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Bruce Alan Block, PLC
Attorney and Counselor at Law
Phone: (616) 676-8770

1155 East Paris Ave. SE, Suite 300

Grand Rapids, MI 49546

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Medical Marijuana Blog – Michigan Marijuana Lawyer

 

Michigan Medical Marijuana Blog

 

We have received innumerable questions asking for guidance on the Michigan Medical Marihuana Act. Below are questions and answers, so that you can read and be informed. We frequently add new entries, so check back from time to time.

 

Send your written questions about the Michigan Medical Marijuana Act to us via our Contact Page and we will try to post representative questions. All information received will be edited to protect privacy and to ensure clarity. 

 

The actual language of the Michigan Medical Marihuana Act is fairly short, which left a lot of grey areas. There are numerous cases from the appellate courts that have interpreted what the words of the MMMA mean. You can find a lot of additional information by visiting our other webpages. The answers below are nothing more than educated guesses based upon many years of criminal defense experience, lengthy review and analysis of the new Michigan Medical Marihuana Facilities Licensing Act (MMFLA), and knowledge of the law.

 

Please read the disclaimer below and realize that nothing on this page is meant to suggest that you violate any federal or state drug law.

 

Absolutely NONE of the answers are intended to be legal advice.

Noteworthy News

 

December 20, 2016:  The Michigan Court of Appeals issued a 2-1 Opinion, holding that the Improper Transport of Medical Marijuana Statute is superseded by the Medical Marijuana Act. Read more at our Improper Transport Page

 

CHANGES IN THE LAW EFFECTIVE 12-20-16: Be Sure to Visit our new Pages that discuss the 2016 changes to the Michigan Medical Marijuana Act, and the 2016 legislation that will create a seed to sale tracking system, and allow licenses for growers, manufacturers, lab testing, secure transporters, and dispensaries. Here are the links:

 

Be Aware: December 20, 2016, the Michigan Medical Marihuana Act 2016 Amendments became effective. The major changes involve a new definition of what is a marijuana "plant" and THC infused marijuana products are now expressly allowed. There were other changes as well. You would do well to read the Full Text of the changes, as amended, at this link: Michigan Medical Marijuana Act of 2016.

 

Questions and Answers:

 

Question.  I am a registered card holder and will be growing my own plants. What do I need to have attached to the door that goes into the grow room?

 

Answer. Nothing in the Michigan Medical Marihuana Act requires that you put a notice or any other type of paperwork on the door that leads to your grow room. The legal requirements are that the door always be locked and that only YOU have access to the medical marijuana plants. No one else can ever go in there for any reason. However, many patients and caregivers choose to put a photocopy of their medical marijuana card on the door just in case the cops would somehow gain entry to the house and search it when you are not home. This most often happens when the police perform a "knock and talk" at a home and someone at the house lets them in. The photocopy of your card on the door would alert the cops that you were a registered patient and thus state-authorized to possess up to 12 plants and 2.5 ounces.

 

Question. How can a judge overrule a doctor's advice and order that I cannot use medical marijuana while on bond (or probation)? The judge did not do this with my other drug prescriptions. 

 

Answer. A doctor cannot write a prescription for marijuana. Marijuana is on Schedule I of the Federal Controlled Substances Act. Substances on Schedule I cannot be prescribed to anyone, ever. Thus, a doctor cannot write a prescription for medical marijuana. When you applied for your medical marijuana state ID card, you saw a doctor who signed a recommendation that you be allowed to use medical cannabis under state law. The certification was only a doctor's recommendation — NOT a prescription. This is how a judge can order that you not use marijuana while on bond (or probation). Similarly, a judge can order that you not use alcohol or other drugs (legal or illegal) unless you have a prescription. If your medical conditions are severe, your lawyer can prepare a petition (also called a motion) and ask that you be allowed to use medical marijuana while on bond or probation, which we have seen granted. Typically, you will need a well written letter from the certifying doctor that explains your serious medical conditions and why you need marijuana to treat them.

 

Question: I am a registered cardholder. Can I use medical marijuana while I am on probation?

 

The answer is: it depends on your judge. The Michigan Court of Appeals in January 2017 ruled that a judge can prohibit a probationer from using medical marihuana while on probation even though they had a medical marijuana ID card issued by the state. However, we have handled many cases where judges have allowed a probationer to use medical marijuana on probation. Most courts will require a letter from your primary doctor explaining why your continued use is necessary. The general policy, in most courts where we practice, seems to be against allowing use of marijuana while on probation, absent special permission. In courts where it is automatically prohibited, you would need to file a special petition and have a hearing and ask your sentencing judge for permission to use. 

 

Question: Will I be able to keep my caregiver card and also obtain medical marijuana from one of the new provisioning centers?

 

Yes. Registered medical marijuana patients and their registered caregivers will be able to purchase marijuana from the new provisioning centers. They will be the only ones who are allowed to purchase marijuana. Their state-issued LARA ID cards will be scanned and verified through the yet-to-be-created Internet verification system prior to any sale. Caregivers will be allowed to either grow marijuana plants under the Medical Act for their patients OR they will be allowed to obtain medical cannabis for their patients at one of the yet-to-be-licensed dispensaries.

 

Question: I am an MMMA card holder and grow my own plants in a secure outdoor greenhouse. All my plants mature at the same time in late fall. I must grow enough for the whole year in order to keep myself supplied. Can I store the wet leaf and bud in my freezer and then thaw and dry it 2.5 ounces at a time as needed?

