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 is subjected to certain already classic judicial interpretations, with a good promise of much more to come.
The Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th phase to allow the cultivation and possession of marijuana for medical uses. The Act cited a series of findings associated with the favorable uses of marijuana in curing other, pain, and nausea effects from a range of debilitating health conditions. The Act also notes that in accordance with the FBI, 99 % of all marijuana possession arrests nationwide are carried out pursuant to express, rather than federal law. It is crucial that you note that possession of the drug remains against the law under federal law.
The MMA defines a “debilitating healthcare condition” as cancer, hepatitis C, HIV, glaucoma, along with other ailments along with additional chronic afflictions which cause pain and nausea. A “primary caregiver” is defined as, “a individual who is over 21 years old and who has agreed to help you with a patient’s medical usage of marijuana and that has never been convicted of a felony about illegal 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) must have a “registry identification card”, given by the Department of Community Health. Tens of thousands of uses have been processed; numerous thousands remain pending with additional filed every week; the demand for certification, for marijuana, is seemingly insatiable right here in Michigan.
The high demand is easy to understand. Cardholders will not be subject to arrest or prosecution for marijuana possession/distribution supplied the patient keeps under 2.5 ounces of smokeable pot. Care providers may manage up to 12 plants for every qualified patient; unusable, seeds, and stems roots don’t count toward the vegetation limitation.
Physicians have immunity from prosecution family member to their certification of the patient’s demand for the drug, so long as they conduct a review of the patient’s medical history. A legitimate physician patient relationship is needed.
Since the U.S. Supreme Court decided the circumstances of Conant vs Walters in 2003, doctors have had the opportunity to advocate a patient’s usage of marijuana (but cannot prescribe container 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 use of marijuana in a court of law. The Supreme Court’s Conant choice paved the way for passage of the MMA.
Primary care providers can receive compensation for their marijuana. Selling marijuana paraphernalia also is allowed under the MMA, and such paraphernalia can’t be seized.
Persons simply present during the use of marijuana for medical purposes similarly will not be subject to arrest.
Sound too good to be real? When marijuana is sent out to persons other than qualifying people, the registration card is revoked, and the provider is subject to a 2-year felony. Additionally, traveling while under the influence of marijuana remains against the law, as does smoking in public. use or Possession of container on school premises or on school buses remains prohibited. And yes, it continues to be illegal to smoke in a penitentiary or a jail, in spite 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 misunderstandings among law enforcement, some judges and the public as to what is legal and what is illegal.
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For instance, the 2009 Redden case from Madison Heights included a couple arrested during a drug raid. The couple had used for certification cards just before the arrest of theirs and got the cards a month after the arrest of theirs. In dismissing the case brought against the 2 defendants, 43rd District Judge Robert Turner characterized the MMA as, “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 where it was affirmed in 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 be required 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 container, some nominal cash, and also aproximatelly 21 plants which are small. 3 weeks before the raid, every single defendant had submitted to a medical certification examination with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently created Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA. Their cards, however, had not been given at time belonging to the raid.
At the couple’s preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were necessary to refrain from “medicating” with marijuana while their uses 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 rapport with Dr. Eisenbud.
Judge Turner stated that the MMA was confusing relative to what constituted a good amount of marijuana. The defendants in this case 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 some dismissal, even though they didn’t possess the valid medical card, because section eight says if they might demonstrate the fact that a doctor thought that they were more likely to receive a therapeutic benefit, and this doctor testified to who. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that is the sole requirement that the statute has. You do not need to be some form of physician, you merely should be a licensed medical doctor by the State of Michgan.
And so, based on that, I discover section eight does apply. And I believe I am obligated to dismiss this particular matter based on section eight of the statute.
Under the important 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 like a finder of truth in dismissing the case. Judge Anderson also questioned whether the few 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 the cards of theirs from the Department of Community Health before growing the pot of theirs.
At the time belonging to the Madison Heights bust, nevertheless, the couple could not received marijuana cards because the DCH had not begun issuing the cards. To date, virtually up to 30,000 certifications are issued.
In their September 2010 opinion affirming Judge Martha Anderson, the Court of Appeals held the MMA’s affirmative defenses were accessible to defendants although they didn’t have the cards of theirs at the time their pot was confiscated. The Court of Appeals held against defendants, nonetheless, on the basis that, at time of the preliminary examination of theirs in district court, their affirmative defense under the MMA was unfinished and therefore created fact questions.
The Court found the next fact failures being unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the volume of marijuana found in the residence was “reasonable” under the Act; and whether the marijuana was being used by defendants for palliative functions, 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 will have more directly tailored the affirmative defenses available in the MMA, and since he desired to “elaborate” on some of the common debate 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, manufacture and distribution of marijuana is still a federal criminal and additional notes that Congress has expressly discovered the place to have “no acceptable medical uses.”
In what’ll undoubtedly turn into a classic line from the opinion of his, Judge O’Connell is able to come up with, “I is going to attempt to cut through the haze surrounding this legislation.” The judge is doubtful that people are really making use of container to “medicate” and suspects that they are using the plant for recreational purposes.
He also takes note of the bad quality of the legislation to the extent that it problems with different provisions set forth in the Code.
Judge O’Connell future takes a tour de force through the legislative heritage of the MMA. Here, we learn the act was based on model legislation proposed by lobbyists referred to as the Marijuana Policy Project of Washington D.C. The team advances both the medicinal and recreational uses of marijuana.
