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  • Michael Komorn

    Making A Federal Case Out Of Marijuana

    By Michael Komorn

    Our client, a medical marijuana patient registered with the State of Michigan, was out for a boat ride and some fishing on his friend’s boat. What started out as a glorious day with intentions of sun and fishing on the Detroit river later turned into federal charges of possession of marijuana (21 USC 844, 21 USC 844a) when a Border Patrol agent pulled up to them and wanted to search their vessel.   Related: Michigan law regarding marijuana manufacture, delivery, and possession   The federal border patrol agent required that the two passengers, my client and his friend, open all the containers in the immediate area, to which they complied.   After the agent found no contraband, he demanded that the occupants of the boat hand over the marijuana because, according to the agent, it smelled like marijuana on the boat. Additionally, the agent said that if someone did not give him the marihuana, he was going to call the K9 unit.   What does the driver of a car or boat say in response to a law enforcement officer demanding that the occupants of the vehicle hand over the marijuana, or else?   For a vehicle, we know that the traffic stop can't or shouldn't take last for any longer that it takes to execute the traffic stop, identify and inform the driver of the violation, and issue a ticket, if appropriate. A traffic stop is not an opportunity to gather evidence of probable cause of the vehicle to search. That basic threat, calling the dogs, would be unconstitutional. That is to say, the delay in calling the dogs to get probable cause would be a delay beyond the scope of the lawful police interaction. The delay to call the dogs is a delay for the purpose of getting probable cause to search the vehicle.   Most times this decision on how to respond should be determined on a case-by-case factual basis. In other words, depending upon what is within the vehicle, the driver may or may not comply with the request of the officer. The rule of thumb, however, is to never consent to a search, ever. Equally important is the rule that you should never talk to the police or answer questions. Specifically, in these traffic encounters, or even vessel encounters, the investigated driver is not under arrest. The encounter is an interaction called an investigation, and anything that is said during this encounter will be used against you.   Ultimately, our client handed over the marijuana cigarettes and his patient card. As my client was reminded by the Border Patrol Agent, there is no medical marihuana on federal jurisdiction. Or said another way, it was the intent of this agent to make a federal case out of it.   After being retained by our client, and after a few pretrial conferences and conferences with the Assistant United States Attorney, we learned that it was also the intent of the United States Government to make a federal case of it.   Federal jurisdiction, as mentioned above, is a very different venue to litigate a marihuana case, even if it’s just for a joint or two. The liabilities for punishment are much greater, and in certain situations get worse, the more the accused litigates the case. That is to say, any benefits of resolving the case with a plea bargain are minimized should you force the government to litigate the case.   It is under these circumstances that we needed to make our decisions on how to proceed. As we got closer to the day of trial, the Government offered a number of different plea offers and options to resolve the case. Unfortunately, none of them contemplated the medical use of marihuana while being supervised on probation. Similar to many of the State Courts throughout Michigan, the likelihood of any probation supervision of any kind would preclude the medical use of marihuana.   Not directly pertinent to this case either factually or due to our federal court venue, the only Michigan case law that addresses the issue is a recent case in the Court of Appeals, People v Magyari, the defendant argued that, pursuant to the MMMA, the court could not prohibit his medical marijuana use during probation because he possessed a patient card, but the court’s opinion characterized the defendant’s use of marijuana as non-medical, and did not apply their reasons for upholding the lower court decision the appeal to all cardholders.   A probation condition disallowing his medical use of marijuana was not acceptable to my client, and besides, who would want to plead guilty to something that the state government has authorized you to possess, let alone be on probation for the same behavior? So as often is the case, the choices that presented themselves compelled us to reject the offers to plead guilty and instead litigate the case.   Our response to the offer to plead guilty was to file a “Motion to Dismiss Based Upon Justice Spending Funds to Prevent Implementation of Michigan Marijuana Laws.”   I think it is more than ironic that as we put together the motion challenging the federal government’s authority and jurisdiction to prosecute the matter, the issue of States’ Rights was in the forefront in a national debate.   As outlined in the motion, the legal authority prohibiting the jurisdiction of the government in our matter was vitiated by the Cole memorandum – both of them. Additionally, the Rhorabacher-Farr amendment was more than clear in its intent to preclude federal agents employed by the DOJ, including the DEA, from investigating or prosecuting medical marihuana patients that are in compliance with state law. If there was ever a case with the perfect facts to prevail upon it would be this case, and the mere two marijuana cigarettes. In contrast, the circumstances of the case cited, US v McIntosh, dealt with dispensaries and commercial marihuana sales. Our case was as authentic patient activity as one could find.   After filing the motion to dismiss, and appearing for the motion hearing, we learned that the Government had decided to dismiss the case. The AUSA indicated to me that he had "no desire to go to the mat with me on this case" and he was "not going to make bad case law with this case." Or said another way, he knew that he was going to lose, and instead of dealing with that result which would be precedent and impact the entire Sixth Circuit Trial Court, he thought it best to dismiss the case, and let us go on our way.   The moral of this story is that when they make a federal case out of it, you should do the same.
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  • Michael Komorn

    Victory against unconstitutional search and seizures.

    By Michael Komorn

    Komorn Law PLLC is proud to report another complete dismissal of all charges for our client. These past few months we have attained a high rate of dismissals of our client’s cases.   In this case our client was charged with allegations of felonious marihuana conduct; the case involved the definition of a medical marijuana plant in the law. More specifically, whether or not the plant was producing food from photosynthesis and was “living”.  Of course, the prosecutor wanted to fight about the definition of “usable marihuana” too. With a splash of Manual and Mansour mixed into the fray.    Much to my surprise the Court was very familiar with the conflicts of law that currently exist within the MMMA and the court, and the issues that were created by the Mansour opinion. The court was prepared to grant a stay in the proceedings until that mess of an opinion gets worked out.   Today the Court heard arguments from the parties regarding the warrantless search of my clients home and whether the government could constitutionally validate the warrantless search. In Michigan, we have found that the courts go to great lengths to destroy the 4th amendment protections, going so far as to have a “good faith” exemption to unconstitutional search warrants.     As is often the case in warrantless searches regarding drug task forces investigating marijuana tips this case dealt with a “knock and talk". The knock and talk is a tool used by law enforcement agencies which allows them to traverse on to a citizen’s property, to question and even investigate a person or citizen. The knock and talk however is not absolute and there are specific limitations. The best way to describe is that the police would be allowed to come into a person's property in the same manner or method that a Girl Scout would or some other person soliciting something. Knock and talks are generally legal assuming that the police limit their interactions to the areas of the property that a citizen would not have an expectation of privacy.   Examples of this limited to walking up the driveway to the front door. Nothing more nothing less.   There is some significant case law recent years in Michigan that lays out specific details of some of those limitations and also when an officers’ knock and talk goes too far. People v Frederick and Van Doorne is a case involving Kent County Sheriff's officers that baked marijuana butter. The case went to the Michigan Supreme Court, which describes those limitations and the proper analysis for when and how officers can conduct knocks and talks.   The court did not take issue with the police detectives/investigators in this case, ignoring the fact that they were not in police uniform when they did their knock and talk. The court ruled that it didn’t matter if the police were undercover, because that fact did not violate the knock and talk rules. Even though I disagreed with the court in this tiny issue, this was not the ultimate legal issue that was dispositive in this case. The legal issue that was dispositive in this case was that once the police officers, who were conducting a lawful knock and talk, and who were lawfully on the porch of my client's house, and were lawfully ringing the doorbell to interact with my client, with the intent of trying to establish probable cause to search possibly get a search warrant, it is what happened in that situation that was the ultimate dispositive issue to which the court ruled in our favor.   As we have been finding more and more, police agencies in Michigan have an additional tool to trick patients and caregivers from the immunities from arrest, prosecution, and penalty of any kind. Police make offers to do a “compliance check”. Police will ask very politely if the homeowner will show them around their medical marijuana garden to ensure compliance with the MMMA. This was the ultimate issue in this case.   As I mentioned this case involving search and seizure of evidence without a search warrant. The U.S. Constitution and the Michigan Constitution expressly prohibits the searching and seizures without a warrant. That in fact warrantless searches and seizures are per se invalid. The government must make an allegation to justify the warrantless search in order for the search warrant to be constitutionally valid.   In this particular case, the government's theory of why the search and seizure was constitutionally valid, was because according to them my client consented to the search of his house. Today the government in this matter argued my client consented to a search of his house, offering the testimony of the officers who said my client consented to search and therefore the government did need a search warrant. While this theory may be true in other circumstances, a warrantless search and seizure is justified if the homeowner consents to a search and seizure. However this was not the testimony that supported the charges, this is not the way in which testimony came out at the prelim exam during cross-examination. Had the testimony in the preliminary examination been that they requested consent of the homeowner/my client to search his house and asked if they could come into search the house for illegal contraband or whatever arguably that would've made for a constitutionally valid search and seizure.   As I argued today and in contrast to the states position I relied on the testimony at the prelim exam where I had locked the officers into admitting that they did not follow proper procedure, but upon encountering my client at the front door during the “lawful knock and talk”, that they indicated the reason to which they were there. That reason according to the officers was that there was a tip that they had received that there was an illegal marijuana grow that occurred was occurring at that location.   As I got the officer to admit that when you explain to my client the reason why you were there when you're doing your knock and talk that he responded by telling you that he was a medical marijuana patient and that there was no illegal substances within the house.   The officer answered yes.   I said then what did you say next that ultimately resulted in you gaining access to the house the officer said “well I told him that he needed to check whether or not he was in compliance with the Michigan medical marijuana act”. During this colloquy I said to the officer please explain to me, please direct me, please show me what is your legal authority for doing a compliance check of any individual regarding their medical marijuana behavior?   It is here at this juncture that the state’s case against my client fell apart. There is no legal authority for any drug task force team to do a medical marijuana compliance check. The specific section of the MMMA that prohibits this is section 333.26424G, possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of a person or property of the person possessing or applying for the registered indication card, or otherwise subject the person or property of the person to inspection by local county or state government agencies.   At the hearing today it was this compliance check issue that was flushed out and ultimately the constitutional violation the resulted in the court holding that the consent to search was not valid. Because of that issue, the court found that the police did not constitutionally validate the warrantless search. The issue of consent to search has an abundance of jurisprudence both in Michigan and the federal court system. The concept of consent has been written about often, and raises various issues, charges, defenses etc. regarding police officers interactions with citizens. The States intrusions of citizens rights, or what would be described as unconstitutional, is of no consequence if the citizen, suspect or accused consents to that government behavior.    However, consent must be unequivocal. It can’t be wishy washy and it can’t be based upon false or misleading information. Consent must be unequivocal and it must be given knowingly, voluntarily without threat or coercion. The capitulation to the government’s request can’t be based upon trickery or a lie.    The circumstances of my client’s case today were about the consent, or shall i say consent that was not unequivocal or constitutionally valid.   I read from the transcripts from the preliminary exam ( quoting from the testimony of the officers) where the officers had testified that the last statement made to my client before entering his house was that they the investigator/ detectives needed to do a medical marihuana compliance check. These same officers admitted they were not part of the MMFLA task force or investigators ( and were not even sure that they were even aware of the existence of that agency). I pointed out to the judge that there exists no legal authority by these officers to do a compliance check. A compliance check is not the same as consent to search. By asking, suggesting even implying that they had this legal authority is obtaining consent by trick, by misrepresentation or whatever you may want to call it, it was not “ knowing, voluntary and or without duress” consent.    It was this behavior by the government actors the Court found to be the constitutional violation. The court found that my client’s consent, which was allegedly obtained, was invalid, and the warrantless search of the residence and the seizing of the property and “evidence” was unconstitutional. Thus the evidence seized was done so illegally and the court suppressed the evidence and all the charges were dismissed.    The lesson learned here, and the take away is simple.    1.  Don’t be fooled into believing that there exists a legal authority for police officers or drug task force officers to check or determine you compliance with the MMMA    2.  Never, Ever, Ever consent to a search.    The often forgotten 4th amendment got some love today, and my joy is that this Court today had the courage and wisdom to make the correct ruling.   
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  • Michael Komorn

    Don’t Beauregard that joint my friend.