 

This question comes up a lot. As you can read further below, the MMMA does not allow you to store excess for later use, which runs counter to logic and farming practice. The answer to your question is: I think so. Remember the definition of "usable marijuana" under the MMMA provides that only DRY leaves and bud count towards the Section 4 limit of 2.5 ounces. So, in theory anyway, if the marijuana in your freezer was still "wet" (albeit in a frozen state) then it would not be "dry" and should not be counted towards the 2.5 ounce limit. The problem of course, is that the person that will make this determination is an on-the-scene police officer with little or no training on the medical marihuana act or marijuana cultivation. I suspect the police officer would ignore the fact it was frozen wet (and thus should still be considered wet), and would instead determine you were over your limit. Your attorney could argue the wet-dry issue, but attorneys cost money. You would of course also be able to assert a Section 8 defense in this scenario, as the only limit on quantity for Section 8 purposes is that the amount must be reasonable. If you are going to go down this road of freezing wet marijuana for later thaw and drying, you should make sure you have a solid medical doctor that has certified you, the kind that will come to a court of law and testify on your behalf at a Section 8 hearing. You would also be wise to be ready and able to quantitatively demonstrate how much you use a week, how much you lose to evaporation during the drying process, and be sure that the amount that is frozen computes to the amount you would need until the next harvest.      

 

Question: If edibles and oils do not fall under the Michigan Medical Marijuana Act, does that mean I am not allowed to travel with them? Even if they are in my trunk, in a lockbox, and I have my Medical Marijuana Card?

 

House Bill 4210 takes effect on December 20, 2016, and amends the MMMA to protect oils and edibles under Section 4 immunity. This is a MAJOR change in the law, as edibles and oils and the like were not protected by your state-ID card following a court of appeals opinion in People v Carruthers (July 2013). The 2016 amendment to the MMMA now defines "usable marihuana" as: "the dried leaves, flowers, plant resin, or extract of the marihuana plant. . . ." There is also a new definition of a "marihuana infused product" and an equivalency chart: one pound of a marihuana-infused product (i.e. brownies) equals one ounce of usable marijuana, 36 fluid ounces of a marihuana infused liquid (i.e. Simpsons Oil) equals one ounce of usable marijuana.

 

There are lengthy and onerous requirements for transporting marihuana oils, edibles, and marijuana infused products. You should consult the amended medical marihuana act to determine the transport requirements (follow link below, read Section 4b). Simply locking marijuana infused products in the trunk is not good enough. The amended law requires you to have a label on the marijuana-infused product that details total weight, manufacture's name, date of manufacture, name of person that gave you the product, and date you received it. The list is more extensive for caregivers. You can read the user-friendly, full text of the Amended 2016 Michigan Medical Marihuana Act at this link: 2016 Amended Michigan Medical Marihuana Act

 

Question: What will happen to current caregivers under the 2016 medical marijuana reform laws that were signed by Governor Snyder? 

 

Nothing. Nothing will change for caregivers who operate under the protection of the Michigan Medical Marihuana Act. Here is what will happen. The recent package of laws will create a new seed-to-sale network that will operate independently and outside of the MMMA. Patients and their designated caregivers will still have to qualify and register with the state just like they do now. The new dispensary laws will not get rid of existing caregivers or the 5-1 patient ratio. The major change is that registered patients (and their registered caregivers) will be able to purchase medical marijuana from state-licensed dispensaries (who will be supplied by state-licensed grow facilities). What this means, is that medical marijuana will be much more readily available to a much larger number of patients. As a practical matter, the number of caregivers might decrease simply because of the greater availability of ready-to-use marijuana at storefronts much closer to home.

 

Question. Are "plants" anything with roots even if they are just clippings from an adult plant? Are they "plants" or product if they are cut and hung up to dry? If hanging to dry for seven days and then trimming for three days, how long before the product is considered "dry" and therefore, "usable marijuana?" 

 

The Michigan Medical Marihuana Act was amended by House Bill 4210 that will be effective December 20, 2016. The new definition provides that a "plant" is a living organism that has an observable root system OR a cutting that is in a growth medium, such as water or soil. Under this new definition, a cutting would be considered a plant the moment you put it into water or soil. In contrast, stalks that have been cut from a mother plant are NOT plants – so long as the stalk does not have roots and it is NOT in a growth medium. These clippings are still considered to be part of the mother plant and their weight is not counted under the MMMA until the leaves and flowers are dry. 

 

The general rule for drying time is 5 – 7 days according to a state expert that testified at a hearing we held. There is no provision in the medical act to allow additional time for curing or trimming. Once dry, the leaves and flowers count towards the 2.5 ounce per patient limitation. The Michigan Court of Appeals just ruled (January 2016) that product that had been put through a drying machine for four days was dry and thus, was "usable marihuana." In our opinion, if product is dry to the touch – the police will consider it "usable."   

 

Question: Section 4a of the Michigan Medical Marihuana Act, states: "A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . ." Can you explain why this section does not provide valid medical marijuana patients protection against being fired for failing a drug screen?

 

Yes. Section 7(c) states: "Nothing in this act shall be construed to require. . . .An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana." You may remember the exemplary, paralyzed employee who was fired from WalMart for a positive drug screen. The case went to the Sixth Circuit Federal Court of Appeals, which decided that the MMMA does NOT regulate private employment. Read the court Opinion for a more detailed explanation. casias-v-walmart-sixth-circuit

 

Question:  Can I smoke marijuana will I am driving down the road or in a parking lot? 

