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The Michigan Medical Marihuana Act
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The federal government is on track to spend about 10 billion dollars per year on anti-drug efforts, with roughly 51 percent of drug arrests resulting from marijuana-related crimes. Drug offenders in prison soared from 41,000 in 1980 to 494,000 in 2003, as a result of the "War on Drugs." According to the DOJ, 99 out of every 100 marijuana arrests in the United States are made under state law. Michigan joined twelve other states which made marijuana legal for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington (New Jersey just became the 14th state). NORML reports that 14 other states have medical marihuana legislation pending or voter initiatives in progress. California voters will have chance to decide whether or not to decriminalize marijuana this November.
In this modern information Age, it has become more difficult for the government and its citizenry to deny the indisputable medicinal properties. As more medical patients use marijuana and talk about its benefits, public perception has undergone a dramatic shift. During the counter culture and hippie movement of the early 1970's, when use of marijuana reached an all time high, only 30 percent of Americans thought it should be legalized. Recent polls show that the number of Americans favoring legalization has increased to over 50 percent. A poll in January 2010 by ABC News revealed that 81 percent of American's believe marijuana should be legalized for medical purposes. In 2009 the American Medical Association reversed its 72-year opposition and adopted a report that both affirmed the medical benefit of marihuana and called for medical study, as some studies have shown what many medical users had known for a long time: marijuana can reduces pain, helps appetite, and relieves pain and muscle spasms.
There has been a tremendous amount of confusion and questions about the Michigan Medical Marihuana Act passed by 63% of Michigan's voters in November 2008. This is due, in large part, to the fact that when the law became effective on December 4, 2008, there were no application forms nor procedures to implement the new law. In addition, marijuana had been illegal for so many years (1937 - 2008), is still illegal under federal and most state laws, and there has been little guidance from either the law itself or the state. Those who are growing and using medical marijuana are truly pioneers, blazing a path on the "Oregon trail."
Not surprisingly, law enforcement and prosecutor's offices are not embracing the new law with open arms. In most areas, any minor violation results in charging the patient or grower with felony marijuana charges. Unfortunately, our office has witnessed very sick patients, in their late 50's, without any criminal history, be charged with felony manufacture, possession, and with maintaining a drug house. Their medicine is taken away and they are arrested and booked for the first time in their lives. The lack of guidance and information extends to the law enforcement and legal community as well.
Nor can you expect judges or juries to be sympathetic. They, like all of us, were raised when marijuana was demonized, those who smoked it were losers, deadbeats, and 'good for nothings' that would never amount to anything. It will take years before society begins to accept the fact that there is undeniable proof that there are legitimate medicinal benefit from medical marihuana.
The Michigan Medical Marijuana Act provides two different protections. Most police officers, lawyers, and judges do not have good grasp on the fact that the Act allows for two distinct and separate protection from criminal prosecution, either:
(1) Section 4 of the Act: formal application for a medical marijuana identification card;
OR
(2) Section 8 of the Act: an Affirmative Defense to criminal marihuana charges. The affirmative defense applies, regardless of whether or not you have an ID card. For more see our Medical Marijuana Affirmative Defense page.
Beginning April 2009, doctors started receiving applications from patients who had chronic pain or a debilitating disease or medical condition. In order to obtain a medical marijuana card, a doctor must state in writing that the patient's condition and resulting pain that would likely be reduced or relieved by using marijuana. Some medical conditions that are automatically approved include: HIV/AIDS, cancer, glaucoma, hepatitis C, sclerosis, Crohn's disease, Alzheimer's, wasting syndrome, and other serious conditions that cause chronic pain, severe nausea, persistent muscle spasms, and the like.
Once an application is received, the state health department (MDOH) has 15 days to grant or deny the application. If the state fails to respond to a properly completed application within 20 days of submission, the marijuana ID card is deemed approved/granted, and a copy of the submitted application (or renewal) is to be treated as a valid marijuana ID card. If approved, the state must send an identification card within 5 days. To date, none of the medical marijuana ID cards have pictures. The state expects that 50,000 patients will be approved for the cards which must be renewed annually.