    By Michael Komorn

    Attorney General Jeff Sessions January 4th memo regarding marijuana enforcement is historic... and it should promptly be consigned to the dustbin of history. Mr. Session’s very name is a history lesson. Like his father and grandfather, he was named after Jefferson Davis, the first and only president of the Confederacy and P.G.T. Beauregard, the first prominent general of the Confederate Army. These were the men who lead the people of Alabama in their desire and purpose to join the “slave-holding states” to secede from the U.S. and form a government where “in no case shall citizenship extend to any person who is not a free white person.” See Alabama Ordinance of Secession. Mr. Sessions memo overturning Obama era guidelines for federal marijuana prosecutions is entirely consistent his historic roots. Here’s why.     When the South failed in its quest to preserve the “peculiar institution” of slavery, Jim Crow and segregation followed. “Separate but equal” became the rallying cry to keep whiteness supreme. With Brown v. Board of Education and the Civil Rights Act of 1964, this became impossible. American society convulsed. In 1968, Richard Nixon took the White House by appealing to the “silent (white) majority” and exploiting Southern fears of the recently empowered African-Americans. The South has been Republican ever since. Here’s how Nixon did it. He declared a War on Drugs. John Ehrlichman a Nixon staffer revealed the real roots of the criminal prohibition of marijuana and other substances: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” By 1980 with the ascension of Ronald Reagan (and Nancy Reagan’s vacuous “Just Say No”), the drug war was hitting its stride. George H.W. Bush amended the Posse Comitatus Act to allow the military to be used as a domestic police force in the drug war, effectively para-militarizing police forces across the nation.  In 1994, Bill Clinton passed the Violent Crime Control and Law Enforcement Act. In the 22 years since the bill was passed, the federal prison population more than doubled. War is a bi-partisan vice, and scare-mongering reliably delivers votes. It is to this era that Mr. Sessions seeks to return us with his memo. That is because the war on drugs has been extraordinarily successful in its primary purpose: to vilify Blacks and the Anti-war left, arrest their leaders, raid their homes, break up their meetings, and put them in jail. By 2000, incarceration numbers began to become available in parts of the South demonstrating that the drug war increasingly was a war on African Americans, particularly Black males of prime breeding age. One in three black men in the United States between the ages of 20 and 29 years old was under correctional supervision or control. Among the nearly 1.9 million offenders incarcerated on June 30, 1999, more than 560,000 were black males between the ages of 20 and 39. At those levels of incarceration, newborn Black males in this country had a greater than 1 in 4 chance of going to prison during their lifetimes, while Latin-American males have a 1 in 6 chance, and white males have a 1 in 23 chance of serving time. The United States was incarcerating African-American men at a rate that was approximately four times the rate of incarceration of Black men in South Africa. The rate of imprisonment for black women was more than eight times the rate of imprisonment of white women; the rate of imprisonment of Hispanic women was nearly four times the rate of imprisonment of white women. We can trace those disparities directly to discriminatory and selective enforcement of the drug laws. Most illicit drug users were white. There were an estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15 percent), and 1.4 million Hispanics (10 percent) who were illicit drug users. Yet, blacks constituted 36.8% of those arrested for drug violations, over 42% of those in federal prisons for drug violations and almost 60% of those in state prisons for drug felonies; Hispanics accounted for 22.5%. Drug laws had become the new Jim Crow. Texas was particularly bad. By 2000, there were more Texans under criminal justice control, 706,600 -- than the entire populations of Vermont, Wyoming or Alaska. Texas’s incarceration rate of 1,035 per 100,000 population tops every state but Louisiana. If Texas were a separate nation, it would have the world’s highest incarceration rate, well above the United States at 682 per 100,000 or Russia's 685.  The state's prison population had tripled since 1990, rising more than 60 percent in the past five years -- from 92,669 to 149,684.  Black Texans were incarcerated at a rate seven times that of whites -- and at a rate 63 percent higher than the national rate for blacks.  Blacks supplied 44 percent of the inmates in Texas although they constituted only 12 percent of the state's population.  More than half of all Blacks were in jail in Texas for nonviolent offenses. They ended up picking cotton, herding cattle or, contracted out as labor to assemble computers. Then came 9/11. Criminal justice reform took a backseat to terror wars until those wars too lost all legitimacy. It was not until the election of Barack Obama and the appointment of Eric Holder that the real roots of this massive, fraudulent, unjust war on drugs began to be addressed. Over the course of that presidency, states were allowed to advance their experiments with medicinal and later adult use marijuana. Civil asset forfeiture at the federal level was reigned in and the use of private, for-profit prisons was curtailed. A key part of this reform was a statement of guiding principles for federal prosecutors regarding marijuana. These guidelines allowed states to proceed with some predictability in their local marijuana programs. Mr. Sessions has undone all of this. Why is this important? Because the numbers have only grown worse. An African-American in Michigan is three times more likely to be arrested for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups. In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests. Overall, African-Americans in Michigan are incarcerated at roughly five times the rate of whites. The numbers in the white flight counties of the Eastern District of Michigan are even more unconscionable. In St. Clair County, African-Americans make up 2.5% of the total population yet account for 43% of arrests for drug law violations. In Oakland County, African-Americans make up 14.4% of the population yet account for 48% of arrests for drug law violations. In Lapeer County African-Americans make up 1.2% of the population yet account for 10.4% of arrests for drug law violations. In Genesee County African-Americans make up 20% of the population yet account for 76% of drug arrests. This according to the U.S. Bureau of Justice Statistics. Medical marijuana patients and programs are squarely in the cross-fire of a war with deeply racial roots. We say that the only citizen more vulnerable to police misconduct than a young black male in Texas is a medical marijuana patient in Michigan. Mr. Sessions knows all of this. It is in his blood. In his name. This is not accidental. Mr. Sessions and his ilk want to return us to an age when names like Jefferson Davis and P.G.T. Beauregard are names to be proud of and ditzy slogans like “just say no” and “good people don’t smoke marijuana” substitute for real science. Mr. Sessions war is arbitrary, capricious, and racist. His dismissive memo merely enshrines the worst of policies and promotes selective and discriminatory enforcement of the law. Can a community that has been abused for years by a corrupt, federal, militarized police force that is selectively enforcing the law on the basis of race organize to end its oppression? Yes. See e.g. the American Revolution. In 1776, the British Redcoats had become a federal military police force with wide ranging powers to enforce the contraband laws Then, as now, most contraband consisted of drugs, primarily tea and tobacco. Then, as now, the police were allowed to issue “writs of assistance” (roving search warrants devoid of probable cause) allowing them to seize and keep the property of those persons believed to be illicitly trafficking. Then, as now, such power and temptation corrupted the police authorities, resulted in selective enforcement of the law and produced wide scale violations of God-granted liberties. Then, the community organized to resist. The Boston Tea Party, the American Revolution and the Bill of Rights ensued. Among the rights enshrined is the right to organize and to oppose abuses by a federal, corrupt, militarized police force. 2nd Amendment to the U.S. Constitution. “I thought those guys (the KKK) were alright until I learned they smoke pot.” -- Jefferson Beauregard Sessions III    
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  • Michael Komorn

    Michigan Medical Marijuana Expert Defense Attorney Michael Komorn gets grilled by House Committee while supporting asset forfeiture reform.

