In Unanimous Decision, Michigan State Supreme Court Rules Michigan Medical Marijuana Act Trumps Motor Vehicle Code; Public Health Code
Posted on | May 22, 2013 | No Comments
With a roaring voice of liberty the Michigan State Supreme Court ruled unanimously in favor of Rodney Lee Koon, a registered qualifying patient in the Michigan Medical Marihuana Program who was charged with driving under the influence of a controlled substance.
Defendant, Rodney Lee Koon, was stopped for speeding in Grand Traverse County. During the traffic stop, defendant voluntarily produced a marijuana pipe and informed the arresting officer that he was a registered patient under the Michigan Medical Marihuana Act and was permitted to possess marijuana. A blood test to which defendant voluntarily submitted several hours later revealed that his blood had a THC3 content of 10 nanograms per milliliter (ng/ml).
The statute under which the prosecution charged defendant prohibits a person from driving with any amount of marijuana in his or her system: A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214.
Despite the Michigan Medical Marihuana enactment, marijuana remains a schedule 1 controlled substance. The Michigan Medical Marihuana Act, rather than legalizing marijuana, functions by providing registered patients with immunity from prosecution for the medical use of marijuana: 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 . . . for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana . . . . The statutory definition of “medical use” includes “internal possession.” Therefore, the Michigan Medical Marihuana Act shields registered patients from prosecution for the internal possession of marijuana, provided that the patient does not otherwise possess more than 2.5 ounces of usable marijuana.
But the MMMA does not provide carte blanche to registered patients in their use of marijuana. Indeed, MCL 333.26427(b) provides a list of activities that are not protected by the MMMA. Engaging in one of those activities removes a registered patient from the MMMA’s protection because he or she is no longer acting in accordance with the MMMA. One prohibited activity is driving while under the influence of marijuana: This act shall not permit any person to do any of the following: Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
The MMMA, however, does not define what it means to be “under the influence” of marijuana. While we need not set exact parameters of when a person is “under the influence,” we conclude that it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, taking the MMMA’s provisions together, the act’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. In contrast, the Michigan Vehicle Code’s zero-tolerance provision prohibits the operation of a motor vehicle by a driver with an infinitesimal amount of marijuana in his or her system even if the infinitesimal amount of marijuana has no influence on the driver.
The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with the Michigan Vehicle Code’s prohibition against a person driving with any amount of marijuana in his or her system. When the MMMA conflicts with another statute, the MMMA provides that “[a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana . . . .” Consequently, the Michigan Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana. The Court of Appeals incorrectly concluded that defendant could be convicted under MCL 257.625 without proof that he had acted in violation of the MMMA by “operat[ing] . . . [a] motor vehicle . . . while under the influence” of marijuana. If defendant is shown to have been under the influence of marijuana, then the MMMA’s protections will not apply, and the prosecution may seek to convict defendant under any statute of which he was in violation, including MCL 257.625(8).
It goes almost without saying that the MMMA is an imperfect statute, the interpretation of which has repeatedly required this Court’s intervention. Indeed, this case could have been easily resolved if the MMMA had provided a definition of “under the influence.” As the Legislature contemplates amendments to the MMMA, and to the extent it wishes to clarify the specific circumstances under which a registered patient is per se “under the influence” of marijuana, it might consider adopting a “legal limit,” like that applicable to alcohol, establishing when a registered patient is outside the MMMA’s protection. In sum, we conclude that the MMMA is inconsistent with, and therefore supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his or her failure to act in accordance with the MMMA. Accordingly, in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals, reinstate the judgment of the Grand Traverse Circuit Court, and remand this case to the 86th District Court for further proceedings not inconsistent with this opinion.
Michigan State Supreme Court – KOON RULING 05-22-2013
House bill would set up panel to umpire clash over federal, state marijuana laws
Posted on | April 18, 2013 | No Comments
A House lawmaker has introduced a bill to create a panel to referee the legal clash between federal and state laws over marijuana.
Officials in states that have approved pot for medicinal or recreational purposes have expressed growing frustration with the Obama administration’s Justice Department, which so far has failed to clarify its approach, given federal laws that criminalize marijuana use.
Rep. Steve Cohen, Tennessee Democrat, said the commission would create a “sensible policy” to address the conflict between state and federal laws, review possible revenue of marijuana taxation, and weigh the potential health benefits and risks associated with legalizing marijuana.
