Medical Marijuana is topic of ICBA Criminal Law Section meeting

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By Roberta M. Gubbins

Legal News

"The Supreme Court has just heard People v McQueen, which asks whether the Michigan Medical Marihuana Act permits the "sale" of marijuana between patients," said Matt Newburg opening the discussion of medical marijuana at the Ingham County Bar Association Criminal Law Section meeting held at the State Bar of Michigan on October 26th.

The issue said Newburg, "is the concept of 'sale'. Does the attachment of a price really affect whether someone is working in accordance with the statute? We said 'no.'

The Michigan Medical Marijuana Act (MMMA) under section 4a provides that a patient can "transfer less than 2.5 oz. (of marijuana)" to another patient and Section 4(k) of the statute prohibits the sale of marijuana to "anyone not authorized to use it, which is broader than 'registered qualified patients' as defined by statute."

The Controlled Substances Act prohibits delivery and transfer but doesn't mention sale, he noted. Our stance "was that the price was immaterial and you should look at the conduct of the individuals" to determine if a crime has been committed.

People v Bylsma, argued in the Court of Appeals, dealt with a situation where the defendant, a registered primary caregiver for two qualifying patients, leased commercial space to grow marijuana for his patients and allowed others to grow their plants in the same room.

The question, said Newburg, is "whether he is in possession of more than the 12 plants he is allowed by statute to grow." Newburg suspects the case will be remanded back to the trial court for further hearings because the patients sharing the space "couldn't select their own plants from the others in the room."

Ken Stecker from the Prosecuting Attorneys Association of Michigan (PAAM) entered the conversation. Stecker receives telephone calls everyday from Prosecutors across the state with medical marijuana questions.

"The two main issues I see are section 8 (Affirmative Defense and Dismissal for Medical Marijuana) and also the interpretation of what is a 'closed locked facility.'"

Other important cases according to Stecker are:

People v Koon, (301443) the Michigan COA held that Michigan's drug driving law still applies if the driver used marijuana under the Michigan Medical Marihuana Act (MMMA). Marijuana is a Schedule One drug under Michigan law, meaning it has no medicinal value or purpose.

People v Brown, (303371) In this case the detective got a search warrant but did not check the defendant's status under MMMA because the State Department of Community Health will not provide the police with any information concerning medical marijuana users based on name alone.

"The most important part of this decision is footnote five, which tells police that if you do have information that is uncontroverted (that the individual has a medical marijuana card) put it in the search warrant."

People v Klonick, (491 Mich 382) was a unanimous opinion that addressed the "wide open landscape of section 8 which provides a defense even to patients who don't have a medical marijuana card. The two big hurdles, in his opinion, for the patients are the "bona fide physician/patient relationship under section one and the restriction that patients possess only the amount of marijuana 'reasonably necessary' for their medical condition.

Stecker also recommended the attendees watch House Bills 4834, 4851, 4853 and 4856 that have gone through the House of Representatives and through the Senate Judiciary Committee and are before the Senate.

"One of the big issues is the (definition of) a bona fide physician/patient relationship that would include a physician having a counseling relationship with the patient and other indications. Another bill will include outdoor facilities as part of "closed locked facility" definition; there is a bill allowing a person with a felony on their record to be a primary caregiver as long as "you don't have a felony conviction involving illegal drugs' and a bill allowing individuals to apply every two years for a card, rather than every year."

Ken Stecker, with the Prosecuting Attorneys Association of Michigan and Matt Newburg, Newburg Law offices, were the speakers. Newburg has a blog, www.onmedicalmarijuana.com that highlights the latest views, arguments and cases on the issue of medical marijuana. Summaries of all the current cases on the topic are also available from Ken Stecker at: steckerk@michigan.gov.

Keeping with historical precedent that the Ingham County Bar Association criminal law section chairs be from the defense bar and the prosecutors office, the new co-chairs are Mary Chartier, criminal defense attorney, and John Dewane, Ingham County Assistant Prosecutor.

The next meeting of the section will be at 9:30 a.m. on December 7th at the State Bar Building in Lansing. The topic will be interviewing child witnesses and the forensic interview protocol. The speaker will be Lisa Kirsch Satawa, an experienced criminal defense attorney whose practices focuses on criminal defense, children's rights and juveniles charged with crimes. A "Surviving and Thriving" series is also being planned.

Published: Mon, Nov 12, 2012

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