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The Michigan Medical Marijuana Act: Michigan Marijuana Criminal Defense Lawyer Bruce Alan Block

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Recent News:

• April 17, 2012. Patients cannot drive with active THC. The Court of Appeals in People v Koon, ruled that the Michigan Medical Marihuana Act does not protect patients from being prosecuted for drugged driving (operating impaired by illegal drugs). The court rejected the argument that the state must prove actual impairment (i.e. erratic driving, lane weaving, etc.). A unanimous 3-judge appeal panel overturned two lower courts, deciding the pre-MMMA zero tolerance driving law applied to medical marijuana patients. So, a patient with any amount of active THC in their blood can be charged with driving under the influence (DUID). This is the same as drunk driving with all of the same penalties. It is a strict standard. Absent a change by the legislature or intervention by the Michigan Supreme Court, a medical marijuana patient who drives is presumed impaired if a blood test shows any active THC. There is no requirement that the state show actual impairment (as it would have to with prescription drugs). Case can be found on our  Marijuana Cases page.
• April 2012. Craigslist Posts. Police are reportedly contacting patients who advertise overages on Craigslist, obtain the overage, and then busting them. It is not known what type identification cards are being used to facilitate the transfer. The law is NOT clear on the legality of Patient to patient transfers. Most in law enforcement believe them to be unlawful and not within the scope of the Act.
• March 28, 2012. The Michigan Supreme Court agreed to review an August 24, 2011 appeals court decision which ruled that patient-to-patient sales were not allowed by the Act. The lower court decision had ruled that a dispensary which allowed P2P sales was a nuisance and the operators could be criminally charged, as the “medical use” definition of the Medical Marijuana Act did not include patient-to-patient “sales”.  A decision from the higher court is not expected until fall.
• March 22, 2012. In a Livingston County case where peace officers (a/k/a police) manufactured fake medical marijuana cards and bogus state driver's license in order to obtain medical marijuana from a dispensary, the trial judge ruled the defendants could mention medical marijuana at trial. A hearing will be held to decide if the police conduct was entrapment.
• March 20, 2012. From Bad to Worse. The attorney general's office is said to be educating law enforcement about the medical marijuana act. Raids on patients and caregivers are up. We hear cases where registered patients and caregivers are within limits, but special narcotic teams make subjective, on the spot, decisions that grow rooms, number of plants, or marijuana is somehow "not in compliance" because _____ (fill in the blank). Members of narcotic teams have been heard arguing amongst themselves over whether the person is in compliance (or not). The narcotic units seize everything, file notices of drug forfeiture, and the registered patient or caregiver is then charged with a drug felony(s). The blind leading the blind.
• March 13, 2012. MSNBC reported that a woman with an inoperable brain tumor which causes her to have seizures and chronic pain was kicked out of a San Francisco hospital. The hospital later stated: "Under federal and state law, a physician is at legal risk related to any activity that could be construed as prescribing medical marijuana to a patient."
• February  2012. The Michigan legislature is working on a set of bills that are supposed to amend and clarify the MMMA. The state Judiciary Committee is to take testimony from organizations and from the public through March 8th. Some proposed changes would give police more access to the state medical marijuana registry program; require that doctors personally review patients records, see the patient face-to face, and create and maintain records; and require a photograph on the MMMA cards.  None of the proposed legislation would address the issue of the state-legality of medical marijuana dispensaries.
• February 2012. The MDCH advised it will begin sending approval (or denial) letters to patients and caregivers within 3-4 weeks of receipt. The letters will have MMMA identification numbers in them. The MDCH identification number can be used by police to verify the letter's authenticity. This new procedure was implemented because the MDCH is months behind in printing the plastic cards (as of 1/31/12 it was printing MMMA cards from August 2011). The new procedure will expedite approval time, and more importantly, provide patients and their caregivers with an official approval to their application. Before, the patient and caregiver had to carry around their completed MMMA application, certification, check, and proof of mailing.
• January 2012. Ballot petition to legalize marijuana. A diverse group of Michigan citizens has begun collecting registered voter signatures to place the issue of legalizing marijuana on the November ballot. A total of 322,600 signatures are necessary to bypass the state legislature and put the issue directly to Michigan voters. More information can be found at their website: End Marijuana Prohibition. A similar signature drive in 2008 led to the voter passed Michigan Medical Marijuana Act. The ballot proposal reads:

A Petition to amend the Michigan Constitution Article 1, to add:

Article 1 Section 28. Repeal of Marihuana Prohibition.