 

No. A recent Court of Appeals opinion determined that smoking inside a car that is on the road or parked in an area generally open to the public, such as the parking lot of a private business, is still considered "public" and smoking marijuana in public is one of the prohibited acts contained in Section 7(b) of the Act. There is zero protection under the Act for smoking marijuana in public, whether inside a car or not. I suppose you could smoke in your car if it is parked inside your garage or in your backyard, as these areas are no considered "public," but this is not recommended, as a car that smells like marijuana is an open invitation for a police officer who stops you for speeding or other traffic infraction to conduct a warrantless search of you and your car.

 

Question. I am currently a card holder.  My wife is planning on getting a card and designating me as her caregiver.  Are there any regulations against this or pertaining to this since we live at the same address?

 

There is nothing in the MMMA that prohibits you from acting as your wife's designated, registered caregiver. Of course, any plants you cultivate for her must be in an enclosed, locked facility that she has NO ACCESS to. No hidden keys, no access at all. Your wife should keep her medical cannabis locked up in such a way that you have NO ACCESS to it. Same goes for you. Any medical marihuana that is drying or curing or finished should be kept locked up in your secure room until you actually give it to her (not more than 2.5 ounces at a time) and then she would need to lock it up away from you. You can possess 2.5 ounces for her and she can possess an additional 2.5 ounces. I know the "locking it up" part probably sounds strange, as any medications you get from a pharmacy do not have these restrictions. However, this is the law as it relates to medical marijuana under state law – even though you are married and live in the same house. You would do well to read the full medical marihuana act (especially the 2016 changes that will be effective in December 2016) and the information contained in this blog and other pages on this website to keep yourselves in compliance at all times.

 

Question: I have my Medical Marihuana card and know I am supposed to have my marihuana locked away in the trunk, however could I still get in trouble for having marihuana "crumbs" on the ground?

 

Yes. We have actually handled cases of persons who have been charged for marijuana crumbs on the floor of their car, marijuana residue out of a pipe, we even had one client charged for possession of marijuana because he had a partial flake of a leaf on his sweater. If there is enough marijuana to test, you will likely be charged as the police seem to look for any excuse. You should have your car thoroughly vacuumed and cleaned so that there are no "crumbs," and more importantly, so that it does not smell of marijuana. A cop that stops you for a minor driving offense will use the smell of marijuana as a pretext to search you and your car without a warrant. 

 

Question: I want to grow in a locked room above my garage. Am I allowed to if I have a child living in the house?

 

The fact that you are manufacturing medical marijuana in a locked room in your garage should not automatically make your house unsafe for the child(ren).The Medical Act specifically prohibits a restraint on custody or parenting time in Section 4(c) unless the behavior of the parents (or household members) creates an unreasonable risk of danger to the children who reside in the home that can be clearly shown. You should be aware that there have been highly publicized cases where children were removed from homes. For the most part, so long as the room is always locked and the children have absolutely no access to the plants or product should not impact your parenting rights. The children should also not be exposed to marijuana smoke at any time.

 

Use common sense. Children should NEVER be exposed to any aspect, whether cultivating or medicating. Don't let them anywhere near the medical marijuana. The grow room should always be locked, secured, and preferably, the kids should not even know it exists.

 

Question: I was wondering if they allow access of marijuana cards to individuals underage if their legal guardians approve? I'm 16 years old and I've been diagnosed with PTSD. I take 3 medications per day, not including my birth control and biotin, so I'm basically popping 5 pills a day and I hate it. I feel like a pill head and I'm ready to try other alternatives.

 

MMMA cards cannot be issued to someone under the age of 18 UNLESS, (a) your doctor has explained the potential risks and benefits to you and your legal guardian(s); (b) you must obtain written medical marijuana certifications from two (2) Michigan licensed doctors; and (c) a parent or legal guardian must agree to serve as your registered primary caregiver and control the acquisition, dosage, and frequency of use of the medical marijuana.

 

Question: I have my MMMA card. What happens if I move out of state? Can I still be part of the program if I am not a Michigan resident? I don't want to go back to pain pills.

 

In order for your MMA card to be valid, you are required by the Medical Act to be a resident of Michigan. Non-resident patients are not eligible to obtain a Michigan MMMA card. If you move to a different state that does not have a medical marijuana program, your Michigan card will be useless and provide no protections. If you move to a state that has a medical marijuana program, you should immediately apply for and receive a card from the new state of residence. A person's residency is usually decided by the following factors: what state issued your driver's license or ID card, in what state are you registered to vote, in what state do you own a house (or property), and most importantly in what state do you live a majority of the year.


 

Question. Do I need a card to trim Marijuana . I haven't used marijuana in several years , but I have been offered a job trimming.

 

Possessing an MMMA card might give you some protection, although the card does not guaranty you won't be prosecuted. As you can see from my answer to the next question, you really should not have any access to the plants at all for any reason, even to help harvest. We have seen patients who happened to be present at a grow facility trimming or tending plants charged under the criminal statutes because by being present they "possessed" the marijuana plants and product and their card did not provide immunity for them. 

 

Question. I am a registered caregiver, I have an outdoor grow in a green house. Can one of my patients be in there?

 

No. The MMMA has been interpreted by Michigan courts to only permit one (1) person to have access to the plants — ever. Either the patient OR the patient's caregiver can have access to the plants. The patient cannot help "trim" nor be in the same room as the plants, as the patient would then be deemed to legally "possess" them and thus he and the caregiver would both be outside the protection of the immunity provisions of the MMMA. You might still be able to raise an affirmative defense under Section 8 of the Act.

 

MICHIGAN MARIJUANA HOUSE BILLS – 4209, 4210, and 4827.

 

Question. I have heard that these bills were signed by the governor into law and will regulate medical marijuana. How will they impact me?

