Medical Marijuana

Patients, Caregivers, Frequent Questions, Drug Crimes

Note: The Michigan Medical Marijuana Laws are CONSTANTLY changing by judicial and legislative revision. Not only are these laws in a state of flux, we are seeing that the courts and medical profession are not entirely in accord with the Michigan Medical Marijuana Program.

Our experience is that many doctors prefer to prescribe addictive medications for chronic disorders that can be alleviated with medical marijuana. In addition, there are courts that are disconnected from the use of medical marijuana by individuals that are in the court system.

Several states and localities have legalized or allow the medical use of marijuana. Since 2008, Michigan has allowed the use of medical marijuana. Per a November article in Crain’s Detroit Business, there are currently 178,629 active, registered medical marijuana patients in the State of Michigan. Inevitably, there will be a push for legal recreational marijuana possibly on the ballot as soon as 2016. Though many view the Reagan-era ‘tough on drugs’ laws as outmoded and ill informed, marijuana is still a locally and federally controlled substance. Much to the disadvantage of cardholders, the litany of inconsistent local, State, and federal laws often leads to confusion and arrest. Contrary to what many believe, having a valid patient or caregiver card does not automatically grant full immunity to all activity marijuana related. The medical marijuana law is an exception to Michigan’s criminal drug laws, and to not follow its regulations exactly may result in criminal charges.

Patient Eligibility, Legal Quantity

In order to be a Michigan Medical Marijuana Patient you must:

1. Have a qualifying condition (typically ‘Chronic Pain’);
2. Be certified by a physician;
3. Be 18 years of age (separate application for those under 18);
4. Fill out and comply with the MMMP application;
5. And pay the $60 or $85 fee (depending on whether you are applying for just yourself or a caregiver as well).

You can use marijuana with proof of a valid application (we have found police aren’t enthusiastic about this) or with a valid card. There are also protections (Under Section 8 of the MMMA) for individuals who have discussed medical marijuana with a doctor prior to being arrested.

Quantity that a patient may possess:

• 2.5 ounces of usable marijuana
• 12 plants
• Incidental amount of seeds, stalks, and unusable roots

Usable Marijuana or Plants?

Again, there is a disconnection between law enforcement, the courts and the marijuana community regarding the interpretation of what is considered “usable” marijuana or a “plant”. Therefore, it is our recommendation to act on the side of caution to avoid criminal felony charges for the illegal manufacture or possession with intent to deliver marijuana. Consider the following:

• Anything with a root system should be considered a plant
• Even dead plants can be counted as a “plant”
• Harvested marijuana is considered usable (what do you do when 12 plants mature at the same time and exceed 2.5 ounces?)
• Clippings with roots may be considered plants
• Harvested marijuana that is in the “drying phase” may still be considered usable

Caregiver Eligibility, Legal Quantity

In Michigan, you are not ‘prescribed’ marijuana. When somebody is certified there are no storefronts to purchase marijuana through (certainly not pharmacies for that matter). Rather, the law allows for an independent system of growers (‘caregivers’) that patients assign to procure marijuana from. This is somewhat counterintuitive and to the uninitiated can cause legal trouble. A caregiver is somebody has agreed to help a patient use medical marijuana by growing their plants. The criteria in Michigan to be a medical marijuana caregiver is as follows;

1. Be 21 years old;
2. Not have more than 5 qualifying patients;
3. And never have been convicted of a disqualifying crime (a felony in the last 10 years, a drug felony, or violent felony)

Caregivers may have 5 patients, or 6 if they include themselves. Patients, however, may only have one caregiver. Caregivers may have up to 2.5 ounces per patient and up to 12 plants per patient (6 patients including caregiver @ 12 plants each = 72 plants maximum) that must be kept in an enclosed, locked facility. If grown outdoors essentially the same requirements apply with the exception that it need not be enclosed at the base (it may not however be visible from adjacent properties).

Drug Related Crimes

Both caregivers and patients can legally possess a substantial amount of medical marijuana; up to 72 plants in the case of caregivers. However, we have found that law enforcement utilizes cooperating informants to crack down on grow operations that operate under the auspices of the medical marijuana laws. In addition, an otherwise compliant caregiver could face serious felony drug charges for the sale of marijuana to a non-patient or for having marijuana in an amount above the legally stated quantities.