For persons at least 21 years of age who are not incarcerated, marihuana cultivation, possession, bodily internal possession, sale, acquisition, transfer, delivery, transportation, religious, medical or personal use, or possession or use of paraphernalia shall not be prohibited, abridged, or penalized in any manner; nor subject to civil forfeiture; provided that no person shall be allowed to operate a motor vehicle while impaired by any substance.

• January 2012 Update. The focus is on two cases pending in the Michigan Supreme Court: People v King and People v Kolanek (read more). Neither is a medical marijuana dispensary case, but the decision expected in the spring should hopefully provide some guidance as to the proper interpretation of the Medical marijuana act (e.g., broadly or narrowly). Meanwhile, we continue to hear reports that dispensaries are being raided and closed in some counties but not others. As stated in our MMMA Pocket Guide:
  

  With Medical marihuana, it seems that we have returned to the olden days of the wild, wild west, when what the law was depended on who the Sheriff was. Whether a medical marijuana dispensary is "allowed" by the Act depends on which county you live in."  

  Both the county sheriff, county prosecutor, judges, and all state and local officials are elected by the same voters who overwhelmingly voted in favor of the Michigan medical marijuana act, giving it the highest margin of of passage of any medical marijuana state. An anti-medical marijuana incumbent prosecutor, sheriff, judge, township board member, etc., may well be surprised in November should the electorate decide to elect someone more sympathetic to medical marijuana.

• September 2011. Medical marijuana patients and caregivers cannot own or possess firearms. The federal Bureau of Alcohol, Tobacco, & Firearms (ATF) issued a policy letter, stating that those who use or possess medical marihuana cannot buy nor own any type of firearm. Since federal law does not recognize medical marijuana, and since marijuana is still a Schedule I controlled substance, anyone who uses or possesses marijuana cannot buy, sell, own, transport, possess, or receive firearms or ammo. In addition, a licensed dealer cannot sell a firearm or ammunition to anyone they have "reasonable cause" to believe is using or addicted to marijuana (despite state laws that allow it). The full letter can be found on our resource page:  Marijuana Cases
• November 10, 2011.  Seized pot cannot be returned. The state Attorney General issued an opinion that medical marijuana that is seized during an arrest cannot be returned to the patient or caregiver. Even though the possession was lawful under state law, and despite the fact that the MMMA requires that seized medical marijuana be returned, the A.G.'s office decided that a law officer would violate federal anti-drug laws by returning the marijuana, as they would be unlawfully aiding and abetting the illegal possession  and distribution of marijuana under federal law.
• September 28 2011. Patients cannot grow together. The state court of appeals ruled that patients and caregivers cannot grow together from a joint location. In State v. Bylsma, a case being defended by this law office, six MDCH registered patients and registered caregivers were using a single small grow room as an  "enclosed, locked facility." All had cards and all plants were accounted for. The appeals court, using an expansive definition of "possession" that predates the MMMA and is used in all drug cases, decided that the caregiver who leased the workspace "possessed" all of the plants, thus, he was over his allowed amount and was prohibited from claiming any defense under the Michigan Medical Marihuana Act. This is yet another attack on the MMMA, as the overwhelming evidence showed that the activity did not involve an exchange of money, but was solely for medical use. Not even family members or spouses can grow their medicine in a single facility under this very narrow interpretation; the only person who can access the plants is either the caregiver or patient. An appeal to the state supreme court is likely.
• August 30, 2011. Doctor certification for Section 8. The state court of appeals ruled that a person must have a MDCH registry card prior to the illegal conduct to be protected. Likewise, a person cannot assert a medical use defense unless they had a doctor certification prior to the illegal conduct. The appeals court had previously ruled that the ID card or physician's statement must occur before the arrest. (People v Reed).
• June 23, 2011. Finally. The Michigan Supreme Court has agreed to hear and rule on two important medical marijuana cases. It has not had a medical marijuana case before it since the Act was passed. At issue: whether a patient must have a doctor recommendation or certification prior to an unregistered use or possession, to be allowed to assert the Affirmative Defense of Section 8 (People v Kolanek); and whether an outdoor dog kennel wrapped in black plastic was a sufficient "enclosed, locked facility" as required by the Act (People v King). In both cases, state marijuana criminal charges were dismissed by the trial court, only to be reinstated by the Michigan Court of Appeals.
• June 17, 2011. Forty years ago this date, President Nixon, cited drug abuse as: "public enemy number one" and declared a "war on drugs."
• February 7, 2011. The Michigan Court of Appeals, in a split decision, ruled that a locked, chain link dog kennel that had been wrapped in black plastic was not "an enclosed locked facility." Thus, the defendant could not present a medical marijuana defense. The majority and dissenting opinion are a MUST READ for anyone who is a patient or caregiver: Marijuana Cases. This is yet another appeals' court ruling, in a series of recent decisions that have limited and severely narrowed the scope and thus the protections afforded by the Michigan Medical Marijuana Act. Update: The Supreme Court of Michigan has agreed to hear and decide this case.