    By Michael Komorn

    Michael Komorn is dedicated to defending his clients from both criminal charges and civil asset forfeiture. During a committee meeting on House Bill 4158, a bill to reform asset forfeiture, House Committee member Triston Cole tried to find any possible way to attack Komorn's client testimony. With Michael's 9 years of dedicated experience to medical marijuana , he was ready to get deep into analyzing each question. Finally turning the questions around on Mr. Cole and defending his clients, once again, but this time in the public eye of a committee meeting. Watch below as Michael knows every nook and cranny detail of the Michigan Medical Marijuana program, and uses that knowledge to support the bill.       But Lucido's bill may be in trouble. Police and prosecutor unions including PAAM are fighting tooth and nail to keep those assets and any auctions they run to sell off peoples property. Police have been relying on asset forfeiture which has encouraged them to abuse the system. The majority of forfeitures were for $1000, who would hire a $3500 lawyer to fight to get $1000 back? Most people walk away from their own property forfeitures because the economics of it.   Lucido Wants To Finish The Job On Reform of Civil Asset Forfeiture Rep. Peter LUCIDO (R-Shelby Twp.) says he wants to finish the job of reforming civil asset forfeiture in Michigan and has introduced  HB 4158 to prohibit its use by police unless a person has been convicted of a crime.   He told the House Judiciary Committee today that improvements made last year require police to report how much property they seize and end residents needing to post bond to get their property back. However, he wants more (See "No Bond Needed To Get Seized Property Back Under Passed Bill," 3/22/16).     "Last year, Michigan law enforcement agencies seized over $15 million and change, along with 2,037 vehicles. They seized 806 weapons, 276 financial securities, and 15,160 other pieces of personal property," Lucido told the committee. Before that, agencies weren't required to report seizures, so it is not known how much property police confiscated, he said.    Police use civil asset forfeiture as a way to battle drug trafficking. The process allows police to seize property believed to have been used in the course of committing a crime, like the vehicle that drugs are transported in or cash from drug deals.    Lucido said no one should profit from criminal activity, but he contends the process is being used in some cases excessively, and in some cases to supplement police department budgets.    "No one was charged with a crime in 523 cases of those 5,290 cases," Lucido said about last year's statistics. "Ten percent of the crimes, that they claim were crimes, but (people were) never charged, never convicted, and lost their property without even being charged as a criminal. Another 196 people were charged but never convicted."    Committee Chair Jim RUNESTAD (R-White Lake) held an extended session of the committee meeting, but didn't call a vote on the bills. He said he would take more testimony on the proposal in the coming week. Today's testimony was all from individuals in support of ending the practice. He expects law enforcement agencies will testify next week in defense of the use of civil asset forfeiture. He said the committee has to hear from both sides.    Attorney Michael KOMORN brought several of his clients before the committee to tell of their experiences with civil asset forfeiture. Amanda JOSLIN, a medical marijuana user, said police raided her home in 2015, seizing her home, car, a game system and her son's paychecks from his job. She said they even took a steam mop.    Eventually, charges were dismissed against her, but she got none of the property back.    Joslin contended that while civil asset forfeiture may have been intended to combat drug dealing, police have concluded "they can take money from the low-hanging fruit, which is the medical marijuana community."    Ted NELSON, who is retired from the Michigan State Police, spoke in favor of eliminating civil asset forfeiture. He said it was intended to battle drug smuggling and to confiscate the cash generated by drug sales. Now it is being used excessively.    "If they needed a couch for their office, they would take a couch. In my opinion, that is not was civil asset forfeiture was intended to do," Nelson told the committee.       Former State Trooper: Cops, Prosecutors Misuse Problematic Asset Forfeiture Law ‘Civil asset forfeiture erodes the public trust in law enforcement’ By EVAN CARTER | Feb. 8, 2018 |  Follow Evan Carter on Twitter Editor's Note: This article was updated to note that when civil asset forfeiture first began to be used in Michigan, narcotics enforcement would obtain the proceeds of criminal activity. The Michigan State Police detective who helped train the state police in how to conduct civil asset forfeiture says the police are misusing it. Former Michigan State Police Detective Sergeant Ted Nelson, who developed a curriculum on civil asset forfeiture for the department and taught it for more than a decade, made those comments to the state House Judiciary Committee on Feb. 6. The committee hearing was the first of many which are scheduled to be heard on House Bill 4158 over the next couple weeks. After that, the committee may vote on whether to send the bill to the full state House of Representatives. The bill would require police officers and other law enforcement officials to convict someone in a criminal court before they could take ownership of cash and other assets they seize, for property valued at $50,000 or less. “Law enforcement is an extremely important vocation in our society and it is as important today as yesterday,” Nelson told the committee. “I believe that the policy and procedures of civil asset forfeiture erodes the public trust in law enforcement.” Nelson told Michigan Capitol Confidential that during his 26 years with the department, he saw law enforcement officials receive by forfeit items, such as furniture, that they believed could be used in department offices or sold for a profit. Nelson, who supports HB 4158, said this type of behavior wasn’t the reason civil asset forfeiture was introduced. Nelson said he first received training on civil asset forfeiture in the late 1980s when the practice was considered part of the war on drugs. At the time, civil forfeiture was used mainly for major drug crimes, in which narcotics enforcement would obtain the proceeds of criminal activity. Nelson developed a curriculum to teach the state police’s drug teams. He was the expert state police troopers called when they seized money and they weren’t sure it could be tied to a drug crime. “We’re the foot soldiers of the Constitution and sometimes we forget that,” Nelson said. Nelson said he doesn’t believe enacting HB 4158 would change how police officers do their job, but he believes it would change how prosecutors do their job. Shelby Township Republican Rep. Peter Lucido is the primary sponsor of the legislation. At the hearing, he said law enforcement officials can use mechanisms other than civil asset forfeiture to ensure that those believed to have participated in criminal activity cannot make a profit from ill-gotten gains or get rid of illicit substances. “We lost the war on drugs, and civil asset forfeiture has penalized the poor,” Lucido said to the committee. “Officers were sworn to protect, and not take.” Attorney Michael Komorn, who is president of the Michigan Medical Marijuana Association, attorney John Shea and national civil asset forfeiture expert Lee McGrath also testified in support of the bill. Not everyone who appeared before the committee supported the bill, however. Waterford Police Chief Scott Underwood said that while he wouldn’t directly offer an opinion on the legislation being discussed, he believes civil asset forfeiture is a useful tool for law enforcement. “I would say that for the most part, that civil asset forfeiture comes from good police work,” Underwood said to the committee. “The numbers with asset forfeiture don’t lead, they follow.” Lucido said in an interview that while he doesn’t want to imply police officers are corrupt, he believes that civil asset forfeiture is too easily abused. “If even one cop abuses it, it’s too much,” Lucido said to Michigan Capitol Confidential. “I had cops who took kid’s piggy banks and dart boards and I’m done with it.” Currently, law enforcement officials do not need to convict, prosecute, or even charge a person of a crime before they can get ownership of seized property through civil asset forfeiture procedures. In 2016, one out of every 10 Michigan residents whose property was taken by law enforcement using civil asset forfeiture was never charged with a crime.  According to a Michigan State Police report, more than 700 people were either not charged with a crime, or charged with a crime but not convicted. Since 2000, the state has taken possession of forfeited property worth $20-$25 million annually. The legislation may be part of a larger package aimed at reforming the state’s civil asset forfeiture law. If the measure passes and is signed into law by Gov. Rick Snyder, Michigan will join the 14 states (along with the District of Columbia) that already require a conviction for law enforcement to take possession of seized property.     http://www.record-eagle.com/news/local_news/state-lawmakers-eye-forfeiture-reform/article_63727629-81b7-5091-ac45-0e87ddec26fa.html State lawmakers eye forfeiture reform Local officials support 'common sense' legislation BY KYLE KAMINSKI kkaminski@record-eagle.com   TRAVERSE CITY — A bill aimed at protecting property rights of the accused is amassing support from local officials as it gains steam among state lawmakers. House Bill 4158 — introduced this month by Republican state Rep. Peter Lucido — would safeguard residents from court-ordered property seizures unless they’ve been convicted of a crime. Lucido contended its passage would affect hundreds annually. “We have people that get their property taken by police who are not detached, neutral magistrates or judges,” Lucido said. “That’s violation of property rights 101. … It’s called due process under the Fourth amendment and the 14th amendment.”   Lucido noted law enforcement — specifically through task forces like the Traverse Narcotics Team — have been overly empowered by laws that allows police to confiscate property from those suspected to be involved with drugs. Michigan’s law enforcement agencies collected more than $244 million in gross forfeiture proceeds between 2001 and 2013, averaging about $19 million per year, according to a report from the Institute for Justice. And none required a conviction. Police agencies, in turn, are authorized by law to offload those assets and keep a portion of the proceeds to buy equipment and “enhance all law enforcement activities.” Records show TNT seized at least $400,000 during the past six years. The bill would prohibit forfeitures unless a suspect is found guilty of a crime in court, amending a section of an existing state law. It would take effect next year if passed into law, and would only apply to seizures under $50,000. “$50,000 is a little bit much to have in your pocket,” Lucido explained. Local and state officials — including those who soon could be stripped of their authority to confiscate property — have praised the spirit of the bill. Others, while recognizing need for further reform, were hesitant to endorse the changes. “It would be easier for us and more fair to those who are having their property forfeited to have a criminal conviction,” said Grand Traverse County Undersheriff Nate Alger. “Our system is based on being innocent until proven guilty.” Attorney General Bill Schuette this week said conviction before seizure is a “good principle” to maintain. County Prosecutor Bob Cooney noted most local forfeiture cases include a criminal conviction but said current laws force them to continue. “I wish the state would better fund narcotics teams and not incentivize them in anyway to go after forfeiture dollars,” Cooney said. “At the same time, those laws were set up to take away profits from those selling illegal drugs. That’s the idea.” Lucido’s bill eliminates the requirement people negotiate for the return of their possessions but some officials — like Kalkaska County Prosecutor Mike Perreault — are concerned it could unfairly entwine property seizures with plea bargains. His office tries to avoid forfeiture altogether. The bill could connect those cases with criminal matters and force him into the business regardless, he suggested.   “I’m a little concerned that by tying them to a criminal conviction, it’s going to bring me people who try to barter their way out of things,” Perreault said. “I could also see the argument then that we’re only prosecuting people to take their stuff.” Advocacy groups for years have lobbied against statutes that allow civil forfeiture cases to proceed. Some contended they disproportionally impact lower income residents because of often costly legal battles attached to reclaiming property. Others have said seizures lead to “policing for profit” because police, in most cases, can keep the proceeds for their own department. Michigan State Police officials have contended the concept helps save taxpayer dollars and deprives criminals of cash. State Rep. Larry Inman said he supports Lucido’s bill and noted police shouldn’t be able to keep property without a conviction. Benzie County Sheriff Ted Schendel said “common sense” dictates police first need to prove someone guilty of a crime. “I know forfeiture is a huge asset, especially for drug enforcement teams. There’s never enough money to fund those things,” Schendel said. “But I like to err on the side of the people and the Constitution.” A legislative analysis contended the bill would have an indeterminate fiscal impact for law enforcement. It noted its passage likely would result in declined forfeiture-related revenues and impact federal revenue sharing for Michigan State Police. The bill — introduced last week in the House — was recently referred to the Committee on Judiciary. Lucido said lawmakers soon will hear testimony as it pushes forward in the legislature. Visit record-eagle.com for continued coverage.
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  • Michael Komorn

    Warrantless Wiretapping Encourages Constitutional Rights Abuses

    By Michael Komorn

    Warrantless wiretapping is a terrible idea and is unconstitutional. It was created at a time when America was thought to be at WAR with the terrorists. 17 years later, America was always at war with the terrorists. Illegal wiretaps of all communications continue, but are solely focused on Americans, and more specifically focused on the war on drugs, not terrorism. Not to be outdone, the NSA and DEA know that their secret illegal wiretaps are illegal and would not be used as evidence in the courts, so they have created "parallel construction". Parallel construction means to assemble the evidence while hiding the source of the information. This means automatically denying the right of the accused to see the evidence and witnesses presented against him. A long held tradition that any evidence used against you in court must be scrutinized for constitutional issues and be legitimate and truthful. https://www.reuters.com/article/us-dea-sod/exclusive-u-s-directs-agents-to-cover-up-program-used-to-investigate-americans-idUSBRE97409R20130805   https://www.techdirt.com/articles/20140203/11143926078/parallel-construction-revealed-how-dea-is-trained-to-launder-classified-surveillance-info.shtml   Why are the Democrats voting with the Republicans to give President Trump these powers to illegally spy on everyone ? It makes no sense. Where is the #Resistance ? Probably the secret blackmailing files have already been completed on all of the congress members and now the NSA controls our government and other countries' governments forever.   https://www.wired.com/story/fisa-section-702-renewal-congress/ It is a strange web that has been cast over the entire world. Other countries have teamed with AT&T and the NSA to spy on internet, phone and email communications of all citizens and data passing through their systems. https://www.npr.org/2013/10/23/240163063/government-changes-policy-on-warrantless-wiretap-defendants http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html
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What is Policing For Profit? And How Does It Impact Public Safety?

