Friday, April 08, 2011
Medical Marihuana – An Evolving Standard
The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., went into effect on December 4, 2008. Over two years later, patients, lawyers, and judges are still trying to understand just how to follow and enforce it. This is not unusual – courts often take time to hash out the details on new statutes – but for now, those patients who have received medical marihuana cards run the risk of become guinea pigs in the system. To help you, here are some pointers on how to legally use medical marijuana.
1. Get a referral. The courts are questioning the legitimacy of several marihuana clinics in the state. Their concern is that no doctor-patient relationship exists before the doctor signs off on the use of medical marihuana. You can help ensure that your registry identification card is considered valid by having your primary care physician sign off on your card personally, or if they are unwilling to do so, by getting a written referral to a marihuana clinic. This also will help because your primary care physician can provide the necessary medical records to the marihuana clinic to verify the existence of your “debilitating medical condition.” The more the acquisition of the medical marihuana card resembles any other medical treatment, the more likely the courts are to affirm the legitimacy of the registry identification card.
1. Get your card first. The statute has some protections for individuals using marihuana for medical purposes without first becoming a qualifying patient. However, these protections, in the form of an affirmative defense presented to the jury at the time of trial, are expensive (because you must bring in your physician to testify that you in fact need and benefit from the use of marihuana) and difficult to prove. This is only exasperated by the fact that, though the bill passed with over 60% of the vote, the issue of medical marihuana is still politically charged, and particularly in regions like Berrien County, there may be members of your jury who are not inclined to let anyone get away with using the drug for any reason.
So how does getting your card first help you? If you wait until you receive your registry identification card labeling you as a “Qualifying Patient” before you use marihuana, your attorney can file a Motion to Dismiss to be heard by the judge prior to trial. At that hearing you need only prove that you were complying with the statute and that you have a legitimate card. If both are true, then the judge should dismiss your case.
2. Do not consent to an “inspection.” The MMMA, at MCL 333.26426, specifically states that possession of or application for a registry identification card cannot be used to establish the required level of suspicion to justify a search of your person or property, which includes your home or vehicle. However, because the MMMA only protects those who have the cards, police will still investigate reports that someone is growing marihuana. If the police come to your home on such an investigation, show the officers your registry identification card (you may even want to keep photocopies of it and give one to the officer), but then politely decline to allow them to search your property. Ask them to show you a search warrant and let you read it before you let them into your home. Be polite and cooperative, but do not let them into your home without first reading the warrant.
3. Only keep the permitted amount of marihuana. The MMMA places very precise limits on the amount of marihuana a Qualifying Patient is permitted to have. Specifically, it states that a qualifying patient may possess 2.5 ounces of usable marihuana and 12 plants (unless the patient has designated a primary caregiver). What gets some patients into trouble is what is considered a plant. Early decisions on the matter stated anything with a leaf, a stem, and a root was considered a plant. However, anything after the plant has created “cotyledons,” or the first pair of leaves that sprout from a seed, is now considered a plant. This includes any clippings from a developed plant, even if those clippings have not yet grown roots.
It is important to limit yourself to these numbers. In a recent case, People of the State of Michigan v. King, the Michigan Court of Appeals ruled that by failing to comply with the growing requirements of the MMMA a card-carrying Qualifying Patient lost not only the right to file a motion to dismiss, but also the right to assert the affirmative defense to the jury.
4. Make sure your grow operation complies with the statute. The MMMA requires that any marihuana grown be kept in an “enclosed locked facility.” This is defined as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualify patient.” If you live with anyone else, just having locks on your house doors is not enough because your roommate or relative has access to your grow operation. Also, the courts have ruled that the facility must be enclosed on all sides, including the top. In one case where the patient was growing his marihuana outside in a fenced, locked kennel wrapped in plastic, the court said it was not good enough because someone could gain access through the open top of the kennel. While the language of the statute only requires that your 12 plants be kept in the enclosed locked facility, it would be wise to keep your drying or useable marihuana locked up as well. Remember, the police and courts are still working the kinks out of the system. Now is not the time to push the envelope. Again, if you fail to keep your marihuana plants properly locked up, it could cost you both the motion to dismiss and the affirmative defense.
5. Do not exchange or show your marihuana to others in a public place. The MMMA does not permit the sale of marihuana. In fact, selling marihuana to someone who is not allowed to use it for medical purposes will result in you losing your registry identification card and being convicted of a 2 year felony, which will also result in your driver’s license being revoked. Even if you are just comparing medications or discussing strains, remember, police are trained to see drug buys. It would be easy to mistake your innocent activity for criminal activity. Save yourself the trouble and have those discussions indoors, away from public view.
6. Do not use and drive. Even if you are a Qualifying Patient with a valid registry identification card, there are still a number of things you cannot do while under the influence of marihuana. You cannot do possess or use marihuana on school grounds, school busses, or in correctional facilities. You also cannot smoke marihuana on public transportation or in a public place. Most importantly, you cannot operate a motor vehicle, aircraft, or motorboat while under the influence of marihuana. If a police officer pulls you over and smells marihuana, the fact that you have a registry identification card will not protect you from the Operating while Intoxicated charges that may be filed.
Michigan voters have spoken in favor of allowing patients with debilitating medical conditions to use marihuana for medical purposes. However, the law is complicated and confusing, even for police and the courts. Protect yourself by being informed and complying with all the applicable regulations. Consider coordinating with a local compassion club, or the Michigan Medical Marijuana Association, which can help you learn what you need to know to stay out of the courtroom. If you still have questions, contact an attorney. He or she should be able to help you sort out the complexities of the statute and subsequent court decisions.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.