 

There are three bills that were passed through the House and Senate with super majority votes. One of the bills will now allow for THC-infused products such as Simpson's Oil, marijuana wax, and other medibles. The two other bills would implement a whole new system of large scale growing facilities of 500 – 1,500 plants, allow licensed dispensaries to sell to any card carrying patient, and implement a complicated transportation and tracking system to trace every ounce of marijuana from production to sale. The bills create an extensive regulatory bureaucracy that would call for over a hundred new state employees. The new system would be a closed-loop system, meaning that the only ones that could transfer marijuana or marijuana products in to the newly licensed dispensaries is someone licensed under the same law as a grower or processor. There are five new categories of licenses that would be awarded under the new law.

 

The new law is a radical game changer. It is very lengthy and complicated. We have spent a significant amount of time reading the fine print and are ready to give preliminary advice. Once these bills become effective we will be ready to help you through the lengthy application process of obtaining local permissions, permits, for a grow facility, dispensary, processing center, laboratory, or secure transporter.  

 

Question: Will caregivers and patients still have the right to grow plants since HB 4209 was signed by the governor?

 

Yes. All three of the pending bills will NOT undo the Medical Marijuana Act. The new closed-loop system will run alongside the MMMA. The change is that a patient or caregiver who has a bountiful harvest will no longer be able to unload their overages to a licensed dispensary or licensed processor. Any products the newly licensed dispensaries sell MUST come from newly licensed growers and processors after it has been tested at a licensed laboratory and transported via a secure transporter. Patients will still be able to grow up to 12 plants for their own use, and a caregiver will be able to grow 12 plants per patient up to their MMMA maximum.  

 

Question:  Will I be able to keep my caregiver and also obtain medical marijuana from one of the new provisioning centers?

 

Yes. Patients will be able to obtain medical marihuana from either their caregiver or one of the new provisioning centers. Caregivers will also be able to obtain marijuana for their patients from the new dispensaries. Patients can also elect to not designate a caregiver but instead grow marijuana for themselves. Either way, a patient and their caregiver will be eligible to be supplied by the new state authorized dispensaries. 

 

Question. As a patient, am I allowed to help my caregiver harvest what he has been growing for me? Is this affected if the caregiver has more than one patient (and more than 12 plants) in their normally unaccessible growing facility?

 

Most cops and prosecutors (the ones who decide to arrest and prosecute you) would say that no one, repeat, NO ONE except THE designated caregiver is allowed to access the plants or assist with harvesting. Ever. Period. The fact the caregiver has more than one patient does not change the answer. If you decide to assist, we suggest that the designated caregiver always be physically present in the room and in control of the plants and product. If he has to take a restroom break, then he locks up the room and all the product until he is done.

 

Question:  Can a patient use medical marijuana and drive a car?

 

Yes, so long as your ability to drive is not actually impaired by the THC. In a unanimous 7-0 decision, the Michigan Supreme Court ruled that the Medical Marijuana Act superseded the state's zero tolerance law. Prior to this decision, the presence of any amount of active THC would routinely lead to a drunk (drugged – OUID) driving conviction based on a lab test. 

 

Prosecutors must now prove some type of actual impairment (i.e. weaving, erratic driving, excessive speed, etc), just as they would with any other prescription drug. Less clear is what happens in the context of a Section 8 patient (not registered) who meets all of the affirmative defense criteria. One assumes the driver would have to first make a Section 8 showing, and then the burden of proving an actual impairment would shift to the state.

 

If you are not a medical marijuana patient, driving with any amount of active THC in your body can, and routinely does, lead to a DUID conviction for driving with the presence of illegal drugs. The zero tolerance standard means zero. Any amount of active THC is enough to convict you.

 

Question: I read that a registered patient can lawfully transfer medical marijuana to another registered patient. Is this allowed by the Medical Marihuana Act?

 

The Michigan Supreme Court ruled that transfers between registered patients, whether compensated or not, are not allowed. A recent Court of Appeals decision (2016) ruled that there cannot be any transfers by a patient or caregiver to anyone. The only transfers allowed by the MMMA is when a caregiver transfers marijuana to one of their patients. Section 4 immunity doesn't apply "because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.” A transfer between a Section 4 to a Section 8 patient or a Section 8 to a 8 patients is another question, which would require a long legal analysis. 

 

Question: I read that a caretaker can have up to 5 patients; but how many caretakers can a patient have? Also, is there a legal difference between possession and storage, can a caretaker store his or her product in larger quantities than the limits in case there is a disruption?

 

The Act does not set a limit on how many unofficial caregivers a patient can have. Section 6 of the MMMA sets a limit of 5 registered patients per registered caregiver. However, it is not known whether a patient can obtain medicine from a different caregiver, particularly where they are traveling out of state or should their caregiver be unable to provide their medicine. Logic would suggest the patient should be allowed to procure it anywhere – so long as they stay within the 2.5 ounce limitation.

 

Michigan law does not distinguish 'possession' versus 'storage'. Whatever is stored by a caregiver or patient is "possessed." There is no allowance for storage or stockpiling in case of a disruption in production. If you are over the Section 4 limit – you will be arrested, charged, and have to present a Section 8 defense.

 

Question: I am a patient who rents room in my house to a divorced man with custody of his kids. He does not use mj. Would a judge deem the house "unsafe" and change custody of the children to the ex-wife solely because I possess and use medical marijuana?

 

The Act specifically prohibits a restraint on custody or parenting time in Section 4(c) unless the behavior of the parents (or household members) creates an unreasonable risk of danger to the minor that can be clearly shown. There have been highly publicized cases where children were removed from homes. The law is simply unsettled. The fact that you possess and use medical marijuana should not automatically make your house unsafe for the children.