WHAT IS POLICING FOR PROFIT? HOW DOES IT IMPACT PUBLIC SAFETY? Michigan Moms United compiles crime arrest statistics to show, in no uncertain terms, how the practice of policing for profit decreases public safety.  Rather than investigate and arrest suspects who commit violent crimes such as rape, murder, assault, and robbery, Michigan police and prosecutors focus efforts on consensual, victimless crimes. Why? Because doing so brings much-needed funding to cash-strapped law enforcement agencies.  Maryland, Montana, New Mexico and Washington D.C. have enacted comprehensive forfeiture reforms, by Michigan law enforcement have prevented substantial reforms. More on this issue in a future blog. Here’s how policing for-profit works. The federal government provides grants to drug task forces to “go get drugs,” but does not give grants to detectives who work to find murderers or rapists. Civil asset forfeiture laws allow cops and prosecutors to forfeit cash, assets, and property of anyone accused of drug or prostitution crimes. They don’t have to obtain a conviction or prove in any way the defendant was committing a crime. Local law enforcers also keep all proceeds, sharing with federal agencies. By now everyone knows about the over 11,000 long-forgotten rape kits found in an abandoned Detroit building. Police cannot forfeit anything from rapists. Considering the Michigan State Police Crime Lab admits marijuana testing accounts for 40% of its workload, we can safely assert it’s much safer to live in Michigan if you’re a rapist than a medical marijuana registry participant. The warrants executed in search of forfeiture often violate the civil rights of Michigan families who have no criminal intent and do so in the form of excessive force, sexual harassment and child endangerment. Here's just one example, the Shattuck family in St. Clair County, which is the subject of a civil rights violations lawsuit from the Law Office Of Michael Komorn.  The numbers below are statewide arrest rates and as you can see, they do not change much from year to year. It’s time we take public safety seriously, face the ugly truth about policing for profit and begin to heal relations between communities and police. Michigan Moms United calls on the Michigan Legislature to substantially reform our civil asset forfeiture laws, eliminate policing for profit and require law enforcers to increase arrest rates for violent crimes. Michigan Moms United has interviewed hundreds of Michigan families eviscerated by both these unjust laws and the SWAT raids used to ransack their homes and businesses in search of forfeiture. We work to educate the media and legislature about how the failed drug war decreases public safety and destroys families.   ********************************************************************************* Arrests/Incidents = Arrest Rate   2008 Prostitution      955/1134         =          84% Drugs              34,250/43,999=           77% Murder            168/258           =          65% Assault           10,463/28,031 =           37% Robbery          2726/13177     =          20% Rape               1676/10,335   =           16% Arson              322/2754         =          11%   2009 Prostitution      735/803           =          91% Drugs              35,427/44,442 =          79% Murder            223/579/          =          38% Assault           10,076/27,079 =           37% Robbery          2645/12,396   =           21% Rape               1593/9886       =          16% Arson              301/2556         =          11%   2010 Prostitution      447/487           =          91% Drugs              35,317/44,144=           80% Assault           9912/26,303   =            37% Murder            188/528           =          35%                                          Robbery          2600/11,358   =           22% Rape               1653/10,228   =           16% Arson              286/2830         =          10%   2011 Prostitution      335/409           =          81% Drugs              32,359/40,831 =          79% Assault            9458/24,060   =           39% Murder            170/580           =          29% Robbery          2261/10,354   =           21% Rape               1491/9688       =          15% Arson              277/2529         =          10%   2012 Prostitution      390/414           =          94% Drugs              32,744/43,062 =          76% Assault            9056/23,795    =          38% Murder            163/628           =          25% Robbery          2078/10340     =          20% Rape               1479/10,109   =           14% Arson              267/2256         =          11%   2013 Prostitution      307/373           =          82% Drugs              35664/45338 =            78% Murder            258/585           =          44% Assault            8954/22813     =          39% Robbery          2223/10201     =          21% Rape               1508/9780       =          15% Arson              255/1873         =          13%   2014 Prostitution      388/453           =          85% Drugs              35,762/44,224 =          80% MURDER        325/508           =          63% Assault            9303/22,862   =           27% Robbery          1867/8171       =          22% RAPE              1480/9319       =          15% Arson              238/1621         =          14%   2015 Prostitution      627/741            =         84% Drugs              36,686/45,645 =         80% Murder            253/539           =         46% Assault            9081/22665     =          40% Robbery          1619/7775       =          20% Rape                1472/9836      =          14% Arson              243/1912         =          12%  

Charmie

Charmie

 

Medical Marijuana Victory in Clarkston!

Komorn Law, PLLC and Attorney Allen Peisner are proud to report the well-deserved dismissal of all marihuana charges for a young man and his family. We are proud about this one for many reasons. It is well understood that this jurisdiction (Clarkston - in the heart of Oakland County) is not known to be friendly to medical marijuana patients. In fact, in this venue at the arraignment, this particular Judge as a matter of practice tells the presumptively innocent patient that they must decide if they want to use their medicine or drive. They can’t do both. Of course, this defies most if not all principles of Michigan jurisprudence. Nevertheless, when he was forced to choose, my client chose his medicine. Of course, to get to work without a driver’s license my client has to ride his bike, which requires him to ingest medicine more frequently than before the Court had imposed the no driving condition. My client was a medical marihuana patient and had received his recommendation from his physician in December 2016, but had not yet sent his application to the State. In other words he didn’t have his registry card at the time of the incident. The backdrop here involved a traffic stop in early 2017. The officer claimed he smelled marihuana; later when searching the vehicle he found two ounces in the locked glove box. The client made a few utterances (always best to not say anything at all) at the roadside, all consistent with his assertion that he was a patient and was intending to use it medical, and ingest it at some other time. After a few pretrials, adjournments, and some administrative hurdles the matter got set for our evidentiary hearing pursuant to section 8 (See People v King/Kolanek). As it should be, the explanation of the three prongs was required to be established at the hearing (in short: 1. Bona fide Physician/Patient Relationship, 2. The amount of marihuana was reasonable and necessary. 3. The marihuana was for the patient’s medical use) was presented with confidence and detail. As I often suggest to patients prior to testifying, the topic of inquiry is something that no one knows better than you, the patient. No one other than you really knows or understands your medical condition better. The medical efficacy of cannabis to treat that condition likewise is information unique to each patient. With that being said, my client’s testimony was more than compelling. In 2008, over 3 million Michigan voters, enacted the MMMA, and amongst other declarations, they stated cannabis is medicine. As often overlooked, it was intended to be just that - a medicine that amongst other things is intended to treat a long list of serious medical conditions, one of which is chronic pain. My client’s story begins with walking onto the MSU track team and competing at a Big Ten collegiate level for his first three years, before being cut from the team in the last part of his junior year because of a muscle tear in his hip. All things bad happen to runners when this muscle tears, including limited range of motion and severe pain. Prior to his leaving the team, he was given access to the very best of medical treatments from all this Big Ten school’s trainers and doctors could offer. This included daily rehabilitation, and muscle relaxers and pain medications. His other option was to have surgery, which according to his physician was not recommended because of his age. While he did get some relief from the daily rehab during the summer, this became an impossible treatment when he returned for his senior year, and had a full load of classes. With his collegiate athletic career behind him, he had resolved to direct all of his energies into his senior year with his eyes on graduate school. Despite additional free time from no track practice, travel to meets etc., the pain from his hip was not going away. For these reasons, he explained “I wanted to explore medical cannabis to treat my hip problem, because nothing else was working. The simple task of walking to class had now become a painstaking task that was challenging on a day to day basis.” There is little that can be said about his testimony other than it was real. Of course, on cross exam, he had to put up with silly challenges and questions with no substance but an intention to try to confuse or take advantage of the novelty of testifying in court for the first time. The only disappointing aspect of the case was that I had to restrain my anger in responding to the Assistant Prosecutor’s argument that the physician didn’t testify, and it is only through that testimony can a patient establish what is an amount reasonably necessary. Neither of these arguments are true, as outlined in the most recent Michigan Supreme Court case People v Hartwick/Tuttle. I saved the argument, “Judge I want to remind the Court that my client is currently on bond, and has been authorized by this Court to use medical cannabis as one of his conditions of bond, I would argue in conjunction with the testimony, you should dismiss the charges, or at a minimum let us argue the affirmative defense to the jury.“ In short order, and shall I say surprisingly, the Court quickly shut down the APA’s misplaced arguments about the law regarding section 8. Despite what I thought was more than enough evidence to dismiss the Court found that the evidence established that we could present the affirmative defense to the jury. A brief bench conference ensued and talks of permission from supervisors in the APA’s office, and we were given a pretrial return date – to set a trial date. Today at that pretrial the APA informed us that they would dismiss the case with prejudice. To say it is was a waste of resources – to be required to go this far to establish the evidence that we did – would be an understatement. With the opioid epidemic that plagues Michigan and the County, how can this endeavor be justified? To even the most anti-cannabis crusader, wouldn’t the dollars needed to keep this case going be better spent testing the untested rape kits that remain in the thousands all of over Michigan? Does it still make sense to anyone that the State of Michigan utilizes 40% its Forensic Science Division’s budget testing marihuana? That the same 40% or greater of marihuana cases make up the docket in Courtrooms all over the State of Michigan. Could it ever make sense to anyone that this scenario would somehow justify my client being denied admission to post graduate education or acquiring the professional license that he had spent most of his adult life committed to? Attorney Peisner’s involvement was stellar as expected, and his performance in keeping the fight going was pivotal. Thank you, Allen It was an honor to represent my client, and his family. Today was a good day, the broken system produced an excellent result, the MMMA worked and for a few moments, albeit fleeting, justice was served.

