Medical Marihuana Act a 'hornet's nest'

By Roberta Gubbins

Legal News

Ken Stecker of the Prosecuting Attorney's Association of Michigan, described the Medical Marihuana Act as "a hornet's nest" during a recent meeting of the Ingham County Bar Association's Criminal Law Section.

For example, the definition of marihuana in the law is "usable" marihuana, which does not include the roots, stalk or seeds of the plant.

The big question, he said is "How do you obtain it?"

He pointed out several other issues with the law such as:

--Whether one qualifying patient can transfer marihuana to another.

"This is a huge issue," he said, "it (the law) doesn't give an individual the right to sell marihuana in the state for any purpose but the definition of 'medical use' is quite broad so in a recent case in Isabella County, two individuals in their business enterprise received marihuana from caregivers with the authority of their designated patients to sell that marihuana to other marijuana patients.

"They had about 200 patients.

"The court found that the patient-to-patient transfers fell soundly within the medical use of marihuana as defined by the act.

"The case, State of Michigan v. McQueen, is on appeal."

--How is the affirmative defense asserted?

"That is the $64,000 question. The cases are all over the map. You are entitled to an evidentiary hearing on the affirmative defense but in People v. Kolanek, the court held '...defendant's failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the Section 8 defense at trial nor from submitting additional proofs in support of the defense at that time.'"

--What constitutes a 'closed locked facility?'

"This is a definition that has two parts, one, an area equipped with locks, and, two, the space has a security device--what is a security device?

"People v. King is at the court of appeals on this issue. The circuit court ruled that since the defendant was present at the time of the arrival of the police--the plants were inside the house--he was therefore acting as a security device, limiting access to the plants. I believe this case will be reversed."

--What constitutes a public place?

"In the original act a public place was a place 'in view of the public' but that was taken out."

--Is a visiting qualifying patient allowed to have marihuana in our state?

"Yes, as long as it is within the confines of the law because we allow for reciprocity, we are only one of four states that allow that."

--Can an employer fire an employee for using medical marihuana?

"The act provides that nothing in the act shall be construed to require an employer to accommodate the ingestion of marijuana at the work place.

"If you are an employer I would recommend you put some sort of policy in place regarding the medical use of marihuana."

--What is the process to revoke a patient's card?

"For example, if I sell marihuana to Andrew and he is not a patient. My card is revoked, however, I can immediately apply for another card. There is no time set in the statute for that situation."

--Can law enforcement confirm that an application presented to them is valid?

"No, they can't. Not by lien, they can do it only through search warrants. The Michigan Department of Community Mental Health does not honor subpoena's. They only honor search warrants."

--When do you have to be a patient if raising the affirmative defense?

"In Kolanek, the court, looking at the affirmative defense section of the statute, held that the words 'has stated' meant that the person must have a physician's opinion regarding the use of medical marihuana before arrest."

Mary Chartier, defense attorney, noted that the phrase 'has stated' was defined by the Kolanek court as past tense but it is present perfect tense meaning the act of the physician is on-going.

"There is nothing in the statute that says you have to have seen a doctor before the arrest."

Stecker raised the issue of the clash between the OUID (Operating Under the Influence of Drugs) per se statute and the Medical Marihuana law, which provides "all other acts or parts of acts inconsistent with this statute do not apply to the medical use of marijuana as provided in this act."

"However, under the OUID law, driving with any amount of marihuana in your system is a violation of the law regardless of the reason for its presence.

"This is an issue with People v. Feezel, a Supreme Court opinion, in the dissent there is talk about the conflict between OUID and the Medical Marihuana statute, which stated that the voters chose that the medical marijuana law supercedes the OUID per se statute."

Chartier raised the issue of probation. The terms of probation do not include the use of medical marihuana, however, "the statute does indicate that 'any act or portion of an act that is in conflict with this act is inapplicable.' And generally, the more specific statute controls in situations of statutory construction, so the medical marihuana statute should control."

"Currently there are 15 Medical Marihuana states and the District of Columbia," Stecker said.

"Michigan is the only midwest state. There are 49,283 registered users, about 19,000 care-givers and 87,973 applications.

"The Department of Community Health is about 100 days behind in processing applications," he added.

"The law provides that an application is sufficient identification if 20 days have passed without receiving a registration card."

Published: Mon, Feb 21, 2011