 

Use common sense. Medicate outside or in a well-vented room so his children are never exposed. Don't let the kids anywhere near the medical marijuana. Any grow room should be locked, secured, and the kids should not even know it exists. You may want to contact an attorney in your county.

 

Question: I have heard that police can come to your house for a 'knock and talk.' I am a patient and am scared they will smell marijuana and come busting in. How can I protect myself?

 

You are right to be scared, as we know many stories of this happening. As soon as the police smell (or think they smell) marijuana, most police officers think this is an open invitation to forcibly push their way into your home without a warrant.

 

The best advice? Never open the door. If you cannot resist the urge to talk – most people can't – then open a window. Tell them to go away. If the cops force their way inside your home, do NOT resist, this will only make things worse. Remember they have guns and presumed authority. You can always file suit against them for trespass or a Section 1983 lawsuit after the fact. Repeatedly tell them you are a patient/caregiver as you are handcuffed. Have the card in your pocket or in your hand if you cannot resist the urge to open the door. Best practice is to not talk at all about anything. Zip the lip.

 

We have witnessed vice officers testify in court that once the door was opened and they smelled a "strong odor of marijuana" they believed they could forcibly enter the house, sans warrant, over the homeowner's vehement objection to "preserve evidence." Remember, the police cannot lookup your address ahead of time to see if you are a patient or caregiver. When in doubt – don't open the door. Your home is your castle…keep the entrance secured. 

 

Question: Can you grow or use medical marijuana if you live in a school zone and have a child in the home?

 

Federal Law. Neither a patient nor a caregiver can distribute or grow marihuana within the federal 1000-foot Drug Free School Zone. Remember that Federal law does not recognize medical marijuana and the Michigan Medical Marihuana Act does not protect you from federal prosecution. If you live within 1000 feet (as the crow flies) of a daycare facility or school you can be charged with a sentence enhancement by the federal government if you are prosecuted. 

 

State Law. Michigan criminal law has a 500 foot drug free zone. However, the 500 foot statute explicitly exempts marijuana. If the substance is not marijuana and you own, possess, or use (or allow someone to use) a vehicle, building, structure, place, or area to manufacture a controlled substance other than marijuana (i.e., meth) you can be charged with a 10 year felony. If the manufacture occurs in the home of a minor or in the presence of a minor, it is a 20 year felony and/or a $100,000 fine. If the manufacturing location is within 500 feet of a home, business, school property, or church, it is a 20 year felony. Most likely you will be ok if you stay within the limits of the Michigan Medical Marihuana Act. It is not a crime per se (under state law) to manufacture marijuana in a school zone IF you have a card AND you are following the confines of the Medical Marihuana Act. 

 

Question: Does a patient or caregiver have to maintain plants at their primary residence or can it be a secondary location?

 

There is no requirement that a patient or caregiver grow plants at their home. Where you grow is only limited by local zoning laws and the requirements that plants be grown in "an enclosed, locked facility" that is accessible only by the caregiver OR the patient.  

 

Question: I was suspended because THC was found in my urine screen and I am worried about losing my job. I've worked for this company for 14 years, have an outstanding work ethic, never called in sick, and have excellent safety record. I was not impaired at work and have never smoked at work or before work. I feel they are discriminating against me.

 

The Act does not require that private employers allow an employee to use medical marihuana on or off the job. A private employer can fire anyone for failing a drug screen, so long as they treat all employees the same. If you are fired solely because of failing a drug screen you can still obtain unemployment benefits.

 

Wal-Mart's zero tolerance drug policy led to the firing of a handicapped, model, employee of the year. He used medical marijuana to control his muscle spasms and cancer. Wal-Mart was not unsympathetic and received a lot of bad publicity over the firing, however, they had a zero tolerance drug policy. Their actions were upheld by the Sixth Circuit Federal Court of Appeals. The actual language says: "Nothing in this act shall be construed to require. . . .An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana (Section 7(c))."

 

An employer is not required to fire an employee who tests positive for THC. Unless your employer is voluntarily willing to accommodate the fact you are a patient who uses marijuana, you may have to choose between your job or your medicine. You may want to take your medical records, doctor recommendation, and marijuana ID card to your employer and plead your case:

 

I am a licensed medical user, and am using this as medicine to control my pain. I am 100% willing to stop if you require it; but, I would much rather use medical marijuana because its side effects are minimal and it really helps. I hate narcotic pain meds because they make me drowsy. Marijuana it is not addictive and does not dull my senses like other pain killers. I will only use at night and weekends and… (add more here).

 

Question:  Where am I allowed to smoke my medical marijuana in Michigan? Do I have to be on private property, or can I smoke in public?

 

Section 7 of the Act contains restrictions on where medical marihuana may be used or smoked. You cannot smoke marihuana on any public transportation or in any public place. The Court of Appeals ruled in 2016 that smoking inside your car if it is in a public road, public place (i.e., a park), or other area readily accessible to the public (such as the parking lot of a private business) is a "public place" and is prohibited. The best place would probably be on private property, somewhere you will not bother others. 

 

Question:  I live in an apartment complex with my children. I called the police when I smelled marijuana and suspected neighbors below. They confirmed she was smoking but had an MMMA card.  Yet my children are being exposed because it comes through the vents into our apartment. Is she committing a crime and can I sue the complex?​   

 

We are not aware of a state law the neighbor is violating. Your concern is understandable, as children should not be exposed to any type of second hand smoke. This would be an issue to take up with the apartment complex. What are their rules for smoking cigarettes? You would do well to read your lease agreement and discuss the issue with management.​ You might want to try to discuss it with the neighbor and figure out a mutually acceptable solution.

