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Since being enacted by the public in 2008, medical marijuana has permeated almost all aspects of the Michigan justice system. It seems like every couple of months a new ruling is issued by the Court of Appeals or the Michigan Supreme Court regarding the permitted uses of medical marijuana in this state. However, despite the growing and voluminous case law developing in this area, the courts cannot keep pace with the medical marijuana issues that continue to emerge.
One of these issues is involves the rights of victims who are injured in an automobile accident where medical marijuana was being used by the driver of the at fault vehicle. Another issue which has been subject to intense litigation is the criminal rights of a medical marijuana patient who has been in an automobile accident after having legally used medical marijuana.
A few weeks back, Steven M. Gursten of Michigan Auto Law contacted us about teaming up and writing a series of Questions and Answers about Medical Marijuana and Driving in the State of Michigan. We saw this as a good opportunity to inform Michigan drivers of their rights and explain the laws in further detail. This is our follow-up to the blog post written by Steve Gursten, lead attorney from Michigan Auto Law.
To start, the medical marijuana act (MMA) affords qualifying and registered patients certain rights with regards to using medical marijuana. Internal possession of marijuana is protected by the MMA. Consequently, a patient cannot be prosecuted for having medical marijuana in their system as long as they are not violating the MMA in other ways. However, the MMA does not allow a person to operate a vehicle “under the influence” of marijuana. What does “under the influence” mean? Recently, the Michigan Supreme Court stated in overruling the Michigan Court of Appeals that “under the influence” does not mean that a patient simply had any amount of THC in their system. THC is measured by in the body by parts per billion or nanograms.
It remains illegal for a person who is not a medical marijuana patient to have “any amount” of marijuana in their system when they are driving, even if it is only 1 nanogram. On the other hand, a medical marijuana patient must actually be proven to be impaired from their use of marijuana, apart from how many nanograms are in their system. This means that a MMA cardholder will have rights similar to drunk drivers before the per se alcohol threshold of .08 BAC was adopted by the legislature. The mere presence of THC in the system of a card holder will not alone show that that person was violating the law, but rather a confluence of additional factors like the persons driving, speech, coordination, and or performance on field sobriety tests will hold more weight in determining whether they were driving “under the influence.” This decision by the Supreme Court of Michigan was a step forward for cardholders as THC can stay in ones system for a long period of time. Now, instead of fearing getting behind the wheel even after the effects of the THC have worn off many hours or days ago, a medical marijuana patient can drive a vehicle without worrying that residual THC in his or her system will subject him or her to criminal prosecution under the motor vehicle code.
On the other hand, this does not give medical marijuana patients a free pass. Criminal and civil liability for driving under the influence of marijuana remains a serious and growing problem. Many people are injured as a result of marijuana related driving. Notwithstanding criminal penalties that one can face for causing an accident “under the influence” of marijuana, civil liability in third party lawsuits for negligence remains a real problem.
While the amount nanograms in one’s blood alone does not definitively establish whether a person is driving a vehicle “under the influence” there have been studies which demonstrate that higher levels of THC correlate with an elevated level of intoxication. Simply having a medical marijuana card does not mean that if you get sued for causing injuries in an automobile accident, that all of sudden the amount of THC in blood is irrelevant. In a personal injury lawsuit or even a criminal case, the amount of THC in the blood of the driver is likely to be a highly relevant factor in considering whether one was under the influence or negligent. Moreover, negligence is the standard in a personal injury lawsuit, so demonstrating some level of impairment will be highly probative even if it does not meet the motor vehicles code’s definition of “driving under the influence.”
Of course MMA patients have some level of protection and some explanations for THC being present in their blood. There is likely to be explanations available such as the recurrent use of marijuana leaving residual amounts of THC in the system. Additionally, whenever intoxication is at issue a particular person’s tolerance will also be a large factor in determining whether a driver was negligent or driving under the influence. However, the amount of THC in a driver’s system will undoubtedly be a variable that courts and juries will look at in determining a medical marijuana patient’s level of intoxication when driving.
Simply because the MMA gives medical marijuana patients some lea way in avoiding the strict per se rules that make driving with any amount of marijuana in one’s system illegal under the motor vehicle code, does not remove the hazards that smoking and driving causes. Many more cases will be decided by Michigan’s higher courts giving us more directions and guidance in this area of law, but certainly caution must be taken by all motorists on the road due to the recent developments introduced by the MMA.
