This report 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 is subjected to certain already-classic judicial interpretations, with a strong promise of much more to come.
The Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to enable the cultivation and possession of marijuana for medical applications. Cbd olie cited many findings related to the beneficial uses of marijuana in dealing with other, pain, and nausea effects from a wide variety of debilitating medical conditions. The Act also notes that in accordance with the FBI, ninety nine % of all the marijuana possession arrests nationwide are completed pursuant to talk about, rather than federal law. It’s crucial that you observe that possession of the medication remains illegal under federal law.
The MMA describes a “debilitating healthcare condition” as cancer, hepatitis C, HIV, glaucoma, and other illnesses along with additional chronic afflictions which cause pain and nausea. A “primary caregiver” is determined as, “a particular person who is over twenty one years old and who’s agreed to assist with a patient’s medical use of marijuana and that has never ever been convicted of a felony involving unlawful drugs.” A “qualifying patient” is “a individual who has been diagnosed by a physician as aquiring a debilitating medical condition.”
The essential aspects of the Act give that qualifying primary care providers and patients (marijuana growers) should possess a “registry identification card”, released by the Department of Community Health. Tens of thousands of applications are processed; many thousands remain pending with additional filed every week; the demand for accreditation, for marijuana, is apparently insatiable here in Michigan.
The higher demand is easy to understand. Cardholders are not subject to arrest or prosecution for marijuana possession/distribution that comes with the mower the patient keeps below 2.5 ounces of smokeable pot. Care providers are permitted to retain as much as 12 vegetables for each qualified patient; stems, seeds and unusable roots do not count toward the vegetation limitation.
Doctors also have immunity from prosecution distant relative to the certification of theirs of the patient’s demand for the drug, so long as they conduct an analysis of the patient’s medical history. A legitimate physician-patient relationship is required.
Since the U.S. Supreme Court decided the circumstances of Conant vs Walters in 2003, doctors have managed to advocate a patient’s use of marijuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors also can make notes regarding the recommendations of theirs in the patient’s chart and can testify on behalf of your 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 can have access to compensation for their marijuana. Selling marijuana paraphernalia also is allowed under the MMA, and such paraphernalia can’t be seized.
Persons just present during using marijuana for medical purposes likewise aren’t subject to arrest.
Sound way too good to be true? When marijuana is sent out to persons besides qualifying individuals, the registration card is revoked, and the provider is governed by a 2 year felony. Furthermore, operating 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 yes, it is still illegal to smoke in a jail or even a penitentiary, irrespective of your medical condition.
The Act established a short timetable (120 days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential. The delay in the promulgation of these regulations gave way to misunderstandings among police, the public and some judges as to what’s legal and what is illegal.
For instance, the 2009 Redden case from Madison Heights involved a couple arrested during a drug-raid. The couple had used for certification cards just before their arrest and received the cards a month after the arrest of theirs. 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”, based on the Detroit News. Judge Turner’s dismissal was appealed by the Oakland County Prosecutor exactly where it was affirmed inside the Oakland County Circuit Court.
Earlier this year, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson’s reinstatement of the criminal charges against Clark and Redden. Today, the accused Madison Heights few will either need to plead or go to trial.
At the time belonging to the raid on the couple’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, many nominal money, and also about 21 plants that are small. Three weeks in advance of the raid, every defendant had submitted to a healthcare 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. The cards of theirs, however, had not been issued at the time on 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 applications to the State of Michigan’s Department of Community Health ended up being pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud.
Judge Turner suggested that the MMA was confusing family member to what constituted a good degree of marijuana. The defendants in this instance had been found with a half and an ounce; the MMA allows 2.5 ounces.
Judge Turner made the following ruling:
For reason, I believe that section eight entitles the defendants to a dismissal, despite the fact that they didn’t have the appropriate medical card, because section 8 says if they are able to demonstrate the point that a doctor believed that they were likely to receive a therapeutic benefit, thus this doctor testified to which. And Dr. Eisenbud is a physician certified by the State of Michigan. And that is the only real requirement that the statute has. You don’t be required to be any sort of physician, you just must be a qualified medical doctor by the State of Michgan.