 

Question. I work at __ and I'm also a medical marijuana patient for the last 2 years. The company has a handbook that says that they can fire anybody for using "illegal drugs" and it says except prescriptions….since the Medical Marijuana Act clearly states that my medicine is not illegal, then would they ever be able to fire me for smoking on site or being a little red eyed if they let everybody else take their prescription drugs to vicodin, xanax, etc.

 

Your job can fire you for using medical marijuana or testing positive even if you have a medical marihuana card. This is because marijuana is still a Schedule 1 drug and doctors cannot write prescriptions for marihuana. A doctor can only give you a "recommendation" that you use to obtain the state medical card, but the recommendation does NOT qualify as a prescription. In contrast, Vicodin and Xanax are substances that doctors can prescribe, and thus they would not be "illegal" to use or possess (unless of course the individual did not have a prescription). In addition, private employers are not bound by the terms of the medical marihuana act, its protections only apply to the state government or a state employer. 

 

Question. I have a relative coming in from California who has a medical card. They asked if they are allowed to visit Michigan dispensaries while they are here. I know Michigan participates in reciprocity, but I am concerned about how protected my relative is while obtaining, traveling, and medicating in Michigan with a California card. Will their card be treated just like a MMMA card while they are here?

 

Yes. The Medical Act specifically recognizes that a medical marijuana card or its equivalent from another state has the same force and effect as if it were a Michigan MMMA card. Your relative will have to abide by all of the same rules that apply to a Michigan patient, such as where the cannabis can be used, allowable quantities, and method of transport. The relative should visit this link MMMA Act and read the Act, as they are subject to it. Whether a dispensary will transact with your relative with an out-of-state card would depend on the dispensary. There is no requirement that dispensaries transact with anyone – ever. In fact the legality of such dispensaries has yet to be decided in this state.  

 

Question: I'm a licensed health professional, and my spouse is an MMMA patient. Can I be penalized professionally with regards to my licensure or revoked if my spouse grows their plants at our home if I do not participate in the cultivation or consumption of the marijuana?

 

The MMMA provides protection for those who are in the presence or vicinity of a registered patient who is medically using cannabis (which would include growing it). This protection is contained in MCL 333.26424(h). You should have absolutely no access to the plants being grown or to the marijuana unless it is in the actual process of being medically used (i.e. smoked, vaporized, etc.). Your spouse can ingest in your presence and you should be protected, but at all other times the medicine should be locked up, the plants inside a securely locked room to which you have zero access. 

 

Question: I was wondering about the legalities of a large grow or commercial grow operation. I have heard of certain cities giving licenses for 5 caregivers to grow within one place. Is there language within the medical marijuana law allowing for multiple caregivers to grow together?

 

The Michigan Supreme Court ruled that the Medical Marijuana Act does NOT allow collective growing by more than one person in People v Bylsma. The rationale given was that all 5 caregivers would legally "possess" all of the marijuana plants being grown because they have access to the plants of everyone. The fact that cities are granting licenses to do so does not make such a grow operation legal. The only way to not run afoul of the MMMA would be for each caregiver to have their plants completely separate inside an enclosed, locked room inaccessible to anyone else. The Michigan Legislature recently passed HB 4209 that will allow state-licensed grow facilities to cultivate up to 500, 1000, and 1500 plants. The law becomes effective on December 20, 2016.

 

Question: I have a question about my pregnant wife. My wife are I are both medical marihuana patients. Will the hospital test the baby when it's born for drugs, and if the baby test positive for marihuana can CPS take our child or give us problems? 

 

Yes, the hospital can test your baby for marijuana. It is a little known fact that the State requires that all newborn babies be screened for 50+ rare diseases and genetic disorders, including hearing, without your permission or knowledge. According to various sources, tests for illegal drugs are not standard nor required, but can be requested by a nurse or doctor who suspects the mother was abusing drugs during her pregnancy. If the baby tests positive, the hospital will contact CPS and cause you heartache. To avoid problems, your pregnant wife should not be using marijuana or illegal drugs until after the baby is born and she is no longer breastfeeding. 

 

Question: So long as you only have 12 plants can you grow in 2 separate areas, say 7 outside and 5 in a room inside your house? If have my card to smoke and no caregiver anymore, do I need a separate license to smoke?

 

The medical marihuana act allows you to grow in separate areas, so long as your total plant count does not exceed the total you are allowed. Make sure you carefully read the requirements for outside growing. (Section 3(d)). If you have an MMMA card and no caregiver, you are already state-authorized to grow up to 12 plants and to medicate yourself. You do not need a special license to smoke.

 

Question: My caregiver was busted by the police and all of the plants seized. The cops stated that because the neighbor could see inside of the fence it was not a legal outside grow. Will only the caregiver be charged or will myself and the other patients be charged? The reason I had a caregiver is because I have no knowledge on how to grow. Am I responsible to make sure the caregiver is following all of the laws?

 

I do not think you will be charged. In general, a person is not responsible for the actions of others. Also, the MMMA does not require that you investigate and ensure your caregiver is following the letter of the law. If YOU are in compliance with the medical marijuana act then YOU are immune from prosecution. There are, of course, cases we have handled where the cops busted a caregiver and then went to each patients' house, but that is the exception. The cops do not usually go after a caregiver's patients based on a caregiver's mistake.