Once patients receive the medical authorization cards from the state (or 20 days pass from the date of mailing), they will be allowed to grow up to 12 plants for their personal use and can possess up to 2.5 ounces of usable marijuana. If the person is physically unable to grow their own medical marijuana, they can designate a 'caregiver' to grow the marijuana for them. The caregiver cannot have a conviction for an illegal drug felony, and they must be registered for each patient. Unlike California, there will not be marijuana dispensaries. Patient and caregiver's names will be on a confidential list available to law enforcement upon specific request.
The Act does not require that doctors participate. Most medical doctors are unlikely to embrace this new law, as they are must have a federal Drug Enforcement Agency (DEA) license to write prescriptions for controlled substances such as narcotic pain killers, sleeping pills, etcetera. Since marijuana remains illegal under federal law, most physicians have been reluctant to 'stick their necks out' and sign their name to something that could endanger their ability to write Rx prescriptions.
An application must have a doctor's signature, and since most doctors are unwilling to sign the application, marijuana clinics have sprung up all over the state to assist applicants fill out paperwork and locate doctors who are willing to sign. There are medical marijuana clinics in the greater Detroit/Flint area, one in Southwest Michigan (Allegan County) called 'Real Health Alternatives,' and a brand new full-time clinic that opened in February (2010) in Kalamazoo called: "Michigan Holistic Health."
The State has a website with instructions for Applying for Medical Marihuana Registry Application Card. There are brief Instructions and an Application Form to be taken to your doctor. Cost is $100 to apply for the Medical Marijuana Card. Only an M.D. or a D.O. can sign a medical marijuana recommendation. For more information and to find answers to Frequently Asked Questions you can go to the state website State of Michigan Medical Marihuana Homepage. There are also Administrative Rules on the Website for your reading enjoyment.
For those who grew up in the 1960's and 1970's, the Michigan Medical Marihuana Act does not give you an automatic ticket to "light up and be happy" and relive glory days of the 1960's (hopefully someone smiled at my attempt at humor. On the other hand, Michigan's law is much more liberal than all but one other state. Only Nevada is more expansive and allows a patient to possess 18 plants, plus 6 mature plants, and 24 ounces of usable weed (about a full pillowcase). Unlike California, Oregon, and Washington, Michigan will honor the marijuana ID cards from other states that allow medicinal marihuana. For a quick side by side comparison of the 14 medical marihuana states, see our Medical Marijuana States Comparison page.
Since Michigan mandates some form of indoor growing, the yield will be less than outdoor plants. Nonetheless, various scientific studies show that the average yield of an indoor pot plant can be about 1.2 ounces per plant; since indoor plants will bloom three to five times before dying, the annual yield of a 12 plant indoor marihuana grow site could be between 44 and 72 ounces.
Only California has marijuana dispensaries where an approved medical patient can 'legally' buy it. In Michigan and the other medical marijuana states, you are on your own as to where to get seeds, plants, or marijuana. So once you receive your Michigan medical card, in theory you are state-approved to grow and smoke marijuana, however, it is entirely up to you to figure out how.
Apparently the marijuana states do not wish to be seen as encouraging people to break federal law. California was bold with its law allowing marijuana dispensaries. But then again, California has the eighth largest economy in the world and thus tremendous financial clout. Patients and caregivers should be aware that they cannot legally transport seeds or marijuana over state lines, in airplanes, in boats, or in trains, or by mail because they will violate federal anti-drug laws. The federal government is not required to abide by nor recognize state medical marijuana laws (but see discussion below).
Michigan does not have any formal agreements with other states. However, the Medical Marijuana Act provides that a medical marijuana card properly issued by another state to a qualified patient, has the same effect as a Michigan ID card. Generally, a 'visitor' for state law purposes is someone who has been in Michigan less than 30 days. This part of the Act is very unusual as most states do not recognize other states' ID cards.
At least three state circuit courts have ruled that the Michigan Medical Marihuana Act should be applied retroactively. What this means is that defendants accused of Possession of Marijuana or Use of Marijuana are allowed to raise the Medical Marihuana Act as a complete defense, even though they did not yet have medical marijuana ID cards. Not surprisingly one of the cases is being appealed by the state to the Michigan Court of Appeals. The third case (that we are aware of) was decided April 8th and it is unknown if it will be appealed. As more information is received, we will do our best to keep you updated.
The successful cases thus far involved situations where the defendant has a serious medical condition and there is no argument that he/she will qualify for the ID card and their case was pending when the law went into effect December 4, 2008. None of these cases involved sale or delivery of marijuana. However, there have also been trial courts that have refused to allow retroactive application of the Act. This issue will ultimately be decided by the higher courts.
