwork that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was unfinished and therefore created fact questions.
The Court found the following fact problems being unresolved at the judgment of the exam: the bona fides of the physician patient relationship; whether the volume of marijuana present in the residence was “reasonable” under the Act; and whether the marijuana was being utilized by defendants for palliative functions, as necessary for Act.
The most exciting thing regarding the Court of Appeals’ Redden choice is the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately since he will have a lot more directly tailored the affirmative defenses available in the MMA, and since he desired to “elaborate” on several of the general dialogue of the Act set forth in the briefs and at oral argument.
Elaborate he did. Judge O’Connell’s 30 page opinion very first notes that the possession, distribution and manufacture of marijuana is still a federal criminal and further notes that Congress has expressly discovered the place to have “no acceptable medical uses.”
In what will undoubtedly become a classic line from the opinion of his, Judge O’Connell can write, “I will attempt to cut through the haze surrounding this legislation.” The judge is suspicious that individuals are very making use of pot to “medicate” and suspects that they are making use of the plant for recreational purposes.
He also takes note of the bad quality of the legislation to the extent that it issues with different provisions set forth in the Code.
Judge O’Connell subsequent takes a tour de force through the legislative heritage of the MMA. Here, we learn that the act was based upon model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C. The group advances the medicinal and recreational uses of marijuana.
“Confusion”, and lots of it, is how Judge O’Connell views the MMA. In among many footnotes to the opinion of his, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:
Until the Supreme Court of ours has a final detailed interpretation of this act, it would be prudent for the people from this state to avoid all use of marijuana if they do not want to risk violating state law. I once again issue a stern warning to all: please do not try to interpret this action on ones own. Looking over this act is akin to participating in the Triwizard Tournament discussed in The Goblet and harry Potter of Fire: the maze which is this statute is so elaborate that the final result will just be known once the Supreme Court has had a chance to review and get rid of the haze from this action.
Euan Abercrombie, 1st year student at the Hogwarts school would definitely remark; “Wow”.
For the part of theirs, the criminal defense bar, commenting via listserv, have basically gone wild over the concurring opinion, having its multiple web site references and images of marijuana advertisements. The consensus of all the defense bar, nevertheless, would be that the majority opinion is right and that Judge Anderson, at the end of the day, got it right; Redden wasn’t the cleanest event to write off under the Act.
The Oakland County Sheriff and Prosecutor accurately anticipated the Court of Appeals’ September decision. A couple of weeks in advance of the Redden decision, they conducted a number of dispensary raids, ruffling tons of feathers along the way.
Obviously, an application for leave to charm continues to be filed with the Michigan Supreme Court.
For additional procedural guidance, we’ve prepared an authorized manual for the MMA for all those seeking make use of marijuana for legitimate palliative functions under the Act. Take note, nonetheless, that at least one appellate jurist would have folks managing persistent “pain” with prescribed meds until the medical marijuana jumble is sorted out by our Supreme Court.
Redden is not the only situation causing some MMA consternation. Rodney Koon’s situation has received notoriety. Koon was convicted of a misdemeanor as he admitted to police 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 limitations. Without sufficient finances to appeal, Koon is stuck with the conviction of his, even though he had a pot card at the time of his arrest.
Ordinances have sprung-up across the state to truncate the extent of the MMA. Bloomfield Hills, for example, passed an ordinance in October requiring card-carrying licensed medical marijuana users to register with the Bloomfield Township Police Department. The ordinance additionally involves the submission of your form on the authorities disclosing the “patient’s” drivers license number and particular date of birth, whether the patient owns or even rents the home of theirs, and identifying how a number of other clients share their home.
In addition, the ordinance limits the number of medical marijuana patients that could live at one address and prohibits growing medical marijuana at any place in Bloomfield Township. Violation of the ordinance is a 93 day misdemeanor carrying a $500 fine.
Bloomfield Hills is among many municipalities that have passed ordinances that restrict the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or perhaps both.
Now the ordinance will be the theme 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, without doubt heading to the Michigan Supreme Court, doesn’t seek money damages but rather, injunctive and declarative relief.