 

Question. How to handle a situation of getting pulled over for a traffic violation while driving with medical marijuana? If I'm following the rules about a locked case in my trunk, should I tell the officer right away about the marijuana and my card? Especially if he says he smells marijuana/going to get drug dogs. Also do I need to show it to him if he asks to see it?

 

There is little constitutional protection in a car. Given the controversial nature of medical marijuana and marihuana in general, I am not sure why you would volunteer that you had pot in your trunk and a medical marijuana card. Usually, a police officer needs a warrant or your consent to search a trunk. What you do in this type of situation is make a judgment call. The problem with marijuana is no matter how much you THINK you are following the letter of the law, the law is subject to misinterpretation. Police officers have a lot of power, plus they have a badge and a gun. It may make sense to voluntarily open the trunk and show the officer — to avoid being detained on the side of the road for an hour or two while he gets a drug dog and a warrant. There is no requirement that the case be "locked," although most of the cops think so. I routinely advise people to use a locking box just to avoid aggravation. There is no law that requires you to show a cop your medical marijuana.

 

Question: I was recently put on probation for a year. My card expires before I am finished with probation, and I don't want to lose my caregiver. My physical card was seized. Am I prohibited from renewing my card while on probation and can I be violated for renewing it?

 

I am not aware of a state law that would allow a probation department to prevent you from renewing your MMMA card. Likewise, unless your judgment of sentence and terms of probation specifically prohibit you from renewing your card, renewing it should not be a probation violation. They can, of course, prevent you from using medical marijuana while on probation. 

 

Question: Two caregivers in same building with separate locked doors with the dividing wall 10 ft high, with a 4 ft gap from top of wall to ceiling. Does this dividing wall need to go all the way to ceiling?

 

It should be sufficient to put a roof on each of the rooms using some type of material such as chain link or the less expensive metal fencing often used on farms. I would not suggest plastic or plastic fencing. This way, air can circulate and moisture maintained without sealing each individual room. What you want to avoid it a situation where a police officer could argue that the room was not properly "locked and enclosed" as it did not have a ceiling on it. Whatever material you use for the ceiling, it should be permanently affixed to the walls with nails or screws.  

 

Question: The doctor of my 18 y/o step daughter is suggesting marijuana might help with her anxiety/panic disorder. There are 4 other people in this house. My wife, another step daughter and my son. How is having marijuana in our household going to impact the rest of us? Are we opening ourselves up to potential problems by having this in our house? If so, what can we do to protect ourselves?

 

It is a risk-benefit assessment: is the risk worth the gain? My experience suggests there is very low risk for those, like your daughter, who have a small personal-use stash and a medical reason. The manufacturers, growers, and caregivers who make transfers run into the most legal trouble. Should you decide to pursue this treatment route, only the daughter should have access to the medical marijuana. She must stay under the allowable 2.5 ounces at all times, and transport it properly inside a case in the trunk of the vehicle. She should figure out an alternative to smoking it (to avoid inhaling hundreds of carcinogens) and not expose the rest of you to the odor. She must keep it locked up all the time when it is in the house. Only she can access it. No sharing with curious siblings or friends from school. If she does these things the risk is very low for her and the family.


Question: I am already a caregiver. However, I made a few mistakes. I am being offered a deal of Maintaining a Drug House which is a 2-year high court misdemeanor. Everything I find tells me that you cannot be a caregiver if you have a felony in 10 years or a felony drug offense. I would still have neither of these technically. Will I be allowed to remain a care giver?  

 

Yes, you will be allowed to remain a caregiver as the Maintaining a Drug House charge is classified as a "misdemeanor" under Michigan law. However, you should be aware that this offense may be treated as a felony in other states and by the federal government, as they are not bound by Michigan's "misdemeanor" classification system. In general, any offense punishable by more than a year incarceration is considered a felony.

 

Question: Is it ever a violation of my probation to apply for and get a medical marijuana card? Also, if it is not a violation to simply have the card? Is it a violation to smoke?

 

It would not be a violation of your state-probation to obtain a medical marijuana card. Whether you are allowed to use medical marijuana is up to the sentencing judge in your case. Some judges allow patients to use medical marihuana while others strictly prohibit it and would automatically consider it a probation violation if you tested positive.  

 

Question: How old do children have to be before they can receive medicinal marijuana in Michigan?

 

There is no minimum age for children to be medical cannabis patients. However, the MMMA requires that a child under age 18 have written certifications from two different doctors, and one of the child’s parents must be the child’s caregiver and control the acquisition, administration, amount, and frequency of dosage.

 

Question: Can I live in a grow house that is run under my caregiver? Who is allowed to be in the house when the grow is in effect? The facility Is of course behind locked doors.


There is nothing in the MMMA that would prevent you from living in a house that has a medical grow in it. Of course, the grow area must be locked at all times and you should not have any access to it whatsoever, e.g., no hidden keys. So long as you have zero ability to access the grow area, neither you nor the caregiver would be violating the Michigan Medical Marijuana Act.

 

Question: Can a patient have multiple caregivers?


A patient can only have one (1) registered caregiver under the state-registered medical card program. Whether a patient can also have an additional Section 8 (non-registered) caregiver is an issue that will have to be decided by the Michigan Supreme Court. There is nothing in the plain language of the Act that would prohibit a patient from having a Section 4 caregiver and one or more Section 8 unregistered caregivers.

 

Question:  At the time my patient applied she was a minor (just a couple months from her 18th birthday) She has now turned 18. She has a minor green card. What could happen if she was found to have a 1/4 gram in her in her purse? Do the rules change since she is now 18 even though her card is a minor card?


It should not make a difference. However, the minor should apply for her adult card, as the MMMA requires that the minor’s parent be the minor’s primary caregiver and control the acquisition, dosage, and frequency of use of medical marijuana.