For more Michigan Medical Marihuana headlines follow this link: Michigan Medical Marihuana Headlines.

 We are Knowledgeable about Michigan's Medical Marijuana Law 

Michigan Marijuana Lawyer and Criminal Defense Lawyer Bruce Alan Block thoroughly studied the Michigan Medical Marihuana Act and knows how to timely raise its defenses. Criminal Lawyer Block is a legal committee member of The National Organization for the Reform of Marijuana Laws (NORML), and is experienced with cases involving medical marijuana.

The Michigan Medical Marihuana Act – Webpage Outline

1. Introduction.
2. How to Apply for a Medical Marihuana ID Card.
3. State Website Resources.
4. How Michigan Compares with other States.
5. Where can I get Medical Marijuana or Seeds to Grow it?
6. Reciprocity with other States?
7. Lingering Questions – Retroactive Application?
8. The Catch-22 Questions!
9. Juveniles and Medical Marijuana.
10. Marijuana and Driving.
11. Parole and Probation.
12. Marijuana and Federal Law.
13. Full Text of The Michigan Medical Marihuana Act
14. Why and When Marijuana Became Illegal.
15. Affirmative Defense of Medical Marijuana to Criminal Charges.

Introduction

The federal government will spend about 10 billion dollars this year on anti-drug efforts, with roughly 51 percent of drug arrests arising from marijuana related crimes. Drug offenders in prison soared from 41,000 in 1980 to 494,000 in 2003, as a result of the so called "War on Drugs." According to the United States Department of Justice, 99 of every 100 marijuana arrests are made following state law. In November 2008, Michigan joined 12 other states who made marijuana legal for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington. Thereafter, New Jersey, Arizona, and Delaware became the 14th, 15th, and 16th medical marijuana states, plus the nation's capitol: Washington D.C.)

Some three years later, there is still a lot of confusion and questions about the Michigan Medical Marihuana Act passed by 63% of the voters in November 2008. When the law became effective on December 4, 2008, there were no application forms or procedures in place to implement the law.  In April 2009, the state began providing registration forms for patients and caregivers.

How to Apply for a Medical Marijuana Card

The Michigan Department of Community Health has issued medical marihuana registry application forms for patients who have chronic or debilitating diseases or medical conditions. In order to obtain a state-issued medical marijuana card, a doctor must have signed a certification stating that the patient's condition and resulting symptoms could likely be reduced by using medical marijuana. Some medical conditions that are automatically approved are: HIV/AIDS, cancer, glaucoma, hepatitis C, sclerosis, Crohn's disease, Alzheimer's, wasting syndrome, and other serious ailments that cause chronic pain, severe nausea, severe and persistent muscle spasms.

Once an application is received, the Michigan Department of Community Health has 15 days from receipt of the application to either grant or deny the application. If the state does not respond to a valid application (or renewal) within 20 days of receipt, the marijuana application is deemed approved/granted, and a copy of the application (or renewal) is deemed to be a valid medical marihuana ID card.  If approved, the state must send an identification card within 5 days. The state expects that 50,000 patients will be approved for the cards which must be renewed annually.

Once patients receive the medical authorization ID cards from the state, they are allowed to grow up to 12 marijuana plants for their personal medical use, and can possess up to 2.5 ounces of usable herb. If the person is physically unable or does not want to grow (or obtain) their own medical marijuana, they can designate a 'caregiver' who either procures or cultivates the marijuana for the patient. A caregiver cannot have a felony drug conviction and they must be state registered for each patient. Unlike Colorado, California, and other medical marijuana states, the Michigan marijuana law has no provision for marijuana dispensaries. Patient's applications and information will be held confidential.  ID card's can be verified only by law enforcement.

The new law does not require that doctors participate. Most medical doctors have not embraced the new law for different reasons.  Some think that there should be more controlled studies, others are nervous. In order to write scripts for controlled substances such as pain killers, sleeping pills, and narcotics, doctors must have a federal Drug Enforcement Agency (DEA) license number. Since marijuana is illegal under federal law, physicians are reluctant to sign their name to something that could endanger their ability to write prescriptions.