Last week, the Supreme Court heard a crucial case to the patients and caregivers in the State of Michigan. While the decision is still months away, this could potentially decide the fate of medical marijuana in Michigan forever. Many local laws or ordinances have been enacted over the past couple of years in a blatant attempt to circumvent the MMMA which was passed by over 60% of state residents back in 2008. Now both Michigan residents and the American Civil Liberties Union are starting to fight back in an attempt to secure and protect their rights.
Here is a little background information about the particular case which the Supreme Court will be making a decision on. John Ter Beek originally filed the lawsuit against the city of Wyoming. The city of Wyoming enacted a zoning ordinance. While zoning ordinances are created regularly, this one is a little bit more “unconventional”. This ordinance essentially bans the use of medical marijuana in any form within city limits.
When writing the law, the city made sure to include that this prohibits use “contrary to federal law, state law, or local ordinance”. By including the phrasing “federal law” they banned all use because it IS still illegal under federal law. John Ter Beek lived within Wyoming city limits and began to fear he might be penalized legally. John Ter Beek lost his original hearing and decided to appeal this decision. After appealing the original decision, a panel of judges decided that the City of Wyoming’s ordinance could no longer be enforced calling it “void and unenforceable.” Now the case will go all the way up the Supreme Court and the consequences of this ruling could impact all of Michigan’s registered users.
There has been an unfortunate amount of confusion ever since the MMMA passed in 2008. The law was poorly written and has created a tremendous amount of controversy and turmoil throughout the state. The Michigan Medical Marijuana Act clearly states that both patients and caregivers that are registered with the state “shall not be subject to arrest, prosecution, or penalty in any manner”. These city ordinances or local laws are a clear attempt to disregard the rights of cardholders in Michigan.
The American Civil Liberties Union is representing John Ter Beek in the case. The ACLU has also filed lawsuits in 3 other populated cities/counties in Michigan that have created similar ordinances to the one in Wyoming. These cities include Birmingham, Lyon, and Bloomfield Hills. These lawsuits are very similar to the one John Ter Beek filed and ask that any ordinance or zoning banning the use of medical marijuana be lifted against users complying with State law.
The Michigan Supreme Court recently made a ruling regarding the legality of medical marijuana patients and driving. Previous to this ruling, all patients were breaking the law simply by driving due to the lack of definition in the MMMA. Since there was no definition for “under the influence” stated in the Act passed in 2008, any trace of marijuana in the blood was enough to bring a criminal charge for an OUI.
The new ruling, which came out recently, states that medical marijuana patients are not breaking any laws by simply having any amount of THC in their system. Obviously, this is a big victory the medical marijuana community, but you can expect more changes to come in this area of the law soon. The ruling did not give any metric or measurement of THC which would be driving “under the influence”.
“This case could have been easily resolved if the (law) had provided a definition of ‘under the influence”. The supreme court justices noted that the law was insufficient, but this is old news to anyone keeping up to date with the law and the industry as a whole. They also advised lawmakers to set a legal limit much like that is in place for alcohol and personal breathalyzer tests. Easier said than done.
Michigan is not the first state to address this issue and some states have a set limit of 5 nanograms. This arbitrary limit would be equivalent to the .08 BAC level for alcohol. But a real problem occurs when setting a limit. THC behaves much differently from Alcohol in the fact that levels can build up with long term use. A high nano-gram reading doesn’t necessarily correlate with being “under the influence.” The current technology doesn’t address or account for this issue and there is no doubt this will cause problems resulting in a lot of innocent people being arrested.
For now…. if you are a medical marijuana patient in the State of Michigan, there is NO set nanogram level of THC which would result in being “under the influence”. While there is currently a roadside sobriety test that police officers utilize for drugged driving, less than 1% of the nation’s officers are fully trained with the method. This makes charging medical marijuana patients with drugged driving much more difficult. Prosecutors will have to prove that the actual active ingredient or the drug itself was in your system, not just simply having a THC level higher than zero. This will obviously have a large impact on the number of drivers arrested for drugged driving and you may be able overturn a previous conviction given the new ruling from the Supreme Court. Overall, this ruling is a positive one for medical marijuana users in Michigan.