The new Medical Marihuana Act creates some extremely interesting Catch-22 situations. Someone who has been issued a marijuana card can legally purchase marijuana on the street, but the person selling it to them can be prosecuted. Similarly, patients or their caregivers can grow medical marijuana, but there is no place to legally purchase the seeds or the plants. In addition, nothing in the Act protects a patient from being fired from their job for using marijuana. The laws allows a caregiver to posses 2 1/2 ounces of usable marijuana and the patient an additional 2 1/2 ounces for a total of 5 ounces.
A patient or caregiver is required to keep the medical marijuana in a "secure locked facility," which would suggest that the backyard garden is not the place for this activity (vain attempt at humor again). Other medical marijuana states allow plants to be grown outside, which greatly increases the yield of harvestable pot. If you have marijuana plants growing in your living room window for natural sunlight, is this not the ultimate invite to a would-be-thief to break in and steal them or have your house raided by the police when a nosy neighbor reports it? There is also the troublesome issue of purchasing hydroponic grow lights and other indoor growing equipment which is expensive and can make you a potential target of drug enforcement authorities who are apparently monitoring the Internet and credit card purchase of grow light bulbs and hydroponic growing equipment.
It is rather surprising that Michigan does not limit size or distinguish between seedlings and mature, producing plants. Other marijuana states allow a patient to have a total of 6 plants, with 3 producing pot. According to unnamed sources, a good rule of thumb would be to have a combination of 4 seedlings, 4 medium sized, and 4 mature-producing plants so as to not go over the maximum.
With street marijuana costing between $200 - $400 per ounce, there is little doubt that most patients will likely choose to grow their own. A caregiver can grow 12 marijuana plants per patient for up to five patients. However, the law does not set any parameters as to how much the caregiver can charge or be "reimbursed" for their services. This raises a very interesting question about how much a caregiver can legally charge a patient, and how does the caregiver report the income on his federal tax return? One assumes that the caregiver cannot keep part of the harvest as 'payment'.
Eligible juveniles, under the age of 18 can qualify to receive and use medical marijuana. The risks must be explained to them by their parent or guardian and two doctors must give written certification. Their parent or guardian must also sign the application. Although there are no studies we are aware of, we have been told that marijuana helps calm and focus children with Attention Deficit Disorder (ADD) children and thus alleviate the need for Ritalin.
The Michigan Medical Marijuana Act prohibits smoking marijuana while driving a car or operating any type of motorized equipment. The Act is silent as to non-cardholder who legally smokes and then drives at a later time.
In a stunning decision, People v. Derror (2006), the Michigan Supreme Court upheld a 'drugged driving' conviction where the driver admitted to smoking one marijuana cigarette 4 hours earlier and in a companion case, 1/2 hour before driving. The Derror decision is troubling, because anyone who hurts or kills someone in a car accident can be found criminally negligent if a blood test shows "any amount" of marijuana (THC) or a Schedule I drug in their body, including THC which is a derivative of marihuana and detectable amounts can stay in your body as long as 30 days.
"the prosecution need only prove that Derror’s driving, not her intoxication, was the proximate cause of the accident....it simply requires that a person have "any amount" of a schedule 1 controlled substance in his or her body while driving."
This is strict liability: your body has it - you are guilty; you are treated just as if you were stone cold drunk and face felony charges, including a possible lengthy prison sentence (Ms. Derror went to prison for 5 years). The state does not have to show that the drugs affected your driving in any way or helped cause the accident. This case only applies to marijuana.
July 2010 Update: The Michigan Supreme Court just threw out the Derror opinion and its strict liability standard. We will update this page shortly.
For all other drugs, the state has to show that the drug "substantially affected" your ability to operate a car, which includes, to the shock and consternation of many an unaware driver, prescription drugs.
The Act seems to offer protection for registered medical marijuana card holders. So long as you have an ID card, whether as a primary caregiver or qualifying patient (Section 4) the strict liability standard does not apply. The state must show that the marijuana 'substantially affected' your ability to drive. Again, these are uncharted waters, and these are educated guesses.