Michael Komorn

Michael Komorn

 

MMMA Endorses Dana Nessel for Attorney General 2018

We are proud to announce our support for Dana Nessel as Michigan’s next Attorney General. I have known Dana for many years , both while working for the Wayne County Prosecutor's Office (handling complex criminal prosecution) and in private practice.   She is recognized within the attorney community to be an exceptionally skilled attorney. Most importantly she stands behind Michigan’s ballot initiative to treat marihuana like alcohol, and the voters initiative of 2008, the MMMA. It is time that the leading law enforcement agent in the state of Michigan support the People's will and desire to develop reasonable policies regarding marihuana reform in Michigan. We encourage anyone interested in making Michigan Green to show up at a future campaign event and hear it for themselves. In case there was any questions as to the carnage caused by the current Attorney General, here is the evidence it is time for a change. Dana Nessel for Attorney General 2018. Opinion #7259 - coops.pdf Opinion #7261 - smoking ban.pdf Opinion #7262 - return seizures.pdf Opinion #7271 - child protection.pdf

Dana Nessel for AG 2018

Dana Nessel for AG 2018

 

10 Frequently Asked Questions About Cbd

If you have ever been curious about medical marijuana and done any research, then you know that one of the major compounds in the cannabis plant that is medically useful is the phytocannabinoid cannabidiol. While THC does have its medical uses, THC is psychoactive and produces the “high” that some people are familiar with when it comes to marijuana. Cannabidiol is not psychoactive, but does provide relief for millions of people around the world. Here are ten frequently asked questions about cannabidiol and the answers. 1. What is CBD? Of the 113 known active phytocannabinoids in the cannabis plant, cannabidiol (CBD), makes up the majority – coming in at about 40% of the plant’s extract. Though it may be the most prevalent compound, it is unlike its partner compound, tetrahydrocannabinol (THC) in that cannabidiol is not psychoactive. CBD is the phytocannabinoid that stopped a seizure in its tracks on national television. It also helps to soothe pain and anxiety. Medical science is also looking at this compound as a neuroprotectant and an anti-tumoral agent. 2. What Conditions or Symptoms Can CBD Oil Relieve? Cannabidiol is a versatile phytocannabinoid. Though it is tough to do medical research on cannabidiol because it can affect so many of the body’s pathways at once, patients with the following conditions have reported relief from cannabidiol: cancer, diabetes, Parkinson’s disease, Fibromyalgia, Osteoporosis, and various pediatric conditions. Anxiety, epileptic disorders, and psychiatric disorders are three of the top conditions medical research is using cannabidiol to treat. 3. Will CBD Show Up on a Drug Test? Drug tests for employment are a fact of life for many Americans. However, the majority of drug tests are looking for the psychoactive compound tetrahydrocannabinol (THC). Though high-CBD strains of marijuana can contain traces of THC, if you are using CBD oils or hemp extracts, the drug screen should not pick up the trace amounts of THC. However, keep in mind that this is only the case with hemp-based products, since hemp contains very little THC, but is high in CBD. 4. Is CBD Psychoactive? No. CBD is the most prevalent cannabinoid in the cannabis plant, but it is tetrahydrocannabinol that is the psychoactive compound. CBD compounds are mainly derived from the hemp plant, which is a high CBD strain of cannabis. There is typically very little THC in high CBD strains of the plant. 5. Can You Vape CBD? In a word, yes! You can get high-CBD strains of marijuana buds as well as oils and extracts. So, bring out your vape pen, your mod, or your desktop vaporizer and get to it! Make sure that you are vaping the appropriate material for your machine, though. Some pen vapes and mod vapes only support the vaping of either wax, oil, or dry herb. There are some models that will support all three with a simple change of the tank, atomizer, or chamber. 6. What Forms Does CBD Come In? The most often used format for cannabidiol is oil, which patients either smoke or vaporize. High-CBD strains of bud also exist. Other popular forms of CBD are tinctures, edibles, and topicals. Tinctures are often placed under the tongue while topicals are typically used as a balm and rubbed on the skin. Edibles, of course, are eaten. 7. Can I Buy CBD Products Online? This is a bit of a trick question. Keep in mind that the cannabis plant – and all its extracts – including cannabidiol – are still illegal under federal law. This essentially makes shipping CBD products from state-to-state illegal. If a website is stating they will ship to any state, including non-medical states, they are not likely using the same CBD oil as medical therapy utilizes. They are likely deriving their CBD product from the hemp plant – which is legal to import and ship – but not to grow in the United States – and treating it with harsh processes to extract enough cannabidiol for their products. Currently, there are no standards set forth by the FDA about how much cannabidiol has to be in a product to claim the product is a “CBD Product.” So, purchase online at your own risk. 8. Do I Need a Medical Marijuana Card to Buy CBD? This is another one of those yes and no answer questions. If the CBD is hemp-based, then no. However, keep in mind that the hemp plant has relatively low amounts of CBD when compared to cannabis plants. The CBD derived from the hemp plant will be several times less potent than CBD that is derived from cannabis. To purchase medical marijuana products in states where medical marijuana is legal, you do need a Medical Marijuana Card. 9. Can You Overdose on CBD? In a word, no. Even at doses of 700mg to 1500mg per day, there was no toxicity shown for cannabidiol. There have been no known deaths reported due to overdosing on CBD or cannabis despite decades of research into the toxicity of the plant. 10. How Do I Store My CBD? What is the Shelf Life of CBD? Depending on the form you decide to take it in – CBD should be stored appropriately. For the oil, it should be stored in a dry area away from heat. Edibles should be stored as directed and eaten before their expiration date, as with any food. The typical shelf life of cannabidiol oils and products can vary by manufacturer, so check expiration dates. However, most are good for up to 2 years.

Michael Jacobs

Michael Jacobs

 

Making A Federal Case Out Of Marijuana

Our client, a medical marijuana patient registered with the State of Michigan, was out for a boat ride and some fishing on his friend’s boat. What started out as a glorious day with intentions of sun and fishing on the Detroit river later turned into federal charges of possession of marijuana (21 USC 844, 21 USC 844a) when a Border Patrol agent pulled up to them and wanted to search their vessel.   Related: Michigan law regarding marijuana manufacture, delivery, and possession   The federal border patrol agent required that the two passengers, my client and his friend, open all the containers in the immediate area, to which they complied.   After the agent found no contraband, he demanded that the occupants of the boat hand over the marijuana because, according to the agent, it smelled like marijuana on the boat. Additionally, the agent said that if someone did not give him the marihuana, he was going to call the K9 unit.   What does the driver of a car or boat say in response to a law enforcement officer demanding that the occupants of the vehicle hand over the marijuana, or else?   For a vehicle, we know that the traffic stop can't or shouldn't take last for any longer that it takes to execute the traffic stop, identify and inform the driver of the violation, and issue a ticket, if appropriate. A traffic stop is not an opportunity to gather evidence of probable cause of the vehicle to search. That basic threat, calling the dogs, would be unconstitutional. That is to say, the delay in calling the dogs to get probable cause would be a delay beyond the scope of the lawful police interaction. The delay to call the dogs is a delay for the purpose of getting probable cause to search the vehicle.   Most times this decision on how to respond should be determined on a case-by-case factual basis. In other words, depending upon what is within the vehicle, the driver may or may not comply with the request of the officer. The rule of thumb, however, is to never consent to a search, ever. Equally important is the rule that you should never talk to the police or answer questions. Specifically, in these traffic encounters, or even vessel encounters, the investigated driver is not under arrest. The encounter is an interaction called an investigation, and anything that is said during this encounter will be used against you.   Ultimately, our client handed over the marijuana cigarettes and his patient card. As my client was reminded by the Border Patrol Agent, there is no medical marihuana on federal jurisdiction. Or said another way, it was the intent of this agent to make a federal case out of it.   After being retained by our client, and after a few pretrial conferences and conferences with the Assistant United States Attorney, we learned that it was also the intent of the United States Government to make a federal case of it.   Federal jurisdiction, as mentioned above, is a very different venue to litigate a marihuana case, even if it’s just for a joint or two. The liabilities for punishment are much greater, and in certain situations get worse, the more the accused litigates the case. That is to say, any benefits of resolving the case with a plea bargain are minimized should you force the government to litigate the case.   It is under these circumstances that we needed to make our decisions on how to proceed. As we got closer to the day of trial, the Government offered a number of different plea offers and options to resolve the case. Unfortunately, none of them contemplated the medical use of marihuana while being supervised on probation. Similar to many of the State Courts throughout Michigan, the likelihood of any probation supervision of any kind would preclude the medical use of marihuana.   Not directly pertinent to this case either factually or due to our federal court venue, the only Michigan case law that addresses the issue is a recent case in the Court of Appeals, People v Magyari, the defendant argued that, pursuant to the MMMA, the court could not prohibit his medical marijuana use during probation because he possessed a patient card, but the court’s opinion characterized the defendant’s use of marijuana as non-medical, and did not apply their reasons for upholding the lower court decision the appeal to all cardholders.   A probation condition disallowing his medical use of marijuana was not acceptable to my client, and besides, who would want to plead guilty to something that the state government has authorized you to possess, let alone be on probation for the same behavior? So as often is the case, the choices that presented themselves compelled us to reject the offers to plead guilty and instead litigate the case.   Our response to the offer to plead guilty was to file a “Motion to Dismiss Based Upon Justice Spending Funds to Prevent Implementation of Michigan Marijuana Laws.”   I think it is more than ironic that as we put together the motion challenging the federal government’s authority and jurisdiction to prosecute the matter, the issue of States’ Rights was in the forefront in a national debate.   As outlined in the motion, the legal authority prohibiting the jurisdiction of the government in our matter was vitiated by the Cole memorandum – both of them. Additionally, the Rhorabacher-Farr amendment was more than clear in its intent to preclude federal agents employed by the DOJ, including the DEA, from investigating or prosecuting medical marihuana patients that are in compliance with state law. If there was ever a case with the perfect facts to prevail upon it would be this case, and the mere two marijuana cigarettes. In contrast, the circumstances of the case cited, US v McIntosh, dealt with dispensaries and commercial marihuana sales. Our case was as authentic patient activity as one could find.   After filing the motion to dismiss, and appearing for the motion hearing, we learned that the Government had decided to dismiss the case. The AUSA indicated to me that he had "no desire to go to the mat with me on this case" and he was "not going to make bad case law with this case." Or said another way, he knew that he was going to lose, and instead of dealing with that result which would be precedent and impact the entire Sixth Circuit Trial Court, he thought it best to dismiss the case, and let us go on our way.   The moral of this story is that when they make a federal case out of it, you should do the same.

Michael Komorn

Michael Komorn

 