A medical marihuana application must have a doctor's signature on the physician's certification.  Since most doctors are unwilling to sign the certification, medical marihuana clinics have sprung up all over the state to assist applicants fill out paperwork and provide doctors who are willing to sign certifications.

State Website Resources

The State has a Medical Marihuana Homepage with information and links to forms and frequently asked questions. Cost is $100 to apply for the Medical Marijuana Card. Only an M.D. or a D.O. can sign a medical marijuana recommendation. For more information go to: State of Michigan Medical Marihuana Homepage.

How Michigan Compares with other States

For those who grew up in the 1960's and 1970's, the Michigan Medical Marihuana Act does not bestow a ticket to "light up and be happy," and relive the glory days. On the other hand, Michigan's law is more liberal than all but one other state. Only Nevada is more expansive and allows a patient to possess 18 plants, plus 6 mature plants, and 24 ounces of usable weed.

Since Michigan mandates some form of indoor growing, the yield will be less than outdoor plants. Nonetheless, the conventional wisdom is that the average yield of an indoor pot plant is about 1.2 ounces per plant; since indoor plants will bloom three to five times before dying, the annual yield of a 12 plant indoor marihuana grow site could be between 44 and 72 ounces. 

For a side by side comparison of all 15 states, State by State Comparison.

Where Can I get Marijuana or Seeds to Grow it?

In Michigan and most other medical marijuana states, you are on your own. So far, only California and Colorado have marijuana dispensaries where an approved medical patient can obtain marijuana and seeds.  Once you receive your Michigan medical marihuana ID card, in theory you are state-approved to grow and smoke marijuana; however, it is entirely up to you to figure out how.

California was bold with its law allowing marijuana dispensaries. But then again, California has the eighth largest economy in the world and thus has tremendous financial clout. Patients and caregivers should be aware that they cannot legally transport seeds or marijuana over state lines, in airplanes, in boats, or in trains, or by mail because they will violate federal anti-drug laws. The federal government is not required to abide by nor recognize state medical marijuana laws (but see discussion below).

Reciprocity with Other States

Michigan does not have any formal agreements with other states. However, the marijuana Act says a medical marijuana card or its equivalent properly issued by another state to a qualified patient has the same effect as a Michigan ID card. Generally, a 'visitor' is someone who has been in Michigan less than 30 days.

Lingering Question: Is the Law to be Retroactively Applied?

This was a hot issue when the Act was first passed. Since then, the Michigan Court of Appeals has held that the law is not to be retroactively applied. The case is being taken to the Michigan Supreme Court which will have the final say. The retroactive cases were ones where the defendant had a serious medical condition, and there was no argument that he would qualify for the medical marijuana ID card, and his case was pending when the law went into effect December 4, 2008.

Recently, the Michigan Court of Appeals closed a loophole in the law and ruled that in order to assert the Section 8 Affirmative Defense of medical use, a person must have consulted with a doctor and received some type of certification or recommendation to use medical marihuana prior to the arrest.

Update September 2011. Another appeals decision ruled that the ID card or physician statement must be received prior to the illegal conduct. The arrest date does not matter. This issue has been appealed and will be decided by the Michigan Supreme Court.

The Catch-22 Questions

The new Medical Marihuana Act creates some extremely interesting Catch-22 situations. The Marijuana Act allows a patient or caregiver to obtain marijuana from someone on the street, but the person selling it to them can be prosecuted for committing a crime. Similarly, patients can grow their own medical marijuana, but there is no place to legally purchase the seeds or plants. Nothing in the Act protects a patient from being fired from their job for using medical marijuana.

A patient or caregiver is required to keep their medical marijuana plants in a "secure locked facility," which would seem to suggest that the backyard garden is not the place to grow. Some states allow plants to be grown outside, which greatly increases the yield of harvestable pot. If you have marijuana plants growing in your living room window for natural sunlight, is this not the ultimate invite to a would-be-thief to break in and steal them or have your house raided by the police when a nosy neighbor reports it? There is also the issue of purchasing hydroponic grow lights and indoor growing equipment, which is expensive and can make you a potential target of drug enforcement authorities who are apparently monitoring the credit card purchases of grow light bulbs and hydroponic equipment.

It is rather surprising that Michigan does not limit size or distinguish between seedlings and mature, producing plants. Most of the other states specify that a patient can have a total of 6 plants, with 3 of them producing pot. According to unnamed sources, a good rule of thumb would be to have a combination of 4 seedlings, 4 medium sized, and 4 mature-producing plants so as to not go over the maximum.