A ruling was finally made by the Michigan State Supreme Court regarding patient to patient transfers of medical marijuana, and the 62% of the voters who passed the MMMA in 2008 aren’t going to be happy. The overall vote was 4-1 in favor of making these transfers illegal which also makes it illegal to sell through private establishments. This ruling essentially makes dispensaries and anything similar illegal under the State’s Michigan Medical Marijuana Act (MMMA) which was passed back in 2008. The only way to legally obtain your medical marijuana is to either grow it yourself as a registered cardholder or have it grown by a designated cardholder that is also licensed as a caregiver under state law. Patients cannot transfer medical marijuana between themselves. A large reason that dispensaries became a large target is that they were facilitating patient-patient transfers and this was not liked by Michigan lawmakers. There are approximately 125,000 cardholders in Michigan and only 20% also are licensed as a caregiver. Just based on these rough numbers alone, it’s easy to tell that this ruling will have a significant impact on the Michigan medical marijuana community. It’s clear that changes will be need to be made by some to conform to the new changes based on the interpretation of the 2008 MMMA Law by the Michigan Supreme Court.
I did some digging around to find out how the Judges voted on the decision and found this article by The Morning Sun and here’s the quote from Supreme Court Justice Michael F. Cavanagh, “Rather, I would hold that when a qualified patient transfers marijuana to another qualified patient, both individuals have the right to assert immunity,” Cavanagh said. “Furthermore, as a result of the majority’s erroneous interpretation of (part of the MMMA), the majority improperly concludes that any facilitation of the transfer of marijuana from patient to patient is unlawful and enjoinable as a nuisance.” Unfortunately, the other 4 justices didn’t see it this way at all. Their interpretation is that the MMMA doesn’t give protections to anybody except caregivers that are registered through the state program and their respective medical marijuana patients.
The original case involved a dispensary in Mt. Pleasant which was shut down or raided. More specifically, it involved a dispensary called the Compassionate Apothecary which was in Isabella County, MI. The dispensary itself facilitated patient to patient sales and they took a fee for arranging the transactions and transfers which was said to be near twenty percent. The case had been appealed all the way up the Supreme Court over the last few years.
Just when you thought the Michigan Marijuana Laws couldn’t get any worse or more confusing, lawmakers gave their approval on 4 different bills which will clearly have a large impact on current card holders as well as new applicants. The bills were aimed to increase regulations surrounding the law and to “clarify” some points which many have been unclear. These bills have been going through the legislation process for months and had input from parties on all sides.
The four bills which were approved include HB 4834, HB 4851, HB 4853, and HB 4856. If you are a cardholder or thinking about becoming a patient or caregiver, I recommend taking a few minutes and looking these bills over individually. There are some major legal impacts which you need to be aware of and it’s important to keep yourself informed. Here is an outline or summary of what the major two bills cover and how they might effect you. I plan on putting up another blog post about the other two bills in the next week or so.
The first Bill which I will discuss is HB 4834. Essentially this bill deals with the logistics of applying and reapplying for a medical marijuana card. The state of Michigan has found that their current process for reviewing applicants is too slow and as a result there is a major backlog of applications which is causing some major headaches. To resolve this issue, the state now will require a driver’s license or some form of identification provided by the state of Michigan. They are also changing the term limits of application. It used to be that you have to apply every year and they are now only requiring it once every two years to reduce the amount of paperwork/labor. The two most controversial points include allowing the state to sub-contract to private firms which will take the load off of processing medical marijuana cards. On top of this, this bill also allows the Dept. of Licensing and Regulatory affairs access to the marijuana registry. The instructions include giving out information to police in order to verify whether someone is a cardholder. Seems like the more people with access to this list the less private it really becomes, but that’s probably the goal anyways.
The other major bill (HB 4851) makes changes to the patient-doctor relationship by requiring a “bona-fide” relationship. This language is confusing in itself and once I again I recommend reading the bill closely as this topic requires another blog post in itself. This also makes changes to how medical marijuana should and has to be enclosed. I have no problem with the enclosure portion of the bill as long as the police and authorities stay consistent. It’s not that hard to make sure it’s locked and only authorized people have access. Now here’s the kicker. If you have been convicted of any type in the past decade or been convicted of a drug felony…..ever, you are no longer legally able to become a caregiver. So what happens the currently registered users who now fall under this new category? Unfortunately, you are not grandfathered in and you must stop providing for your patients regardless of the conditions of your patients and situation.
David M. Clark has been practicing law in the State of Michigan for over 30 years. The Clark Law Office has been helping protect the medical marijuana community since it’s inception. If you have been charged with a marijuana crime in Michigan, give our medical marijuana attorneys a call today for a free consultation by calling (517) 347-6900 today.