“Confusion”, and lots of it, is how Judge O’Connell views the MMA. In among the 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 our Supreme Court has a final detailed interpretation of this act, it would be prudent for the citizens of this stage to stay away from all use of marijuana in case they don’t wish to take a chance of violating state law. I once again issue a stern warning to all: please do not try to translate this particular action on ones own. Looking over this act is akin to taking part in the Triwizard Tournament discussed in harry Potter and The Goblet of Fire: the maze that is this particular statute is very complex that the final result will only be known once the Supreme Court has had a way to review and get rid of the haze from this particular act.
Euan Abercrombie, 1st year pupil 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 photographs of marijuana advertisements. The opinion of all the defense bar, nonetheless, is that the majority opinion is right and that Judge Anderson, at the conclusion of the day, got it right; Redden wasn’t the cleanest event to dismiss under the Act.
The Oakland County Sheriff and Prosecutor correctly anticipated the Court of Appeals’ September choice. A few weeks prior to the Redden decision, they conducted a number of dispensary raids, ruffling lots of feathers along the way.
However, an application for leave to charm continues to be filed with the Michigan Supreme Court.
For additional procedural guidance, we’ve ready a legal manual for the MMA for those wanting make use of marijuana for legit palliative functions under the Act. Take note, however, that at least one appellate jurist would’ve men and women managing chronic “pain” with doctor prescribed meds until the medical marijuana mess is sorted out by our Supreme Court.
Redden just isn’t the sole event leading to some MMA consternation. Rodney Koon’s situation has been given notoriety. Koon was convicted of a misdemeanor since 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 the blood alcohol of his was within legal restrictions. Without enough money to appeal, Koon is saddled with the conviction of his, while he had a container card at time of the arrest of his.
Ordinances have sprung-up across the stage to truncate the scope of the MMA. Bloomfield Hills, for example, passed an ordinance in October in need of card carrying qualified medical marijuana users to register with the Bloomfield Township Police Department. The ordinance also requires the submission of your form on the authorities disclosing the “patient’s” drivers license number and particular date of birth, whether the individual has or rents the home of theirs, and determining exactly how a great many other clients share the home of theirs.
Moreover, the ordinance limits the number of medical marijuana patients that can live at a single tackle 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 which may have passed ordinances that limit the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or even both.
Now the ordinance is the topic of a lawsuit filed against the township by 2 crafty [their “clients” are John and Jane Doe] veteran criminal defense attorneys: Tom Loeb and Neil Rockind. The lawsuit, unquestionably moving 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. Of course, you will find legitimate medical marijuana users available, in spades, for who the MMA was developed to help. There’s also many “patients” whose medical records happened to be assessed with a passing glance by a doctor more enthusiastic about the high volume review fees than in deciding whether the individual has a real chronic problem of the kind necessary for the MMA. The LawBlogger questions how many certified users, of all the tens of thousands of backlogged applicants, are under the generation of 25; or are college kids whose only persistent problem is the desire of theirs to party down.
As these authorized challenges grind through the court system over another 2 or 3 years, the MMA is governed by death-by-ordinance on a township-by-township basis. Attorneys Rockind and Loeb remarked in their media conference announcing the lawsuit of theirs that the ordinance in Bloomfield Hills can’t stand to the extent it contradicts a legitimate Michigan law.
While it is probably not the top instance of firmly drafted legislation; while it undoubtedly is afflicted with troubles 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 that minimize the scope of the Act, or even criminalize it’s legitimate purposes.
This past fall, the latest election was a set back for progressive marijuana laws. California’s Proposition 19 sacrificed by a vote of 56 % to 44 %. If good, 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 way too few voters under age twenty six turned out and reasonable voters rejected the initiative. Recent violence with Mexican drug gangs in equally California and Arizona didn’t help either initiative.
Mixed messages float all over 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 actually need to legalize pot? Is ours a pot smoking nation? Does marijuana have honest palliative properties?
Among the main problems of belief with medical marijuana laws is that people are just going through the management actions to get “medically” certified to use pot, but are smoking on a recreational basis.
No good will come of a law that sets requirements that are considered a farce. It would perhaps be easier to legalize marijuana outright, then simply regulate its distribution, sale, and production.
California was really looking forward to massive amounts in pot-derived state revenue. Right here in Michigan, there’s confusion about who could legally grow pot and how it should be raised and sent out to “patients”. In Arizona, the concern is simply too close to call 3 days after the mid term elections.
So next, what can they be 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 an effort in order to discuss a system of bills that would amend the public health code therefore medical marijuana need to be dispensed by pharmacists, and also to classify medical marijuana as a lifestyle two controlled substance.
“It would seem that if the legislature ever passed these bills, they would 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 actually 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 that is last; year which is last, the bills that also would have allowed for 10 marijuana raising facilities to be connected with a drugstore, got no traction.
This year’s incarnation of the bills would essentially make all the creation of medical marijuana illegal, however, use would still be screened by law, Komorn said.
“It’s just like the stamp act, arcane and without any knowledge of what really is happening with patient needs,” Komorn said. “Bottom line, this is an effort to repeal the Michigan medical marijuana act.”
It’s impossible, Abel said, to demand dispensing of medical marijuana through pharmacies.
“They don’t have a supply, and no way to get it. There is simply no way for them to perform it,” Abel said.
Still, he’s resting easy with the thought that the bills are going not, and are really much more about grandstanding for political acceptance than they are about the Michigan medical marijuana law.
These days that the MMA is around long enough to create some interesting cases & controversies, we must wait until one of them percolates through the Michigan Supreme Court to be able to get a genuine feeling of this legislation. Our blog takes the position that the MMA is flawed and therefore, exposed to disappointment, so long as it is generally utilized to cover up recreational pot use. Maybe the most practical thing to perform at this time is exactly what Peter Tosh called for world-wide: just legalize it.