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Drawing the Line Between “Drying” and “Dried”: Michigan Court of Appeals Clarifies the MMMA

drug attorney cass county

A recent opinion by the Michigan Court of Appeals has clarified standards for what constitutes “usable marijuana” under the Michigan Medical Marihuana Act or MMMA. The opinion in People v. Manuel has been described by some as a landmark decision on medical marijuana litigation in the State of Michigan. If you or someone you know has been accused of violating the Michigan medical marijuana laws, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

On May 14, 2014, Michigan State Police conducted a warranted search of the home of Iskandar Manuel. At the time of the search, Manuel was purchasing marijuana from another man. Upon further examination of Manuel’s home, police discovered a marijuana grow operation in his basement. Manuel was charged with the following offenses: delivering or manufacturing 20 or more, but not less than 200 marijuana plants; possessing marijuana with intent to deliver; maintaining a drug house; and possessing a firearm during the commission of a felony.

4 of the MMMA allows a defendant to “claim entitlement to immunity for any or all charged offenses” if the defendant sufficiently proves that he or she,” as stated in People v. Hartwick, “(1) was issued and possessed a valid registry identification card, (2) complied with the requisite volume limitations of § 4(a) and § 4(b), (3) stored any marijuana plants in an enclosed, locked facility, and (4) engaged in the medical use of marijuana.” As Manuel was in possession of a valid registry identification card, stored his marijuana plants in his basement behind a locked door, and was understood to be engaged in the medical use of marijuana, People v. Manuel turned on whether Manuel exceeded the MMMA’s volume limits, those which restrict a primary caregiver or qualifying patient to a certain number of marijuana plants and a specified amount of usable marijuana. As a qualifying patient and primary caregiver for five patients, the MMMA would allow Manuel to cultivate up to 72 marijuana plants and to possess up to 15 ounces (or approximately 425.25 grams) of usable marijuana. Additionally, as Manuel was in possession of only 71 marijuana plants, he was in compliance with the cultivation limit; the question remained, however, whether the same followed for MMMA volume limits.

In its definition of “usable” marijuana, the Court of Appeals referred to People v. Randall, an unpublished decision in which “dried” marijuana—marijuana considered to be in its complete or final state—is distinguished from “drying” marijuana—marijuana considered to be in an incomplete form. Thus, in its decision, the Court of Appeals defined “usable marijuana” as that which is “dried.” When the marijuana found in Manuel’s basement was first weighed, it measured 1,195 grams; however, when it was re-weighed, approximately a month and a half later, it measured 1,068 grams. Expert testimony offered by Manuel’s defense explained the disparity between the two weights—that of 127 grams—as caused by his marijuana being in “various states of drying” and therefore, not usable under the MMMA. The Court of Appeals accepted the explanation and dismissed all charges against Manuel.

The Court of Appeal’s decision in People v. Manuel has been cited as providing necessary clarity to the MMMA that ensures that medical marijuana patients and caregivers are not at risk to possible felony charges. As Michigan medical marijuana caselaw continues to evolve, it is important to understand those legal complexities surrounding this unique area of law. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County, at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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New Decision Offers Guidance on What Constitutes “Plant” Under Medical Marihuana

drug crimes attorney in Cass County
In a recent decision, the Michigan Court of Appeals gave greater clarity to the definition of a plant under the Michigan Medical Marihuana Act. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County.

Under the provision of the Michigan Medical Marihuana Act (MMMA), registered “patients” are permitted to either grow their own marijuana plants or to designate another person as a “caretaker” who is permitted to grow the plants for them. In either circumstance, the person growing the plants is subject to strict limits regarding the number of plants that they can maintain at a time – a patient cannot maintain more than 12 marijuana plants for their personal use and a caregiver is only permitted to maintain 12 plants per patient and cannot assist more than five patients with growing their medical marijuana.

If a patient or caregiver is found to be in possession of too many plants, he or she is in violation of the Act, and is subject to criminal penalties. However, the MMMA does not provide an exact definition of what constitutes a “plant”, and this lack of clarity has led to significant confusion regarding the status of “clones”. A clone is a term used to refer to a smaller cutting from a marijuana plant and that, given the proper care and conditions, can eventually become a viable marijuana plant. The practice of “cloning” a marijuana plant is quite useful for caregivers growing marijuana plants for their patients because it allows them to skip the germination period that is often required when starting a plant and because it allows them to quickly propagate especially desirable or healthy plants.

In People v Ventura, a recent Michigan Court of Appeals decision, the court considered for the first time whether such clones can be considered “plants” under the MMMA. In that case, the defendant was registered under the Act as both a patient and a caregiver for another patient, meaning that he was entitled to possess up to 24 plants. However, when police searched his house, they discovered that in addition to 21 marijuana plants, he possessed 22 clones that had been placed in “grow material”. In its decision, the Michigan Court of Appeals first noted that the MMMA did not explicitly provide a definition of a “plant”. It then sought to determine the ordinary use of the word by reviewing the dictionary definition of “plant,” but found that this definition provided little, if any, clarity.

Because the Court could not find any previous Michigan cases that spoke to this issue, it sought guidance from judicial opinions rendered in other jurisdictions. Ultimately it settled on a relatively simple test that it found in a federal case, United States v. Edge. Edge involved the sentencing of a federal defendant based on the number of marijuana plants he possessed. In Edge, the Sixth Circuit Court of Appeals concluded that a “marijuana cutting” (such as a clone), is a plant for federal sentencing purposes if there is readily observable evidence of root formation. In support of this test, the Sixth Circuit Court of Appeals stated that such a definition is in sync with the common use of the word “plant” and also found that the test would provide clarity because of how easy it was to apply.

Ultimately these justifications also proved compelling to the Michigan Court of Appeals, which adopted the Edge test. Applying this test to the facts in Ventura, the Court noted that the plants police had seized from the defendant had “hair-like fibers growing off the main root, with those fibers visible to the naked eye”. Because these root structures were “readily observable”, the Court found that the defendant possessed 43 marijuana plants and upheld his conviction.

Understanding the complex interactions between criminal law and the Michigan Medical Marihuana Act is a difficult task that requires specialized knowledge and constant attention to detail. If you or someone you know has been charged with a violation of the Michigan Medical Marihuana Act, contact the Peter J. Johnson Law Office, PLLC, a leading drug crimes attorney in Cass County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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