In the state of Michigan, the voters passed a medical marijuana law in 2008. In doing so, they joined one dozen other states that have legalized the use of marihuana for medical purposes. Section 333.26422(b) of the Michigan Medical Marihuana act states that the majority of arrests made for marihuana are under state rather than federal laws, and thus this law will protect seriously ill people from arrest. Section 333.26426 (h) sets specific rules for the confidentiality of all persons involved in applying for a medical marihuana identification card, including patients and physicians who provide the written evidence needed to obtain a permit. The remainder of the law and regulations pertain to definitions, rules and defenses regarding this law. This background information is essential to the understanding of the recent ruling made by a federal magistrate judge.
Judge Hugh Brenneman Jr., the federal magistrate judge in question, has decided that the state laws and federal laws have no connection. Because of this, it does not violate the state law for the persons involved in issuing the registration cards to release the confidential information to the DEA. Many people in Michigan thought that the privacy rights guaranteed by the law would be sufficient to protect their information from being released. This is not the case. The reason this is so important is because it sets precedent in all similar cases. What does this mean? It means that every registered patient in the county could have their private (medical and other) information released to the DEA, simply by the DEA issuing a subpoena.
This begs the question, how hard is it to come up with a single set of rules to clearly define what you can and cannot do under state and federal laws? The apparently desired result is confusion, so that they can do as they wish. This was clearly not the intent of the voting public of Michigan. Make whatever changes are necessary in the law, and give the voters what they approved. Right now, your “private medical marihuana records” are not confidential at all.
If you or a loved one is facing legal issues about the Michigan marihuana laws, contact David M. Clark. A Michigan trial attorney with many years of experience, he specializes in Michigan medical marihuana laws. Call The Clark Law Office for your free consultation at (517) 347-6900 today!
As of today, it is illegal for Michigan medical marijuana patients to drive a car if they have any amount of marijuana in their blood.
On the 17th of April, 2012, the Michigan Court ruled in the case of People vs. Koon. This case holds that Michigan medical marijuana card holders can be prosecuted for driving under the influence of marijuana. This new case goes against the rights of medical marijuana patients.
This court decision is based on an interpretation of the Michigan Medical Marijuana Act (MMMA) and the state’s zero tolerance policy.
The first part of the decision states that patients are only given protection from prosecution for the possession of marijuana. The MMMA also states that patients are not allowed to drive under the influence of marijuana, and this is combined with the zero tolerance law that states any amount of marijuana is an under the influence offense.
There are some problems with this new decision, and the major issue is that it is totally wrong. The zero tolerance law for controlled substances states that it is illegal to drive with any amount of controlled substances in your blood stream. The offense is granted regardless of the amount of controlled substances, and this does not mesh with the usual interpretation of an under the influence statute.
The Michigan Court states that under the influence is equivalent to any amount of marijuana, and in doing this they neglect a number of different aspects of the MMMA. First, they fail to account for the fact that any law that is not compatible with the MMMA will not apply. This means that zero tolerance does not apply because patients are protected by the MMMA. The courts also neglect the issue of the half-life of marijuana and just how long it stays in the blood stream. Trace amounts of THC may persist for days even though a person is not feeling the effects and is definitely not under the influence.
In spite of this, the new ruling will stand as law until it is overturned by the Supreme Court. This means that patients are subject to prosecution and imprisonment if they are driving with any THC in their blood. This is a step in the wrong direction for patients, and it can cause many otherwise law abiding citizens to become criminally liable for taking their medication. We are hoping that this case will be overturned and the courts apply the proper reasoning.
Matthew R. Clark and his Clark Law Office routinely handle marijuana and drug charges. If you have been charged and would like a free consultation, feel free to contact us at 517.347.6900!
In spite of the significant progress that medical marijuana advocates have made in states such as Michigan, the United States Justice Department has clearly stated its intention to enforce federal prohibitions against state authorized marijuana production and distribution networks. Though the medical marijuana community had taken solace from a 2009 Department of Justice memorandum, which suggested a more lenient approach toward medical marijuana cultivation and state sanctioned dispensaries, the Justice Department has notified U.S. attorneys of its intention to enforce existing federal marijuana laws. The apparent federal initiative has given pause to marijuana rights advocates. It is now abundantly clear that medical marijuana laws in States like Michigan will not be honored by the justice department, making individuals involved in the production or distribution of medical marijuana subject to criminal prosecution.