So, if you are not a medical marijuana ID cardholder and you have marijuana (THC) in your body, which can linger for up to 30 days, you can be arrested and charged with 'driving under the influence of drugs' (OWID, DUID) which has the exact same penalties as drunk driving (OWI) including suspension, 6 points on your license, a criminal record, the $2,000 "bad driver" tax, etcetera.
Suffice it to say that it is probably wise to not mention that you have a medical marihuana ID card during a routine traffic stop...
For those who are on supervised release such as parole or probation, the sentencing court can overrule the Marihuana Act and not allow a patient to use or possess marijuana -- even if they have a Medical Marijuana ID Card. When you are on probation or parole, you are on what is called 'conditional release,' meaning that your release is conditioned on your obeying all probationary terms and rules set by the court. If you do not follow them, your conditional release is revoked and you are put back in jail or prison.
While on probation or parole, the sentencing court legally controls many aspects of your life such as: traveling, drinking alcohol, requiring that you come in to appointments with the probation office, etcetera. Do NOT make the mistake of just assuming that because you have a Marijuana Medical ID Card that you can go on smoking weed. You must understand that all of us (judges included) grew up during a time when marijuana was demonized, strictly illegal, and it had a tremendous negative stigma attached to it. It will be a long, long time before public perception of it changes and it is accepted as a medicine. Many people still view medical marijuana as a smokescreen or sham, that the new laws are nothing more than an excuse to 'get high' without fear of prosecution.
So absent permission, smoking pot while on probation or parole will automatically lead to a probation violation for 'using illegal drugs or substances." Inotherwords, just like when you were a kid, you must first ask and receive permission from the judge in order to continue using marijuana during probation. You can argue that you have a medical condition that requires you to use it. Be prepared to bring in your medical documents and proof of your condition. We have heard of a few cases where judges have permitted usage, but this seems to the exception and not the norm. One strict judge allowed the person to use but took away his driver's license.
July 2010 Update: The number of courts and judges that are allowing probationers to use medical marijuana while on probation has steadily grown. We have heard of numerous cases in the last few six months where medical marijuana by probationers.
From what we have seen, typically a court requires that the probationer produce medical records and prescriptions that demonstrate that probationer truly suffers from chronic pain, muscle spasms, or a similar serious medical condition. The testimony of the probationer's doctor has not been required, just production of the medical documents and drug scripts.
There is at least some relief from the dichotomy of laws that allow medical marijuana at the state level and strict federal laws that prohibit it. On March 18, 2009, the United States Attorney General Eric Holder held a press conference and said that the new Department of Justice (DOJ) policy would be to focus on those who violate both federal and state law.
On October 19, 2009, the U.S. Department of Justice released a three page memorandum which directs federal prosecutors and federal agencies (DEA, FBI) to shift their attention away from medical marijuana to criminal cases that involve violence, firearms, selling pot to minors, money laundering, 1000 foot drug free zone, and other cartel or gang related crimes. Read the full letter: Marijuana Memorandum.
This latest statement would seem to indicate that the federal government will stop targeting the medical marijuana community that legally grow and possess marijuana under state law. Whether the federal government will hold true to its pledge remains to be seen. With the daily death of common sense and the government's need to generate new sources of revenue, what will be done is anybody's guess.
Federal laws are much harsher on marijuana crimes than most state laws and often have mandatory minimum sentences. Read more at our Michigan Marijuana Crimes Page.
For the technically curious, click to read the full text of the Michigan Medical Marihuana Act.
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Michigan Marijuana Lawyer and Attorney Bruce Alan Block is a Grand Rapids, Michigan marijuana defense lawyer who defends those charged with marijuana crimes. Attorney Block has been defending medical marijuana patients and marijuana caregivers charged with marijuana crime such as possession and manufacture of marijuana, and maintaining a drug house. Attorney Block can help you present and properly argue medical marijuana defenses in court.
If you did not have a medical reason to possess or use marijuana, Attorney Block can represent you in criminal cases such as possession of marijuana, manufacture, delivery, possession with intent to deliver marijuana, and similar offenses. Put his years of experience to work for you. Call (616) 458-8585.
Disclaimer
It is our hope that everyone will strictly adhere to the Michigan Medical Marihuana Act's requirements. Please understand that the purpose of this webpage is strictly informational; nothing on this website or this webpage are intended to suggest that you violate any state or federal law. Remember, marijuana remains strictly illegal under federal law and the penalties are severe. You are advised to seek your own personalized legal advice
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