Doubling Down On Protection From Conviction

Regarding the Supreme Court decision in People v Hartwick and People v Tuttle, I offer the following agreement that might be used between any patient and any caregiver. Both can benefit from it under any circumstance. It costs nothing but time, ink, and paper, and offers added protection in the event you are arrested and tried for marijuana use if and when you need it. You can find the ruling in Tut/Wick here: http://courts.mi.gov...71 Opinion.pdf. Footnotes 77 and 78 lay out the case that this type of documentation is admissible, and even necessary, evidence in any prosecution regarding marijuana. The agreement's tenets were used in the successful defense in State v Steven Fisher (http://komornlaw.com...n-8-opinion.pdf). He was found to have possessed a reasonable amount more than thirty pounds and in compliance with the other elements of the required defense.  It is not useful to only registered patients and caregivers, but also provides what the courts require as prima facie evidence in non registered sec. 8 defenses. Any patient or other person, registered or unregistered, can qualify as a caregiver under the definition found in the law (sec. 3(k)) to any patient, registered or unregistered, with or without connection through the registry per the definitions found in sec. 3 of the MMA. There are no limits on the number of patients a caregiver can provide for nor caregivers a patient can have in sec. 8. Police officers and informants who enter into it are not able to entrap medical users. Please note that the agreement covers two of three necessary elements of the Affirmative Defense found in sec. 8 of the law, i.e., that you and your doctor have met and concluded a bona fide medical exam and you have been certified to use marijuana, and that patients and caregivers are engaged in medical use to treat or alleviate a patient's condition or symptoms. The third element is to adhere to the requirement that an amount not more than necessary is held in possession. I have suggested that twelve oz is an amount not more than necessary to supply a patient who uses a zip a month for a year, and would welcome any reasonable argument otherwise. To this point I have had no takers.  It also intends to prevent the need to have a physician testify, which is not advised except if necessary to provide evidence at trial, saving time, trouble, and expense. Furthermore, it is best not to have any witness for the defense questioned by a prosecutor for obvious reasons. It intends to establish the required prima facie evidence of a bona fide physician patient relationship without a physician present. It will be necessary to require your physician to sign his or her proof found in the supporting documents. If not, the court ruled that the actual text of the physician statement submitted as part of the registration process might suffice. Registry cards do not. It would nonetheless be best to have both registration and this or a similar written agreement. The agreement requires notarization. Your bank provides notary services to its customers free. Many physician offices have a notary on their office staff, and all attorneys have a notary on board. It is admissible under the Michigan Rules of Evidence as self authenticating notarized evidence (MRE Rule 902 (8)) and self authenticating Certified Records of Regularly Conducted Activity (MRE Rule 803 (6) and MRE Rule 902 (11)).  You will do well to ask an attorney re: any legal questions. I am not an attorney and have no professional relationship with anyone in that regard. It is my own work as informed musing if nothing else. It is not intended as legal advice. If anyone should want the added protection, something like this might be used in consultation with a trained attorney. I have no objection to anyone using it verbatim or edited. It, by itself, provides no protection from arrest and due process as sec. 4 state registration does.     Patient/Caregiver Agreement to Engage in the Medical Use of Marijuana  I,______________________________________, swear and affirm that I am a patient under the Michigan Medical Marihuana Act, MCL Initiated Law 1 of 2008. Dr._____________________________, a physician authorized under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556, physician license I.D. number____________________ , has stated that in the physician's professional opinion, on or about (date)___________________________, and after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, that I am likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate a debilitating medical condition or symptoms associated with the debilitating medical condition (copy attached) .  I hereby designate_______________________________ as my caregiver under that law, and agree to conform to the Act in the medical use of marijuana to treat or alleviate a debilitating medical condition or symptoms associated with the debilitating medical condition  I, ______________________________________(caregiver), swear and affirm that I am at least 21 years of age and have agreed to assist with the above named patient's medical use of marijuana in accordance with that law. I have not been convicted of any felony within the past 10 years and have never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.  Confidentiality: Each party agrees and undertakes that it shall not, without first obtaining the written consent of the other, disclose or make available to any person, reproduce or transmit in any manner or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information, save and except that both parties may disclose any Confidential Information to their legal advisers and counselors for the specific purposes contemplated by this agreement. Presentment or disclosure of this information is not prohibited as required by law or in any prosecution pertaining to the medical use of marijuana. Subscribed and sworn before me this date: ____________________________  Patient sign here: _________________________________  Subscribed and sworn before me this date: ____________________________  Caregiver sign here: ________________________________  /s/_________________________________  Print Notary Name: ________________________________  Notary public, State of Michigan, County of _____________________  My commission expires ___________________  Acting in the County of ___________________     DO NOT OVERLOOK the supporting documents. Use one or the other: https://sites.google...attredirects=0, which requires notarization, or https://sites.google...?attredirects=0, which does not.

GregS

GregS

 

Successful Affirmative Defense In Isabella County Exonerates Patients

Komorn Law PLLC is happy to report that the broken criminal justice system shined a light on us today. The battle in Isabella, the State v Team Fisher concluded today with a 14-page opinion that was a joy to read. The Court held that the accused had not only presented proof of the requisite elements of the section 8 defenses, but that no question of fact existed, and therefore all charges are dismissed.   To call my client and his family courageous would be an understatement. My client, a registered patient and a caregiver for his wife, also a registered patient, was raided after an alleged anonymous tip and a trash pull. These minimal facts resulted in a search warrant for both his house and shop. According to the Drug Task Force, the raid of these locations resulted in the confiscation of 29 pounds of marihuana and 1 pound of wax.   The complaint charged the following crimes: I. Intent to deliver Marijuana MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions. II. Intent to deliver Marijuana plants. MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions. III. Manufacture Marijuana MCL 333.7401(2)(d)(iii). A felony punishable by 4 years and imposition of license sanctions. IV. Possession of a Firearm in the Commission of A Felony contrary to MCL 750.227b A Felony punishable by 2 years, mandatory prison sentence to run consecutively with and preceding any term of imprisonment imposed for the felony or attempted felony. To Wit Count 3 (as the underlying Felony) V. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions. VI. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions.   Additionally, the drug task force seized every piece or property in the vicinity they could get their hand on, pursuant to the forfeiture law. (no, the amendments have not done a single thing to slow down the DTF’s appetite for forfeiture and the glory of its proceeds). Also, an important part of this story is that my client owned a few guns, and they were in his house at the time of the raid.   As is often not reported, but all too often used, the combination of owning a gun and being outside of section 4 escalates what would normally be allegations of illegal marihuana activity to felony firearm charges. If convicted of the felony firearm charges, the crime requires a mandatory 2-year sentence to prison, to run consecutive to any other sentence. That while felony firearm requires possession of the firearm while committing an underlying felony, akin to a person selling drugs on the street with a pistol on their waistband, all too often prosecutors have extended this allegation to include patients and caregivers who are lawful gun owners. And while the law on its face suggests the possession of the weapon and the illegal marihuana behavior be contemporaneous, the law actually permits persons to be charged with felony firearm even when they are not physically possessing the firearm or even at the location where the firearm and the marihuana is located. My client’s garden was contained within the detached garage which was locked and enclosed and not accessible to anyone, and the firearms were contained within the residence, where less than the amount of marihuana allowed pursuant to section 4 was kept.   As many attorneys will say, the conversation with your client is much different when the state is charging felony firearm. So with allegation of 29 pounds of marihuana, a pound of wax and felony firearm charges, me and my client and his family put our gloves on and fought back.   The preliminary exam, which originally included my client's wife (represented by David Rudoi) and a codefendant (represented by Jessie Williams) took place over three full days, resulting in each of the accused being bound over on all charges.   Shortly after getting to Circuit Court, the codefendent was offered and agreed to plead guilty to an innocuous misdemeanor. My client's wife was offered a misdemeanor, but refused to admit that she did anything wrong. As previously mentioned, David Rudoi successfully argued to the Circuit Court judge that there was not enough evidence presented at the preliminary exam to substantiate the charges, or that the state had failed to present even probable cause of a crime, and all charges against my client’s wife were dismissed. At this point in the proceeding, with my client the only remaining defendant in the case, we began to litigate the case.   We filed literally 16 motions and litigated each of them, which included hours and hours of evidentiary hearings, and testimony from all of the witnesses involved.   It is important to note that the Judge presiding over the case allowed us to litigate the case (didn't fight obstruct or interfere with taking testimony) and was more than prepared for each of the hearings. It was obvious to us that he was conscientious of the issues and did take great efforts to analyze the facts and law for each of the motions we filed. Even though I disagreed with every one of his rulings except one, it was a pleasure to have a Court show more interest in the issues in the case, and my client's due process rights, than the age of the case. For each of the motions filed he issued a written opinion. The list of motions and the court’s rulings are listed below.   1. Motion for a Walker Hearing - Denied 2. Motion to Dismiss based upon an illegal arrest (Ferretti Motion) - Denied 3. Motion to Quash the Information and Bindover of the Felony Firearm Charges Based Upon Constitutional Grounds - Denied 4. Motion to Quash the Affidavit and Search Warrant on Constitutional Grounds - Denied 5. Motion to Reconsider Search Warrant Motion - Denied 6. Motion to Quash Bindover and Dismiss - Denied 7. Emergency Motion to Adjourn - Denied 8. Motion to Quash Search Warrant - Denied 9. Motion to Dismiss Pursuant to Daubert or in the Alternative Set for and (Evidentiary) Daubert Hearing and Memorandum of Law in Support of Dismissal or Evidentiary Hearing Pursuant to Daubert; (challenge to the advisability of the lab reporting based upon the Michigan State Police Forensic Science Division's Crime Lab Scandal #Crimefactory) -Denied 10. Motion in Limine to Exclude Forensic Evidence or Alternatively for a Daubert Hearing - Denied 11. Supplemental Memo in Support of Daubert - Denied 12. Motion to Preclude Evidence Based Upon Judicial Estoppel - Denied 13. Motion to Preclude Evidence Based Upon Relevancy - Denied 14. Motion to Dismiss Pursuant to MMMA Section 4(g), or Preclude Evidence of Paraphernalia and Request for Evidentiary Hearing - Denied 15. Motion to Dismiss Pursuant to Section 4 of the MMMA and the Amendments (That Were Signed into Law September 22, 2016 are Curative and Retroactive) - Denied 16. Motion to Dismiss Pursuant to Section 8 of the MMMA. Granted and all charges (including the felony firearm) dismissed Another interesting issue in the case, and I mention this mostly for instructive purposes, was that the State alleged that my client made an inculpatory statement or confession. According to the police (despite no audio or video recording, or written statement acknowledge by my client of what he actually said) my client purportedly uttered some sentences, which included the following words: "Dispensary, Overages, Sell". Of course my client never spoke these words as the investigators alleged. But he did talk to the police (as often times persons who don't believe they have committed a crime would do) however as it goes when people talk to the police, whatever you say WILL be used against you. (DON'T TALK TO THE POLICE-EVER).   As reflected within the 14 page opinion (what a great read) dismissing all charges based upon the MMMA affirmative defense pursuant to section 8, the court took some time addressing the impact of the so called "statement". While the courts final ruling was based upon our arguments minimizing the value of the statement for purposes of the affirmative defense, it was more than obvious to us that this opinion could have gone either way based upon the Court’s interpretation of the law and the impact of the alleged "statement." Let me say it again, DO NOT TALK TO THE POLICE.   It is important to note, and this is not legal advice, but at times throughout the case, the State made the following plea offers: Prior to litigating the motions in Circuit Court the State offered my client a resolution that if he Plead to Counts 1) 7 year felony and 5) 2 year high court misdemeanor, they would dismiss the remaining charges, with no sentence agreement. Then after we conducted the Daubert hearing and prior to getting that unfortunate ruling (the motion to reconsider was not necessary) they offered that if my client plead to counts 5 and 6 (2) 2 year high court misdemeanors they would dismiss all the other counts with no sentence agreement. Then of course after we lost the Daubert motion the State withdrew the previous offer, and offered that if my client plead to a 4-year felony and a 2-year high court misdemeanor they would dismiss the rest of the counts with no sentence agreement. Looking back on this case there was a a lot of the blood sweat and tears shed from the backs and brow of Chad, Josh, Steve, Jeff, Dewey, Pam, Deb, David Rudoi, Jesse Williams, Fred Stig-Neilson, Eric VanDussen. Including the all-nighter I pulled Sunday putting together the motion to reconsider regarding the Court’s rulings on Daubert motions (the lab issues), and the preparation for the trial that was to commence Monday - this was a battle that will never be forgotten. Additionally rewarding is the fact that my client’s case and the abusive forfeiture they and many from our community have had to endure, was highlighted in (what is clearly the greatest show ever created) "Weediquette" episode 6 of season 2. Stay tuned, the next series of motions we intend to file will be to compel the return of all of the property that was seized pursuant to the forfeiture (as well as seek other remedies for my client and his wife).   I want to congratulate my client and his family for having the will and strength to stand up for what they believed and take on the State on a lopsided playing field in the broken system often called the American judicial system.   #TeamFisher #StopTheRaids #KomornLawMI   The story continues after the prosecutor appealed our dismissal. http://www.themorningsun.com/general-news/20180326/shepherd-drug-case-reinstated-to-consider-officer-testimony

Michael Komorn

Michael Komorn

 

Police Union Head Wonders Why Everybody Suddenly Wants Them To Stop Stealing People's Stuff

"It's the worst defense of civil asset forfeiture you'll read today, or possibly ever." by Scott Shackford for Reason.com on 1-4-17.   A great article outlining the viewpoint of civil asset forfeiture from the President of the Fraternal Order of Police, Chuck Canterbury. You'll be amazed once you read this and see that this person is the President of those who swear to protect and serve. When you're done reading, you'll realize that those we entrust to protect and serve defend the tactics they use to steal from us, rather than protect us.   Read the full story here.