“Regardless of your views on marijuana, it’s important that we understand the impact of current federal policy and address the conflict with those state laws that allow for medicinal or personal use of marijuana,” Mr. Cohen said. “This conflict is only going to continue to grow over the next few years, and we must provide certainty to the millions of individuals and businesses that remain caught in a web of incompatible laws.”
The same day the bill was introduced, Attorney General Eric H. Holder Jr. told a House hearing that the Justice Department is still reviewing state policies in Colorado and Washington and deciding how the department will respond.
Mr. Holden also made it very clear he is against legalization and his department will consider marijuana’s impact on children when deciding how it will react.
The Cohen bill comes on the heels of a bipartisan bill to immunize marijuana users from federal prosecution in states in which use is now legal. The immunity would extend to businesses that grow, distribute and sell marijuana in those states.
In addition to Mr. Cohen, the bill’s sponsors included Republican Reps. Dana Rohrabacher of California, Don Young of Alaska and Justin Amash of Michigan.
Mr. Cohen’s bill would create a 13-member commission with five representatives appointed by the president and the rest appointed by the leaders of the House and Senate.
The issue of legalizing marijuana currently holds public support for the first time in history, according to a recent Pew Research survey showing that 60 percent of Americans believe the federal government should not enforce anti-marijuana policies in states in which it has been legalized. Some 52 percent now say marijuana should be legalized nationally, according to the poll.
In December, President Obama said the federal government would not prosecute marijuana consumers in the District of Columbia or 18 states that also allow patients with certain conditions to obtain prescriptions for medical marijuana. Officials in Colorado and Washington state also complain of deep uncertainty on policy following votes in both states in November to allow adults over the age of 21 to use marijuana recreationally.
Read more: http://www.washingtontimes.com/blog/inside-politics/2013/apr/18/house-bill-would-set-panel-end-clash-over-federal-/#ixzz2QqtD8yHL
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Marijuana effect on kids impacting feds’ response
Posted on | April 18, 2013 | No Comments
WASHINGTON (AP) — Attorney General Eric Holder is telling Congress that marijuana’s impact on children is a factor as the Justice Department decides how to respond to two states that have partially legalized the drug.
Holder made the comment Thursday at a House hearing when he was asked about initiatives passed last year by Washington state and Colorado.
Holder says that his department is continuing to review the initiatives, and has not made a decision yet on how to respond. It could sue to block legal pot sales from ever happening, on the grounds that they conflict with federal law.
President Barack Obama has said that going after marijuana users in states where it’s legal is not a priority.
Holder says that Obama hasn’t said he’s for legalization, adding that he isn’t either.
Council seeks counsel on new pot rules
Posted on | April 18, 2013 | No Comments
Douglas continued its pas de deux with medical marijuana rules Monday, postponing acting on two proposed ordinances until city council can meet with legal counsel regarding a pending Michigan Supreme Court case.
City manager Bill LeFevere told council, which April 1 passed the first reading of its new rules, that the court April 3 granted a leave of appeal to hear a case challenging a City of Wyoming medical marijuana ordinance.
The resulting ruling “could be a game-changer for us,” LeFevere said.
Council voted to table acting on both, pending further advice from its lawyer.
State voters in 2008 passed the Michigan Medical Marihuana Act allowing certified patient caregivers to assist as many as five patients and themselves with as many as 12 plants each, despite the fact marijuana remains an illegal drug under federal law.
Dispensaries have sprouted statewide since then. In the meantime, municipalities have been left to regulate local uses, knowing measures they pass could be overruled by local and/or appeals courts and the state, which in turn could be trumped by the federal government.
Douglas, whose voters approved the act by 79 percent, the largest in Allegan County, first addressed the possibility of a medical marijuana facility in summer 2010 when a prospective caregiver broached the subject.
The proposed use didn’t fit any city zoning because the caregiver would be growing, harvesting and processing plants, then dispensing them to approved users.
The zoning board of appeals passed responsibility for developing proper zoning to the planning commission, which drafted rules that allowed caregiver operations in commercial and light industrial districts only, not in homes.
Council, in April and again in November 2012, declined to pass the proposed rules, opting instead for six-month extensions of a medical marijuana moratorium. The latest is set to expire next month.
Douglas is not the lone local government to wrestle with medical marijuana regulations.
After neighboring Saugatuck Township saw two dispensaries open in spring 2010 along Blue Star Highway, its board passed a three-month moratorium on new facilities. Members asked the planning commission for guidelines to oversee sales of the substance.
