Arrested Marijuana Card MailIn Michigan, there are various reasons why a person might not have their MMA card on them.  The most common reason that a person doesn’t have their card on them is because they haven’t received it in the mail yet.  Because of the backlog of applications for cards, the State of Michigan can not send cards promptly to applicants that will likely qualify.  This creates a substantial amount of time were you are exposed because of poor management of applications by the State of Michigan.  Because of this hitch, the MMA has a provision that states that a person who does not yet have a card but has applied more than 20 days ago is presumed to qualify.  MCL 333.26429(b) provides that:

“If the department fails to issue a valid registry identification card in response to a valid application or renewal submitted pursuant to this act within 20 days of its submission, the registry identification card shall be deemed granted, and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.”

The Police Should Not Be Able To Arrest You For Not Having Your Card

Another reason why a person might not have their card is for the simple reason that they just forgot to carry it with him/her.  They left at home, in their car, or some other place.  It would seem obvious that if you have a medical marijuana card somewhere, even if it is not on you, that the police should not be able to arrest you if they found legal amounts of medical marijuana on your person.   In fact the act [MCL 333.26424(a) states:

a qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marijuana that does not exceed 2.5 ounces of usable marijuana, and, if the qualifying patient has not specified that a primary care giver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marijuana plants kept in an enclosed locked facility.  Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

However, in 2011 The Michigan Court of Appeals, in The State of Michigan v. Nicholson ruled that if you do not possess your card at the time of arrest then you can be arrested. It also ruled that if you do not possess your card at the time of prosecution then you can be prosecuted.  The Court of Appeals did state that if you have not yet received your card but have paperwork showing that you applied over 20 days ago that you can avoid arrest and prosecution if you have that paperwork on you.  Again, if you fail to have this paperwork on you then you can be arrested and prosecuted.

Michigan Marijuana Law Now Creates A Double Standard

Unfortunately, this is the law now in Michigan and it creates a double standard.  When you are charged with possession of marijuana even if you did not have the marijuana on you, but it was under your dominion or control, then you are still said to have “constructive possession” of the marijuana.  If it is at your house when you are not there, it is still yours.  If it is in your car when you are not in the car, it is still yours. Why? Because you live and are presumed to control what you own.  This includes your home, your car, your locker, your backpack, or your room.  However, when it comes to courts determining when you are immune from arrest and prosecution, then possession has to be direct and unequivocal. Constructive possession only applies when you lose never when you win.  This is a double standard that has further eroded patient rights.

Contact Us Today For a Free Consultation

Because the courts, the legislature, and the police continue to chip away at Medical Marijuana Card holders’ rights, it’s imperative that you speak to attorney when you have been arrested or charged with a marijuana crime.  At the Clark Law Office we know your rights, and the Law.  We Can Help!  Call us today at 517-347-6900.