With street marijuana costing between $100 – $400 per ounce, there is little doubt that most patients will probably choose to grow their own. A caregiver can grow 12 marijuana plants per patient for up to five patients. However, the law does not set any parameters as to how much the caregiver can be reimbursed for their services. This raises a very interesting question about how much a caregiver can legally be reimbursed for their services, and how does the caregiver report the income on his state and federal tax return? One assumes that the caregiver cannot keep part of the harvest as his reimbursement.

Juveniles and Medical Marijuana

Eligible juveniles, under the age of 18 can qualify to receive and use medical marijuana. The risks must be explained to them by their parent or guardian and two doctors must must give a written certification. Their parent or guardian must also sign the application and agree to be their caregiver.

Marijuana and Driving

The Michigan Medical Marijuana Act prohibits smoking marijuana while driving a car or operating any type of motorized equipment. The Act is silent as to what happens if you legally smoke and then drive at some point later.  There is no breathalyzer to determine when a marihuana driver is "impaired" or not.  The unofficial rule of thumb is don't smoke and drive. We have heard reports that a driver should wait a minimum of 4 or more hours before driving. Since driving while "high" carries with it the same stiff penalties as drunk driving, patients would be wise to exercise extreme caution and seek a designated driver. Visit our Marijuana Crimes page for more updates on cases that are pending in the appeals court.

Parole and Probation

For those who are on supervised release, such as parole or probation, the sentencing court can overrule the Medical Marihuana Act and refuse to allow an otherwise authorized patient to use or possess marijuana — even if they have a Medical Marijuana ID Card. When you are on probation or parole, you are on what is called 'conditional release,' meaning that your release is conditioned on your obeying all the probationary terms set by the court. If you do not follow them, your conditional release is revoked and usually you are put back in jail or prison.

Do NOT make the mistake of just assuming that because you have a Marijuana Medical ID Card you can continue to smoke marihuana while on bond, probation, or parole. You must understand that most of us (judges included) grew up when marijuana was demonized and strictly illegal; it still has a very negative stigma attached to it. It will be a long time before public perception of marijuana changes and it is accepted as a legitimate medicine. Many people still view medical marijuana as a smokescreen or sham, that these laws are nothing more than an excuse to allow undeserving people to get high.

So absent permission, smoking pot while on probation or parole will automatically lead to a probation violation for 'using illegal drugs or substances." Inotherwords, you must first ask and receive permission from the judge in your case so that you can continue to use marijuana during probation. You can argue that you have a medical condition that requires you to use it. Be prepared to bring in your medical documents and proof of your condition.  Many more judges are allowing medical marijuana use while on probation, provided that the probationer has a state-issued medical marihuana ID card.

Marijuana and Federal Law

There is at least some relief from the dichotomy of state laws that allow medical marijuana and strict federal laws that prohibit it. On March 18, 2009, the United States Attorney General, Eric Holder, held a press conference and stated that the new Department of Justice policy would be to focus on those who violate both federal and state law.

Then on October 19, 2009, the U.S. Department of Justice released a three page memorandum which directs federal prosecutors and federal agencies (DEA, FBI) to shift their attention away from medical marijuana cases, and instead to cases that involve violence, firearms, selling pot to minors, money laundering and other cartel or gang related crimes. 

This latest statement would seem to indicate that the federal government will slow down its targeting of medical marihuana users and caregivers that lawfully grow and possess marijuana under state laws. Whether the federal government will hold true to its pledge remains to be seen. With the daily death of common sense and the government's need to generate new sources of revenue, what will be done is anybody's guess.

UPDATE June 2011.  The federal government seems to be backing off of its promise. The DEA issued a subpoena to the Michigan Department of Community Health, filed a lawsuit and a judge ordered that the registry release information supposed to be confidential. See discussion on our Michigan Marijuana Cases Page 

More Medical Marijuana Information

• For the technically curious, click to read the full text of the Michigan Medical Marihuana Act.
• Read More: Why did Marijuana Became Illegal?
• Charged with a marijuana crime? Read More: Affirmative defense to Criminal Charges

• Disclaimer: It is our hope that everyone will strictly adhere to the Michigan Medical Marihuana Act's requirements. Please understand that the purpose of this webpage is strictly informational; nothing on this website or this webpage are intended to suggest that you violate any state or federal law. You are advised to seek your own personalized legal advice.