It is a felony to sell (deliver) marijuana to a person that is not listed as a medical marijuana patient. In addition, a person faces criminal potential criminal charges for possession, or possession with intent to deliver, when a quantity of medical marijuana exceeds the legal limit(s) as defined for caregivers and patients.

Can Caregivers Sell to Anyone?
Answer: No. Only the patients with whom they are connected to through the registry. The sale of marijuana to any other party would constitute delivery and marijuana; a felony punishable by up to 4 years in prison.

Can You Get In Trouble for Improper Transport of Marijuana?
Answer: Yes. It is a misdemeanor pursuant to MCL 750.475 for the improper/illegal transportation of medical marijuana in a motor vehicle. The law requires that the marijuana be stored:

• In a case in the trunk or,
• In a case not readily accessible from the interior of the vehicle without a trunk

There are some courts that have found that this law is invalid, as it is in direct opposition to the medical marijuana act. In such an instance, a motion can be filed to that effect. Depending on jurisdiction Judges may or may not be receptive to such a motion.

Are State-Licensed Dispensaries Legal?
Answer: No. And moreover, other than caregivers transferring marijuana to their patients, patients cannot transfer it to one another per the seminal case People v. McQueen.

Can You Medicate With Resin or Hash Oil?
Answer: No. Hash oil or resin is considered an analogue drug in Michigan which not covered by the MMMA (See the case of People v. Carruthers). Possession of analogues is a felony that can carry up to 2 years in prison.

Can You Use Marijuana with a Card on Probation?
Answer: Possibly. Judges are, unfortunately, within their right to prohibit marijuana use to probationers. Your best shot is a letter from a legitimate doctor outlining how marijuana is part of a chronic pain management regime. Once again, Judges vary on this from one jurisdiction to another. Sometimes allowing medical marijuana use on probation can be established per part of a plea negotiation.

Can I Smoke Marijuana in my Car in a Public Place?
Answer: No.

Can Multiple Caregivers and Patients Store Their Plants in a Communal Facility?
Answer: No. For protection under the MMMA each 12 plants must be separated for each patient in different facilities.

Is it Legal to Drive after Medicating With Marijuana?
Answer: You may be charged with operating under the influence or impaired but a legal argument can be made regarding the THC levels. With or without a card, if you are caught driving with marijuana in your system you can be charged with Operating Under the Presence of Drugs or impaired driving. However, as established in People v. Koon, with a card the prosecution must prove an individual is ‘under the influence’ of marijuana. Unfortunately, there is no settled level of how to determine what THC level is acceptable and moreover many argue that roadside determinations are highly subjective. With the right set of facts these cases are potentially ripe with issues to argue at trial. While Michigan has not set any standards regarding THC levels, the law in Colorado provides:

Colorado law specifies that drivers with five (5) nanograms of active tetrahydrocannabinol (THC) in their whole blood can be prosecuted for driving under the influence (DUI). However, no matter the level of THC, law enforcement officers base arrests on observed impairment.

What is the Section 8 Defense?
A Section 8 defense allows individuals, without a medical marijuana card, to defend criminal marijuana charges on the grounds that there was a valid medical purpose. Effectively a physician must state in their professional opinion after a full assessment that the patient would benefit from marijuana. It must be shown the amount of marijuana was a reasonably necessary quantity. And lastly it must be established the marijuana was being used for a medical purpose.

This defense, which is available at trial or pursuant to motion, is highly subjective and receives different treatment depending on jurisdiction. Moreover, the contours of this law are always being reshaped by Supreme Court opinions. Practically speaking you are going to be better off getting a valid card than relying on this defense. Read Section 8 in it’s entirety here. This does not cover all situations, examples include driving under the influence of marijuana under the influence or smoking marijuana in a public place.

Drug Crime and MMMP Legal Representation

ABDO LAW has specialized in defending drug crimes for 35 years and stays abreast with medical marijuana politics, policies and legal developments. We support the use of medical marijuana for various chronic conditions and to manage pain as a substitute for addictive opiate based medications. Unfortunately, the court system does not always work in harmony with those that need medical marijuana. In addition, we are seeing many well-intentioned patients and caregivers that are charged with a felony or misdemeanor for violations of Michigan’s Controlled Substance Act. Our Firm has the knowledge, experience, and compassion to assist those being charged for marijuana and drug crimes in the Macomb, Oakland, and Wayne counties. Contact our Macomb County attorneys for a free consultation if you are being investigated or charged with any criminal matter. Your call is confidential and we will answer your most pressing legal questions and provide you with a same day appointment.

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