Michael Komorn

Michael Komorn

 

Court Of Appeals Ruling Regarding Medical Marijuana Use While On Probation

This opinion affirmed the trial court's probation order barring the use of medical marijuana. The trial court's order was specific to the crimes of which defendant was convicted (OWI & No Ops) and was reasonably related to deterring his future drug abuse and criminality. This opinion does not say medical marijuana on probation can always be barred but the basis for the ban must be related to the specific defendant and the conviction(s).   Read the opinion here.

Michael Komorn

Michael Komorn

 

Mmj And Medicare...

Not sure if this is old news, but I think with more states coming on is more relevant and much more of this type of situation will occur:   http://www.npr.org/sections/health-shots/2016/07/06/484977159/after-medical-marijuana-legalized-medicare-prescriptions-drop-for-many-drugs

GreenLads1

GreenLads1

 

Introduction

I would like to take the opportunity to say thanks and introduce Greenlads Payment Services LLC to the MMMA. My name is LeRoy Greene II and I am the owner of Greenlads. At one time, I worked within the Department of Treasury, Homeland Security, and Social Security Administration and saw a great deal of information in relation to MMJ, before it was officially legalized in Colorado. Although I no longer work for the Department of Treasury, I have been following the information closely since my exit. At the same time, I have nearly 15 years in the financial payment & technology space. I have also been tracking information closely on how banks interpret the guidelines from FinCEN and will say it is very interesting.   Recently, I have been a member of the Faster Payment Task Force, which is led by the Federal Reserve primarily out of Chicago. I think when more information goes to the public about new additions for payment types, I believe that this will provide options for the MMJ industry with B2B, B2P, P2B and possibly B2G. This criteria is rather new and implementation will be updated accordingly among banks and payment service providers as things progress.   If there is any thing I may be able to help MMMA based on my experience, I am willing to offer any assistance I can in that regard. I look forward to the blogs and just seeing how things progress here. Thanks again!   LeRoy Greene II

GreenLads1

GreenLads1

 

Thanks To Everybody Involved In Weediquette Season 2 Episode 7

I wanted to thank all the people involved with production of the Viceland Weediquette season 2 episode 7. Check it out here: https://www.viceland.com/en_us/video/search-and-seizure/57f57144a5c5e32d7a655398   To say this was exciting or a ton of fun would be an understatement. It is important to recognize that the people who were involved and the stories that they told are real stories. These stories represent the emblematic horrors that both patients and caregivers have had to endure over the last 8 years. It is unfortunate that only a few of the families that we identified as "victims" (of the state wide out of control Drug Task Force and shared with the production team from Vice) were selected for this piece, because there are a lot of families who similarly suffered.   For those who were selected by Vice for this episode, (The Shattuck family, Paul Williams and the Fisher Family), I wanted to thank and commend you all for your courage in coming forward to tell your story. No one likes being portrayed as a victim, and nobody should ever be put in that position. However, by telling your story, inviting the cameras into your home, and meeting your midwest American soccer mom families is probably the best way to effectuate a change in what can only be described as a police force that is out of control and driven by greed.   Anyone who has been a victim of a drug task force raid knows that the images of the government knocking in the front door to your home, armed with assault rifles pointed at you or your children are images that are hard to erase from your memory. There is no treatment plan or identifiable therapy for these horrific events. Most of the people who are forced to endure these violent encounters have difficulty speaking about it. However, as reflected, this was not the case for any of the people who participated in this production. Each of those interviewed unfortunately from their experiences, have become more than aware of the tactics, motives, and intentions of the Drug Task Forces. Each of them through their unique experience, whether desired or not, have become well-spoken advocates and experts on the injustice of forfeiture.   My dear friend and retired police officer Steve Miller (I always like the way that sounds) who has transformed himself from a traditional police officer to a super advocate for medical marihuana. Beyond his involvement with LEAP, he has had to endure losing friends and being described by his former colleagues as crossing the thin blue line (I say he is better off now), because he advocates for the medical use of marihuana. One could say his speaking honestly about the police officer mentality when it comes to forfeiture, may have had something to do with it. But people like him, and retired officer Ted Nelson, who help frame the conversation about forfeiture as abusive and unjust, helped make the overall story fair, and balanced.   It is too bad that the show is only 30 minutes or so. I know that there was a lot of other great footage I watched being filmed that ended up on the editing room floor. Regrettably no footage of Attorney Jeff Frazier, who has helped drive the narrative of forfeiture and drug task force abuse. Jeff was has played a critical role at Komorn Law and has helped frame this issue. We at Komorn Law feel fortunate to have been involved in this important issue that has plagued the State of Michigan. Everyone involved with the production of the show was awesome, they truly are a professional operation. It was interesting to learn, speaking with the crew, that so many of the issues frequently discussed in Michigan regarding medical marihuana and recreational marihuana, they were covering this year for season 2. Also, I have to say that Krishna is one of the most fascinating people I have encountered in recent years; he has a wide range of knowledge both nationally and internationally about these issues and is very talented at telling the story.   Everyone who participated or was involved in the planning and preparation had to give up a lot of time and make themselves available for the Vice filming schedule, and I wanted to thank all of you for your efforts. This includes specifically all of you whose stories were more than media worthy but were not included in final edits. Let us hope the Vice story helps get the word out of the atrocities that are occurring right here in Michigan, and hopefully builds some momentum to effectuate some positive change surrounding the current state of Michigan forfeiture laws and the inherent problems associated with arresting for profit.   #StopTheRaids #TeamShattuck #Team Hency #SteveMiller #LEAP #PaulWilliams #JeffFrazier #ChadCarr #JoshColton

Michael Komorn

Michael Komorn

 

Why Marijuana Charges Against Patients/caregivers Are Not Brought Under The Mmma

The reason that criminal charges alleging violations of the public health code (delivery of marihuana, possession with the intent to deliver marihuana, and manufacturing (growing) marihuana), are brought in these cases instead of violations of the MMMA, is that there are very few options or similar types of criminal charges available under the MMMA. The MMMA does not have any defined penalties, and as a few courts have ruled, a violation of the MMMA, is not a crime, instead it results in the patient or caregiver losing their “immunity” from arrest. So the MMMA does not state, if you have 13 plants when you can only have 12, you will be charged with a 1-year misdemeanor or a civil infraction resulting in a fine. There are only two specifically mentioned penalties within the MMMA which could be applied to a patient or their caregiver, which are:   SECTION 7(d): Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.   I have never encountered a case where someone was charged with this violation. The Courts have interpreted the interplay of the MMMA and the existing Public Health code using the following reasoning: marihuana or medical marihuana is not legal as a result of the MMMA. Instead, the MMMA carved out limited exemptions or immunity for behavior that would otherwise be illegal or arrestable (the delivery of marihuana, possession with the intent to deliver marihuana, and manufacturing marihuana). In other words, the delivery of marihuana, possession with the intent to deliver marihuana and manufacturing marihuana are violations of the Public Health Code and only if the patient and or the caregiver is acting within the specific limitations (set forth in the immunity section of the act-Patients can possess no more than 2.5 ounces of usable marihuana and grow not more than 12 plants; Caregivers may possess the same for each patient they are caregiving for, with a limitation of not more than 5 patients) are they immune from this prosecution under the Public Health Code. There is only one crime created within the MMMA that I have ever seen a person charged for instead of the more common use of the Public Health Code.   Section 4(k): Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.   Other than the two specific statutory references above, the MMMA is silent as to punishment or penalty should a patient or caregiver find themselves (through the eyes of the law enforcement officers) outside the limitations of section 4 immunity (registry card protection).   333.26424 4. Protections for the Medical Use of Marihuana.   Sec. 4. (a) 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 marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana 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. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.   333.26424 4. Protections for the Medical Use of Marihuana.   Sec. 4.(b) A primary caregiver 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 assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:   (1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and   (2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and   (3) any incidental amount of seeds, stalks, and unusable roots.     Another way to look at this would be that what the voter initiative MMMA is designed to protect persons from are arrests, prosecution and penalties of any kind or at least provide an affirmative defense to any charges involving marihuana. MCL 333.26428   The language on the ballot, the statute as written and read, and the interpretations of the Michigan Supreme Court of the statute all identify its purpose and intention to protect not punish people, generally speaking. There is an abundance of language throughout the MMMA supporting this principle, such as the fact that the medical marijuana patient/caregiver card can’t be used as probable cause of a crime or to search.   333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency).   The most overlooked of which is in the preamble section; 333.26422 Findings, declaration.   Sec. 2. The people of the State of Michigan find and declare that:   (a) Modern medical research, including as found by the National Academy of Sciences' Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions.   (b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.   This section of the MMMA clearly sets out the intent of the drafters of the law as wanting to try and significantly decrease the amount of arresting and prosecution for marijuana crimes, specifically protecting those who use marijuana for medical purposes.   Another good example confirming that a violation of the MMMA is not a crime per se, is the case of People v Lois Butler-Jackson.   In this case the two defendants were charged with conspiring to commit a legal act in an unlawful manner for failing to comply with   MCL 333.26242(f) (f) A physician 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 the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.   In Butler, the defendant argued that she could not be convicted of conspiracy to commit a legal act in an unlawful manner for failing to comply with MCL 333.26424(f) because such conduct is not illegal. In essence, defendant is arguing on appeal, and argued in the trial court, that the allegations set forth in the information did not constitute the crime of conspiracy to commit a legal act in an illegal manner. The Court of Appeals agreed.   “The Court held that “MCL 333.26424(f) does not prohibit physicians from issuing written certifications in the absence of a bona fide physician-patient, without conducting a full assessment of medical history, and when a “professional opinion” cannot be formulated. That is, this statute does not define any prohibited conduct, does not characterize any such conduct as constituting either a misdemeanor or felony, and does not provide for any punishment.” The conspiracy conviction of the defendant is vacated.   So one could conclude that the protective nature of the MMMA, as it was intended, is not a path for Law Enforcement to profit from charging those limited violations, and the Courts' interpretation of the act has analyzed it in such a way that the public health code is the only viable option to penalize persons who may be in a technical violation of section 4. Also I believe it is probably in law enforcement's best interest to stay away from alleging conceptual violations of the MMMA as crimes, because the act provides protections from not just arrests and prosecution but penalty of any kind, meaning forfeiture proceeds.   There is no forfeiture if the behavior falls within the purview of the MMMA section 4 or the affirmative defense, it is only via public health code violations that the forfeiture statute has its teeth.   We got a dismissal for the co-defendant in Shattuck case, Ginnifer Hency, where she allegedly went into the dispensary with the intentions of transferring 6 ounces of cannabis with someone because her patient wanted that particular strain for the patients serious and debilitating condition. Even though we disagreed with these facts, the Court found that this behavior, albeit not in strict compliance with the MMMA, was in fact de minimus, and thus not worthy or justifiable of criminal prosecution under the public health code. This is the only time a Court even contemplated such an option, but it really is a reasonable way to analyze some of these cases as non-criminal situations.   So that is the reason why there are not prosecutions pursuant to the MMMA, and instead charges are brought pursuant to the Public Health Code.