Township board members, seeking more clarity from the state, later chose not to vote on planners’ suggested ordinance limiting dispensaries to home occupations.
Saugatuck city and Laketown Township do not have medical marijuana ordinances. Rules in other neighbor municipalities run a gamut from home operations to outright bans.
Douglas April 1 approved the first reading of new guidelines governing licensing and locations, noting by doing nothing the city risks being accused of not regulating land use.
One new ordinance would create a medical marijuana overlay district that permits growing operations in commercial zones along Blue Star Highway, mostly south of Center Street, and in light industrial districts on the city’s south side.
The second deals with licensing caregivers and growers for one year, including descriptions of how the applicant plans to keep the substance in a locked and enclosed facility.
Attorney Phil Erickson told city council April 1 that Douglas, in accord with state law, would allow registered primary caregivers to grow medical marijuana for as many as five qualifying patients plus themselves. No dispensaries, a term that implies distribution to more than five patients, would be permitted.
Growing operations would have to be at least 50 feet distant from residential districts; 1,000 feet from schools; and 500 feet from churches, public parks and libraries, and any other caregiver operation. Sites would not be allowed within the city-designated historic area.
Attorney Phil Erickson told Douglas council April 1 there was still pending case law that might bring more clarity, but members could amend the ordinances in the future if needed. Members two weeks later were not so certain.
“I’d like legal advice on what actions are next appropriate,” Eric Smith said
How To Obtain A Medical Marijuana Card In Michigan
Posted on | April 17, 2013 | No Comments
The Michigan Medical Marihuana Act (MMMA) was approved by voters in November 2008. The Michigan Medical Marihuana Program (MMMP), a function of the Michigan Department of Licensing and Regulatory Affairs, is the government body that administers the program.
To Qualify for the Michigan Medical Marijuana Program
•You must be a Michigan resident to be a registered patient in the Michigan Medical Marihuana Program (MMMP)
•You must submit an application form. There is a separate form for minors
•The fee cannot be waived, although it can be reduced under certain circumstances
Your application form, together with your fees, photo id and physician’s attestation to:
Department of Licensing and Regulatory Affairs
Michigan Medical Marihuana Registry
P.O. Box 30083
Lansing, MI 48909
Qualifying medical conditions for the Michigan Medical Marijuana Program
•Cancer
•Glaucoma
•Positive status for human immunodeficiency virus (HIV)
•Acquired immune deficiency syndrome (AIDS)
•Hepatitis C
•Amyotrophic lateral sclerosis
•Crohn’s disease
•Agitation of Alzheimer’s disease
•Nail patella
•PTSD (Post Traumatic Stress Disorder)
•Parkinson’s Disease
•A chronic or debilitating disease or medical condition or its treatment that produces one of more of the following:
(i) cachexia or wasting syndrome;
(ii) severe and chronic pain;
(iii) severe nausea;
(iv) seizures, including but not limited to those caused by epilepsy; or
(v) severe or persistent muscle spasms, including but not limited to, those which are characteristic of multiple sclerosis
•Any other medical condition or treatment for a medical condition adopted by the department by rule
Rules of the Michigan Medical Marijuana Program
•The MMMP cannot supply you with seeds or starter plants, or give you advice on how to grow medical marihuana
•Your physician must be a Medical Doctor (MD) or Doctor of Osteopathic Medicine (DO) licensed to practice in Michigan
•You must have an established patient/physician relationship with your “attending physician”
•Other licensed health professionals such as Chiropractors, physician assistants and nurse practitioners cannot sign the documentation
•The MMMP cannot refer you to a physician and does not have a physician referral list
•You, or your designated primary caregiver, may grow your marihuana
•There is no place in the state of Michigan to legally purchase medical marihuana
•The MMMP cannot find a designated primary caregiver for you neither does it keep a referral list of persons who want to be caregivers for patients
•You are not required to list a caregiver unless you are less than 18 years old
•Your caregiver cannot be your physician.
•If you decide to change your caregiver, it is your responsibility to notify him or her that he or she is no longer protected under the law
•The MMMP does not communicate directly with caregivers
•The MMMP will only speak directly with the patient
•All written requests to release information must be signed and dated by the patient
•The MMMP will not accept written or verbal requests for information from your caregiver or any other person without your permission.
•The Act neither protects marihuana plants from seizure nor individuals from prosecution if the federal government chooses to take action against patients or caregivers under the federal Controlled Substances Act