 

Question: If I am a registered caregiver do the police have the right to inspect my grow room for compliance without a warrant?

 

No. There are no "compliance officers" under the MMMA. However, if you do not allow them to inspect your grow room, the cops might prohibit you from reentering your home and seek and obtain a search warrant. Best practice: Don't Open the Door.

 

Question: Trying to understand what is allowed, PLEASE HELP! As a patient, without a caregiver, I understand I'm allowed 2.5 ounces of dried usable bud and 12 plants. If I harvest more than 2.5 ounces from my 12 plants, which we'll call 'overage', am I really supposed to destroy any overage? I can't donate or sell said overage to another patient, caregiver, delivery service or dispensary? Where then, do the dispensaries get their marijuana from? (And have much more than 2.5 ounces on hand!) I'm not understanding how it's legal for me to buy from a dispensary, but not visa versa, if I have overage and only transport 2.5 ounces in a given trip?

 

Your question typifies the confusion patients and caregivers have understanding the Act and how the legal system has tortured it. The courts have determined the MMMA is a "narrow exception" to existing criminal prohibitions. Their logic is, that unless the MMMA explicitly says you can — then you cannot. Existing criminal laws prohibit any possession, cultivation, or use of marijuana. So, unless the exception (the MMMA) explicitly says "you can transfer overages to a dispensary," or to a patient or a caregiver — then you cannot (because to do so is illegal under drug laws). You are correct there is no language in the MMMA that prohibits such transfers. The important point here though, is that the court system has decided nothing in the Act explicitly allows such transfers. The dispensaries that receive and transfer marijuana are operating in a shadow area of the law, and the "legality" of their operation depends on where they are located. The legal system has already determined that dispensaries and transfers between patients are illegal. The dispensaries that are still operating are doing so in counties where the sheriff and prosecutor have turned a blind eye to their operation. For example, dispensaries in Kent County have been routinely raided, shut down, and the operators charged with marijuana felonies. That same dispensary would have likely been allowed to continue operating in a different county…

 

Question: I was convicted of a felony 5 years ago. Can I still grow plants for myself?


Yes you would be allowed by the MMMA to cultivate up to 12 plants for your medical needs. A felony conviction only prevents you from being a caregiver, as a caregiver cannot have had a felony conviction for the last 10 years, and never have had one for a drug or assaultive type crime.

 

 

Question: I understand as a patient I am allowed up to 2 1/2 ounces of dried useable marijuana. My question is: since it's illegal to transfer medicine to anyone other than your registered patient, then what do I do with the remaining harvested marijuana that exceeds 2 1/2 ounces?
 

Section 4 of the Michigan Medical Marihuana Law does not allow you to possess more than 2.5 ounces at a time – ever. You cannot stockpile it nor give away nor sell it. This of course runs contrary to common sense and logic. Either you keep it and risk being in violation of Section 4's immunity or I suppose the other option is to destroy it. If you decide to keep it, you would not have immunity but you could raise the medical defense found in Section 8 of the MMMA.

 

Question: So if you are arrested for possession of marijuana (under an ounce), and you have an expired MMJ card. Is that when you can use the Section 8 affirmative defense?


That is one scenario where you could use the Section 8 defense. But there are many other times when Section 8 can be used. For example, suppose you are caught with more than 2 1/2 ounces, or caught with a joint and had never registered with the State. You could bring a Section 8 defense in both of these examples as well. Visit my Section 8 page for more information on the medical use defense. http://brucealanblock.com/medical-marijuana/marijuana-affirmative-defense/

 

Question: My wife has been diagnosed with bone cancer and is going to die. They give her a year to a year and a half. She has been prescribed to take Simpsons oil. She lives in an apartment and can't grow. I have my card and already grow for myself. Can she grow her 12 plants here at my house if she doesn't live here? Thanks.

 

She can grow at your house with immunity under section 4 of the MMMA only if you are her designated caregiver OR the room in your house where her plants are cultivated is locked and secure and only she can access it. You can have zero, zilch access to them, as any joint access destroys immunity for both of you (People v Bylsma). There is no requirement that she live at the location where she is cultivating her plants. As a practical matter, the cops won’t ever believe you cannot access the plants if they are located in your house. I think her designating you as her caregiver is probably the preferred approach. 

 

Question: I've been meaning to get my Medical Marijuana Card for a while, but am worried that employers might see it. I realize it's private records, but for some job applications they require you to waive your privacy rights and am worried that by doing so they then would be able to see it. If I get a card and don't renew it after two years, can it also be seen in my medical records years later?

 

 

There is no such thing as guaranteed privacy in this digital age. However, an employer should not be able to find your medical marihuana card or know it exists. The information is supposed to be private and accessible to anyone except the police and the State of Michigan. HIPAA laws should protect your medical records from potential employers as well. So, there is no guaranty, but the likelihood I think is low.

 

Question: I rent commercial property in Michigan. Can I grow my medicine along with another caregiver in the same room on this commercial property. The room is sealed and locked. However my landlord doesn't know.

 

You can grow from one location, but you each must have separate, locked rooms in order to be immune from prosecution. Any joint access to eachother's plants destroys immunity for both of you (People v Bylsma). 

 

 

 

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. Remember, marijuana remains strictly illegal under federal law and the penalties are severe. You are advised to seek your own personalized legal advice.

 


 

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Bruce Alan Block, PLC
Attorney and Counselor at Law
1155 East Paris Ave. SE Suite 300, Grand Rapids, MI 49546
Phone: (616) 676-8770

 

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