Hence, based on that, I come across section 8 does apply. And I believe I’m obligated to dismiss this 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 incorrectly acted as a finder of fact in dismissing the case. Judge Anderson also questioned whether the few 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, however, the couple could not received marijuana cards because the DCH had not started issuing the cards. To date, about 30,000 certifications are given.
In their September 2010 opinion affirming Judge Martha Anderson, the Court of Appeals held that the MMA’s affirmative defenses were accessible to defendants despite the fact that they did not have the cards of theirs at the time their container was confiscated. The Court of Appeals held against defendants, nevertheless, on the basis that, at the time of the preliminary examination of theirs in district court, their affirmative defense under the MMA was incomplete and therefore created fact questions.
The Court found the next 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 purposes, as necessary for Act.
The most interesting thing regarding the Court of Appeals’ Redden choice will be the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately since he would have a lot more directly tailored the affirmative defenses accessible in the MMA, and because he wanted to “elaborate” on some of the common discussion 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 remains a federal criminal and further notes that Congress has expressly realized the plant to have “no acceptable medical uses.”
In what’ll undoubtedly turn into a classic line from the opinion of his, Judge O’Connell crafts, “I will attempt to cut through the haze surrounding this legislation.” The judge is skeptical that individuals are really making use of pot to “medicate” and suspects that they’re using the place for recreational purposes.
He also takes note of the low quality of the legislation to the level it conflicts with other provisions set forth in the health Code.
Judge O’Connell next takes a tour de force through the legislative heritage of the MMA. Here, we learn that the action was based upon model legislation proposed by lobbyists referred to as the Marijuana Policy Project of Washington D.C. The team advances both the recreational and medicinal uses of marijuana.
Lots, and “confusion” of it, is how Judge O’Connell views the MMA. In one of many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, for good, by the Michigan Supreme Court:
Until our Supreme Court provides a final detailed interpretation of this action, it will be wise for the people of this condition to stay away from all use of marijuana in case they don’t wish to take a chance of violating state law. I again issue a stern warning to all: make sure you do not try to translate this action on your own. Reading this act is like participating in the Triwizard Tournament discussed in harry Potter and The Goblet of Fire: the maze that is this statute is very complicated the final result will only be known as soon as the Supreme Court has had an opportunity to review and remove the haze from this action.
Euan Abercrombie, 1st year student at the Hogwarts school would most likely remark; “Wow”.
For the part of theirs, the criminal defense bar, commenting via listserv, have essentially gone wild over the concurring opinion, with its multiple web site references and pictures of marijuana advertisements. The consensus among the defense bar, nonetheless, is the fact that the majority opinion is accurate and that Judge Anderson, at the end of the day, got it right; Redden wasn’t the cleanest situation to disregard under the Act.
The Oakland County Sheriff and Prosecutor properly anticipated the Court of Appeals’ September call. A couple of weeks just prior to the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers in the process.
Of course, an application for leave to charm continues to be filed with the Michigan Supreme Court.
For additional procedural direction, we have ready a legal guidebook for the MMA for those wanting to use marijuana for reputable palliative functions under the Act. Take note, nevertheless, that at least one appellate jurist would have men and women managing chronic “pain” with prescribed meds until the medical marijuana jumble is sorted out by our Supreme Court.
Redden is not really the only situation leading to some MMA consternation. Rodney Koon’s case has been given notoriety. Koon was convicted of a misdemeanor as 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 the blood alcohol of his was within legal restrictions. Without enough money to appeal, Koon is stuck with his conviction, even though he’d a container card at the time of the arrest of his.
Ordinances have sprung-up across the condition to truncate the range of the MMA. Bloomfield Hills, for instance, passed an ordinance in October needing card carrying certified medical marijuana users to register with the Bloomfield Township Police Department. The ordinance also demands the submission of your form towards the authorities disclosing the “patient’s” drivers license number and date of birth, whether the patient owns or rents the home of theirs, and determining how a great many other people share the home of theirs.