Representatives of the growing cannabis industry have reacted negatively to the federal government’s reinvigorated enforcement approach. A U.S. Department of Justice directive clearly stated that the production or distribution of marijuana will not be interpreted as a legitimate business, in keeping with the federal Controlled Substances Act and other relevant federal laws. The enhanced enforcement policy places in jeopardy, medicinal marijuana laws in 16 states and the District of Columbia. U.S. attorneys continue to possess the authority to prosecute violations of the Controlled Substances Act.
Drug enforcement authorities claim that the medicinal marijuana industry includes illegal commercial drug trafficking operations. Nevertheless, the conflict between federal drug enforcement policy and the various states, where medicinal marijuana laws have been approved by state legislatures or direct voter approval, raises questions concerning the legal right of cancer patients and other seriously ill individuals to utilize marijuana for the relief of pain and other illness related symptoms. It does appear that even smaller marijuana producers and distributors will not be protected from this federal crack-down on the medicinal marijuana industry.
With over 30 years of legal and trial experience, David M. Clark and the Clark Law Office are prepared to provide effective professional legal representation. Our trial attorneys possess significant experience representing clients who wish to exercise their legal rights under the provisions of Michigan medicinal marijuana laws. Call today for a free consultation at (517) 347-6900, regarding any legal issue you may be facing.
Massively populated with deer, birds, and other wild animals, the state of Michigan has become a popular area for hunters to hone their skills. Ironically, in 2008, the Michigan Medical Marihuana Act (MMMA) was enacted, allowing people to use marihuana for medicinal purposes only. However, under the laws governing the MMMA, people given the right to smoke marihuana are not permitted to purchase guns for hunting, target shooting or even for personal protection.
The Michigan State Appeals Court has ruled that those granted use of marihuana for medicinal purposes remain classified as “drug users” or “drug addicts”, barring them from purchasing a gun and ammunition, regardless of the permission given to them to use marihuana for medicine reasons. This is a big blow to the medical marihuana community since it treats those carrying an MMA card as criminals regardless if a criminal act was committed or not.
The Clark Law Offices specializes in Michigan Medical Marihuana Law. We know what your rights are according to the MMMA laws and we believe it is your right to purchase guns and ammunition for your own personal safety or for hunting and target shooting purposes. Located at 3970 Heritage Avenue, Okemos, Michigan 48864, Attorney David M. Clark knows the intricacies and complexities of the MMMA laws and can help you fight for your Second Amendment right to keep and to bear arms. Give us a call today at (517) 347-6900 so we can confidentially discuss your case. Let us fight for your right to be both an official Michigan Medical Marihuana Act member and fight for your right to bear arms.
According to a memo from the Michigan Attorney General, Bill Schuette, it would seem that the answer to the above question is yes. In an opinion that was released on November 10, 2011, the Attorney General offers an analysis that really means police offers would be breaking the law by returning medical marijuana to patients. He holds that this is against the Federal Controlled Substance Laws, and it is illegal for the police to give marijuana back to its rightful owners.
This memo means that Bill Schuette is saying that patients who comply with local laws and ordinances will not be able to get their medical marijuana back from the police. This is in direct opposition to the Michigan Medical Marijuana Act (MMMA). This act clearly states that medical marijuana is not to be seized or forfeited.
Michigan’s Attorney General is resting his case on the fact that he holds the Federal Controlled Substance Laws to trump the MMMA. It is true that the federal law preempts the state act, but this does not mean that police officers will break the law when they return medical marijuana to patients.
According to United States Code (USC) 21 885 d, police officers are immune from criminal or civil liability when they act in conformance with local controlled substance regulations. Accordingly, this statute makes it legal for police officers to return medical marijuana and distinctly states that they would be free to return the marijuana. In fact, these officers should never take the marijuana in the first place.
The Michigan Attorney General also fails to consider the impact of the 14th amendment to the United States Constitution. This particular amendment deals with due process, and it basically states that patients have a right to medical marijuana under the MMMA. Taking the marijuana that is protected by the MMMA is actually unconstitutional under this interpretation.
Finally, this issue came before the state courts in both California and Oregon. Both of these states have ruled on this problem, and they have used the above reasoning to return medical marijuana that was unlawfully seized. These cases are the City of Garden Grove vs. The Superior Court of Orange County and the State vs. Kama respectively.
While I believe that the Attorney General’s position on these issues is wrong, the problem has not been taken in front of the courts yet so the matter is actually up in the air. It seems that this is another attempt by the Attorney General to increase the battle against medical marijuana patients.
The Clark Law Office and Matthew R. Clark specialize in drug charges and the MMMA. Call Matt for a free consultation: 517.347.6900