Township by township, the MMA is coming under fire for a glaring flaw: it’s a ruse for leisure pot users. Yes, there are legitimate medical marijuana users available, in spades, for who the MMA was designed to help. There are also various “patients” whose medical records were analyzed with a passing glance by a physician more keen on the high volume review fees than in figuring out whether the person has a genuine chronic condition of the type required by the MMA. The LawBlogger wonders how many certified users, of all the tens of thousands of backlogged candidates, are under the era of twenty five; or even are college kids whose only chronic problem is the desire of theirs to party down.
As these authorized challenges grind throughout the court system over the next two or perhaps 3 years, the MMA will be subject to death-by-ordinance on a township-by-township basis. Attorneys Rockind and Loeb remarked in their media conference announcing their lawsuit that the ordinance in Bloomfield Hills can’t stand to the degree it contradicts a legitimate Michigan law.
While it may not be the perfect example of securely drafted legislation; while it without doubt is afflicted with problems of perception/deception, the MMA is a valid state law. The appellate courts are going to have no alternative but to invalidate ordinances which minimize the range of the Act, or perhaps criminalize it’s legitimate purposes.
This past fall, the latest election was a set-back for progressive marijuana laws. California’s Proposition 19 lost by a vote of 56 % to 44 %. If effective, the proposed law will have been the pioneer in the country to legalize the leisure use of marijuana.
In Arizona, the medical marijuana proposition lost.
In California, the large pot initiative lost because too few voters under age twenty six turned out and moderate voters rejected the first step. The latest violence with Mexican drug gangs in equally Arizona and California didn’t help either initiative.
Mixed messages float all over the matter here in Michigan. Recently, a huge pot-expo due for the Pontiac Silverdome, labeled as the largest pot-party in the world, was canceled at the last minute.
All of this raises the questions: do we really need to legalize pot? Is ours a pot smoking nation? Does marijuana have genuine palliative properties?
Among the major concerns of perception with medical marijuana laws is that individuals are simply going through the management steps to get “medically” certified to use pot, but are smoking on a recreational basis.
No good comes of a law which sets requirements that are perceived as a farce. It’d possibly be better to legalize marijuana outright, regulate its distribution, sale, and production.
California was truly looking forward to billions in pot-derived state revenue. Here in Michigan, there’s confusion about who could legally grow pot and just how it should be grown and distributed to “patients”. In Arizona, the question is just 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, whom met earlier this year, in January, in order to discuss a system of bills which would amend the public health code so that medical marijuana need to be dispensed by pharmacists, and also to classify medical marijuana as a routine 2 controlled substance.
“It would seem that if the legislature ever passed these costs, they will be in conflict with the medical marijuana statute,” Abel said. “So they’d need a 3/4 vote to supersede the law, and you are aware that they cannot possibly get 3/4 of the legislature to agree on noon-time meal, much less this.”
Southfield-based lawyer Michael Komorn, who also serves as the treasurer for the Michigan Medical Marijuana Association, said the bills resemble bills introduced year which is last; year that is last, the bills that also would’ve allowed for ten marijuana raising facilities to be connected with a pharmacy, got no traction.
This year’s incarnation of the bills would in essence make all generation of medical marijuana unlawful, nevertheless, use would still be shielded by law, Komorn believed.
Recommended–> : dc weed shops
“It’s just like the stamp act, arcane and without any comprehension of what is really going on with patient needs,” Komorn said. “Bottom collection, this is an attempt to repeal the Michigan medical marijuana act.”
It is impossible, Abel explained, to require dispensing of medical marijuana through pharmacies.
“They do not have a supply, so no way to obtain it. There is simply no way for them to perform it,” Abel said.
Still, he’s resting easy with the theory that the expenses are going not, and are really more about grandstanding for political acceptance than they’re about the Michigan medical marijuana law.
Now that the MMA has been around long enough to produce a few interesting cases & controversies, we must wait until one percolates through the Michigan Supreme Court to be able to get a genuine sensation of this legislation. Our blog takes the position that the MMA is flawed and so, subjected to disaster, so long as it could be utilized to mask recreational pot use. Probably the most practical thing to perform at this time is exactly what Peter Tosh called for world wide: simply legalize it.