This article chronicles the implementation of the Michigan Medical Marijuana Act, passed via referendum in the 2008 general election. As expected, once applied to our human tapestry, the MMA has been subjected to some already-classic judicial interpretations, with a strong promise of more to come.
The Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marijuana for medical purposes. The Act cited a series of findings related to the beneficial uses of marijuana in treating nausea, pain and other effects from a variety of debilitating medical conditions. The Act also notes that according to the FBI, 99% of all marijuana possession arrests nationwide are done pursuant to state, rather than federal law. It is important to note that possession of the drug remains illegal under federal law.
The MMA defines a “debilitating medical condition” as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea. A “primary caregiver” is defined as, “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marijuana and who has never been convicted of a felony involving illegal drugs.” A “qualifying patient” is “a person who has been diagnosed by a physician as having a debilitating medical condition.”
The basic mechanics of the Act provide that qualifying patients and primary care providers (marijuana growers) must possess a “registry identification card”, issued by the Department of Community Health. Tens of thousands of applications have been processed; many thousands remain pending with more filed every week; the demand for certification, for marijuana, is seemingly insatiable here in Michigan.
The high demand is understandable. Cardholders are not subject to arrest or prosecution for marijuana possession/distribution provided the patient keeps less than 2.5 ounces of smokeable pot. Care providers are allowed to maintain up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the plant limitation.
Physicians also have immunity from prosecution relative to their certification of the patient’s need for the drug, so long as they conduct an assessment of the patient’s medical history. A legitimate physician-patient relationship is required.
Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have been able to recommend a patient’s use of marijuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors can also make notes regarding their recommendations in the patient’s chart and can testify on behalf of a patient’s medical use of marijuana in a court of law. The Supreme Court’s Conant decision paved the way for passage of the MMA.
Primary care providers may receive compensation for their marijuana. Selling marijuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.
Persons merely present during the use of marijuana for medical purposes likewise are not subject to arrest.
Sound too good to be true? When marijuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is subject to a 2-year felony. Also, driving while under the influence of marijuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains prohibited. And yes, it remains illegal to smoke in a jail or a penitentiary, regardless of your medical condition.
The Act set a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential. The delay in the promulgation of these regulations gave way to confusion among law enforcement, the public and some judges as to what is legal and what is illegal.
For example, the 2009 Redden case from Madison Heights involved a couple arrested during a drug-raid. The couple had applied for certification cards prior to their arrest and received the cards a month after their arrest. In dismissing the case brought against the two defendants, 43rd District Judge Robert Turner characterized the MMA as, “the worst piece of legislation I’ve seen in my life”, according to the Detroit News. Judge Turner’s dismissal was appealed by the Oakland County Prosecutor where it was affirmed in the Oakland County Circuit Court.
Earlier this year, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson’s reinstatement of the criminal charges against Redden and Clark. Now, the accused Madison Heights couple will either have to plead or go to trial.
At the time of the raid on the couple’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants. Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA. Their cards, however, had not been issued at the time of the raid.
At the couple’s preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from “medicating” with marijuana while their applications to the State of Michigan’s Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud.
Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana. The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces.
Judge Turner made the following ruling:
For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that’s the only requirement that the statute has. You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michgan.
So, based on that, I find section 8 does apply. And I believe I’m obligated to dismiss this matter based on section 8 of the statute.
Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court. In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case.
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Judge Anderson also questioned whether the couple could avail themselves of the MMA’s affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot.
At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards. To date, almost 30,000 certifications have been issued.
In their September 2010 opinion affirming Judge Martha Anderson, the Court of Appeals held that the MMA’s affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated. The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions.
The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was “reasonable” under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act.
The most interesting thing about the Court of Appeals’ Redden decision is the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to “elaborate” on some of the general discussion of the Act set forth in the briefs and at oral argument.
Elaborate he did. Judge O’Connell’s 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have “no acceptable medical uses.”
In what will undoubtedly become a classic line from his opinion, Judge O’Connell writes, “I will attempt to cut through the haze surrounding this legislation.” The judge is skeptical that folks are really using pot to “medicate” and suspects that they are using the plant for recreational purposes.