In addition, the ordinance restricts the amount of medical marijuana patients which may live at a single address and prohibits growing medical marijuana just about anywhere in Bloomfield Township. Violation of the ordinance is a 93 day misdemeanor carrying a $500 fine.
Bloomfield Hills is among a number of municipalities that have passed ordinances that control the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or perhaps both.
Now the ordinance will be the matter 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 going to the Michigan Supreme Court, doesn’t 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 leisure pot users. Indeed, you can find legitimate medical marijuana users on the market, in spades, for who the MMA was created to help. In addition there are numerous “patients” whose medical records have been assessed with a passing look by a doctor far more enthusiastic about the high-volume review fees than in finding out whether the individual has a real chronic problem of the type required by the MMA. The LawBlogger ponders just how many certified users, of all the tens of thousands of backlogged applicants, are under the generation of twenty five; or are college kids whose only persistent condition is the desire of theirs to party down.
As these authorized challenges grind through the court system over the next two or perhaps three years, the MMA will be at the mercy of death-by-ordinance during a township-by-township basis. Attorneys Loeb and Rockind remarked in their press conference announcing their lawsuit that the ordinance in Bloomfield Hills cannot stand to the extent it contradicts a legitimate Michigan law.
While it may not be the very best example of tightly drafted legislation; while it undoubtedly is suffering from issues of perception/deception, the MMA is a valid state law. The appellate courts are going to have no alternative but in order to invalidate ordinances which limit the extent 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 fifty six % to 44 %. If successful, the proposed law would have been the pioneer in the country to legalize the recreational 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 reasonable voters rejected the initiative. Recent violence with Mexican drug gangs in both 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 probably the largest pot-party in the planet, was canceled at the very last minute.
All of this raises the questions: do we actually have to legalize pot? Is ours a pot-smoking nation? Does marijuana have honest palliative properties?
Among the key problems of perception with medical marijuana laws is that individuals are simply going through the administrative measures to get “medically” certified to work with pot, but are smoking for a recreational basis.
No good will come of a law that sets requirements that are perceived as a farce. It’d maybe be better to legalize marijuana outright, regulate its distribution, sale, and production.
California was really looking forward to enormous amounts in pot derived state revenue. Right here in Michigan, there is confusion about who can certainly legally grow pot and how it ought to be cultivated and sent out to “patients”. In Arizona, the question is too close to call 3-days after the mid-term elections.
Therefore next, what can they be 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 be able to discuss a system of bills that would amend the public health code therefore medical marijuana must be dispensed by pharmacists, as well as to classify medical marijuana as a lifestyle 2 controlled substance.
“It would seem that if the legislature ever passed these bills, they will be in conflict with the medical marijuana statute,” Abel said. “So they would need a 3/4 vote to supersede the law, and you know that they can’t even get 3/4 of the legislature to agree on lunchtime, not to mention this.”
Southfield-based lawyer Michael Komorn, who also can serve as the treasurer for the Michigan Medical Marijuana Association, said the bills resemble bills introduced year which is last; last year, the bills that also would’ve allowed for 10 marijuana raising facilities being affiliated with a pharmacy, got no traction.
This year’s incarnation of the bills would basically make each production of medical marijuana unlawful, however, use would still be screened by law, Komorn said.
“It’s like the stamp act, arcane and without any knowledge of what actually is happening with individual needs,” Komorn said. “Bottom collection, this is an attempt to repeal the Michigan medical marijuana act.”
It is impossible, Abel said, to demand dispensing of medical marijuana through pharmacies.
“They don’t have a supply, thus number way to get it. There is just no way for them to do it,” Abel said.
However, he’s resting simple with the idea that the bills are going nowhere, and are actually much more about grandstanding for political acceptance than they are about the Michigan medical marijuana law.
Today that the MMA is around long enough to create some interesting cases and controversies, we will have to wait until one percolates through the Michigan Supreme Court in order to get a true feeling of this legislation. Our blog takes the position that the MMA is flawed and so, subjected to disappointment, as long as it tends to be utilized to cover up recreational pot use. Perhaps the most practical thing to do at this stage is what Peter Tosh called for world-wide: just legalize it.…