Thursday, November 17, 2011

Recent Court of Appeals Decision Follows Judicial Trend in Michigan Medical Marihuana Law

December 4, 2011, will mark the three-year anniversary of the enactment of the Michigan Medical Marihuana Act (MMMA). It’s no secret that, over its three-year lifespan, county prosecutors and police agencies have aggressively pursued marihuana manufacturers seeking to shield themselves from prosecution within provisions of the MMMA. It is also no secret that, in many instances, Michigan courts have sanctioned prosecutorial efforts and tightened their interpretations of a law that – lest we forget – was approved by 63% of Michigan voters in 2008. It is no surprise ergo that the most recent Court of Appeals decision in the string of MMMA cases to moving up the appellate ladder has come down in favor of the state.

In People v Blysma, decided on September 28, 2011, the Michigan Court of Appeals held that a registered primary “caregiver” – the title given to a licensed marihuana grower under the Michigan Medical Marihuana Act – can only grow plants for those qualifying patients formally registered to the caregiver through the Michigan Department of Community Health. Blysma was a registered caregiver in Grand Rapids, Michigan and, at the time of his arrest, was leasing a near-downtown apartment unit for the sole purpose of marihuana growing. When police raided the unit, they discovered, among other items, 88 marihuana plants in three growth booths. Blysma was registered as the primary caregiver for two registered qualify patients. The maximum number of plants allowed per patient under MMMA, however, is 12; therefore 64 of the 88 plants fell outside the protections of the Act.

Blysma was charged with manufacturing marihuana under MCL 333.7401(2)(d)(iii) and filed a motion to dismiss on grounds that he was sharing the unit with other registered patients who were growing the remaining 64 plants for their own use, keeping him at the threshold permissible under MMMA. The Court was not persuaded, however, rejecting Blysma’s argument because the MMMA is actually silent as to whether registered patients and registered caregivers may utilize the same enclosed, locked facility to grow marihuana. Referring to last year’s headline MMMA case, People v. Redden, the Court held that “because the MMMA did not repeal any drug laws, any possession of marihuana that does not fall within the ‘narrowly tailored protections’ of the MMMA remains illegal under the PHC [Public Health Code].” The Court also rejected Blysma’s affirmative defense claim of possession for medical purpose allowed under §8 of the MMMA because he was not in compliance with the 12-per-registered-patient rule under §4(b) of the Act.

The trends of aggressive pursuit of marihuana growers by prosecutors and police agencies and extremely narrow judicial interpretation by courts are impacting counties all across the state, including Berrien, Allegan, and Cass Counties. If you are seeking help with compliance with MMMA or are facing criminal charges for possession and/or distribution of marihuana, look no further than Attorney Peter J. Johnson. Contact the Law Office of Peter J. Johnson today at (269) 982-1100 or by email at peterj@attorneypeterjohnson.com or visit his website at http://www.AttorneyPeterJohnson.com.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged 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.