Michael Komorn

Michael Komorn

 

The Path To Amnesty For Persons Investigated, Arrested, Prosecuted, Convicted For Marihuana Charges, Related To Possessing Non-Plant Medical Marihuana

What Happened?   On Tuesday September 22, 2016 Governor Rick Snyder signed into law several new bills allowing a state wide regulated licensing scheme for the Medical Marihuana Industry (House Bill 4209 – The Medical Marihuana Facilities Licensing Act). Unlike The Michigan Medical Marihuana Licensing Act, which created a new law, House Bill 4210 amended the Michigan Medical Marihuana Act. The MMMA was specifically amended by changing the title and sections 3, 4, 6, and 7 (MCL 333.26423, 333.26424, 333.26426, and 333.26427), sections 3 and 4 as amended by 2012 PA 512 and section 6 as amended by 2012 PA 514, and by adding sections 4a and 4b.   When House Bill 4210 was signed into law, the most significant and important aspect of the new legislation was the amendatory language included within the amendments. Specifically, the amendments included the following language:   " This amendatory act clarifies ambiguities in the law in accordance with the original intent of the people, as expressed in section 2(b) of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26422: This amendatory act is curative and applies retroactively as to the following: clarifying the quantities and forms of marihuana for which a person is protected from arrest, precluding an interpretation of “weight” as aggregate weight, and excluding an added inactive substrate component of a preparation in determining the amount of marihuana, medical marihuana, or usable marihuana that constitutes an offense. Retroactive application of this amendatory act does not create a cause of action against a law enforcement officer or any other state or local governmental officer, employee, department, or agency that enforced this act under a good-faith interpretation of its provisions at the time of enforcement."   Do the New Amendments to the MMMA Help or Hurt Patients and Caregivers?   Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law. Enacting section 2. This amendatory act clarifies ambiguities in the law in accordance with the original intent of the people, as expressed in section 2(b) of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26422: “(b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana. ”. [Emphasis added.]   In November of 2008, 63% of Michigan voters overwhelmingly passed the Voter Initiative Proposition 1, acknowledging that cannabis is medicine, and that physicians, patients, and their caregivers would be protected from arrest prosecution and penalty of any kind. In the history of Michigan elections, the 3.3 million votes cast approving Michigan’s Medical Marihuana Voter Initiative was the most votes in the history of Michigan elections. An often overlooked and never quoted or cited, in any Michigan Court of Appeal or Michigan Supreme Court cases, are the following passage from the MMMA   The people of the State of Michigan find and declare that:   1. Cannabis is, in fact, Medicine.   (a) Modern medical research, including as found by the National Academy of Sciences' Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions. 333.26422(a)   Similar to Michigan, at least 24 other states1 and Washington, DC have passed medical marihuana laws, however pursuant to federal law it remains illegal, a schedule 1 drug, making it challenging for research within the United States. Despite its federal classification there has been an enormous amount of medical research regarding medical cannabis.   2. Persons engaging in the Medical Use of Marihuana, specifically those defined as Patients and Caregivers, should be protected from criminal prosecutions.   (b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana. 333.26422(b)   3. The intent of the MMMA was explicitly for the health and welfare of Michigan Citizens and not for police and government profit.   © Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. The laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health and welfare of its citizens. 333.26422©   The above reference language in the MMMA is found in the Findings and Declarations section MCL 333.26242 (a-c).   This declared that the intent of the MMMA was explicitly for the health, benefit, and welfare of Michigan citizens and not for police and government profit!   ​In addition to the 2008 Michigan Medical Marihuana Act, Michigan voters have approved proposals for the legalization or decriminalization of marijuana in 21 Michigan cities since 2011. (Initiatives to decriminalize marijuana have been approved in 15 communities: Detroit, Grand Rapids, Lansing, Flint, Kalamazoo, Saginaw, Port Huron, East Lansing, Mount Pleasant, Ypsilanti, Berkeley, Hazel Park, Huntington Woods, Oak Park, and Pleasant Ridge. Since 2009, only a handful of ballot proposals were voted down in six communities: Frankfort, Clare, Harrison, Lapeer, Onaway, and Montrose.)   Since the MMMA was enacted continued overwhelming support for the legalizing or decriminalizing of marihuana has continued throughout the state, particularly at the local level.   Why Did the Legislature Amend the MMMA?   Why am I talking about the Findings and Declarations Section of the MMMA MCL 333.26242 (a-c)?   These facts are important when trying to understand the most recent Michigan State Police Data that indicates arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police.   Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent. Despite these facts arrests for marijuana possession or use went up 17% between 2008 and 2014, according to data from the Michigan State Police.   Since 2008, marihuana arrest in Michigan have risen 17%. The Michigan State Police have reported consistently since 2012 forfeiture proceeds in the amount of 24-26 million dollars per year. (See 2015 Michigan State Police Asset Forfeiture Report)   The former director of the Michigan State Police Forensic Science Division – Gregoire Michaud has stated publicly that the forensic lab spends 40 percent of its resources testing marihuana, and that is the reason that they have been unable to catch up on the backlog of evidence rape kits.   Additional disturbing trends from the Michigan State Police’s Data as reflected in a recent article from station 9 & 10's where Blayke Roznowski and photojournalist Noah Jurik talked to prosecutors and the states representative who authored the Bills and asked specifically how local law enforcement are reacting to the changes and how they'll handle medical marijuana now.   How Will Police And Prosecutors Handle It Going Forward?   This is what they said:   "Hopefully, there are some clarifications there," Cheboygan County prosecutor Daryl Vizina said.   Police and courts are determining how they go forward after years of confusion over the Michigan Medical Marijuana Act.   "We had a lot of people assuming they knew what the law was," Vizina said. "They didn't, the prosecutors didn't, law enforcement didn't. It's been a mess in a way."   Michigan State Police say they are working with the Department of Licensing and Regulatory Affairs and prosecutors to make sure they understand the law and enforce them properly.   It's something the sponsor of one of the bills, state representative Mike Callton, says will make enforcement easier.   "Let's say policeman pulls a person over and they have a medicine container in their car. Well, it's got a bar code or scantron on it and police can determine from that scantron, where it's been grown, who transported it, where it was tested, where it was refined, if it was refined and where they bought it and that this is, indeed, the medicine for this patient," Callton said.   Prosecutors like Daryl Vizina in Cheboygan County hope the laws will be more clear to people in the medical marijuana community.   "It's just kind of been a learning process where charges get charged, maybe somebody gets prosecuted, maybe later down the line a higher court overturns the conviction," Vizina said.   Really???   Also but directly relevant to this rant, the journalist also captured the following quotes.   In the long run, lawmakers think the new laws will eliminate doubt, and increase safety when it comes to medical marijuana.   "We needed a way for patients to get this kind of medicine without having to buy it from somebody named Rick in the back alley," Callton said. "There had to be a legitimate way for people to buy this."   Law Enforcement React to New Medical Marijuana Laws   It is unequivocal that in 2008, Michigan voters declared that marihuana is medicine, persons engaging in the medical use of marihuana should be protected from criminal prosecutions, and the intent of the MMMA was explicitly for the benefit of the health and welfare of Michigan citizens and not for police and government profit. It is often hard to understand how a law that received more than 50% vote in all 83 counties in Michigan could have been so poorly misinterpreted and implemented. To the extent that one believes that the intention of the MMMA was to provide a shield for patients and caregivers, it is hard to reconcile the overwhelming evidence (from the Michigan State Police data). Very little of the voters’ intention was honored. Instead, the Law Enforcement Community has utilized the MMMA as a sword, resulting in a string of 8 years of success defined by the increase of marihuana arrests and consistent profits from forfeiture proceeds.   The bills signed into law by the Governor create a state-wide regulated licensing scheme for the Medical Marihuana Industry, and also include amendments to the MMMA. However, listening to how the Law Enforcement Community reacted to this news gives some insight into how the Law Enforcement Community has been able to get away with its treatment of patients and caregivers for the last 8 years. As so articulated by Michigan State Police and the Cheboygan County prosecutor Daryl Vizina, (who claims to be speaking on behalf of all prosecutors and all law enforcement), ignorance of the law shall be their excuse.   Michigan State Police say they are working with the Department of Licensing and Regulatory Affairs and prosecutors to make sure they understand the law and enforce them properly.   "Hopefully, there are some clarifications there." “Police and courts are determining how they go forward after years of confusion over the Michigan Medical Marijuana Act.” "We had a lot of people assuming they knew what the law was," Vizina said. "They didn't, the prosecutors didn't, law enforcement didn't. It's been a mess in a way." Prosecutors like Daryl Vizina in Cheboygan County hope the laws will be more clear to people in the medical marijuana community. "It's just kind of been a learning process where charges get charged, maybe somebody gets prosecuted, maybe later down the line a higher court overturns the conviction," Vizina said.   The above quotes from those within the law enforcement community should bring shame to them personally, but most importantly their profession. For starters, never has the Michigan State Police previously made a public statement that they are trying to learn about the MMMA, the medical use of marihuana or even how they as law enforcement officer shall enforce issues surrounding “usable marihuana.” To see them quoted 8 years after the enactment of the MMMA, that they are NOW going to make sure they understand the law and enforce them properly, sounds more like an apology for not previously understanding the law and previously properly enforcing it.   But the quotes by the Cheboygan County prosecutor Daryl Vizina, (who claims to be speaking on behalf of all prosecutors and all law enforcement), is truly amazing. As a lawyer, I interpret his quotes as a confession to crimes he and others in the law enforcement community committed against the Medical Marihuana Community. In my opinion you cannot do these things without saying that you have violated your duty as a prosecutor. As a lawyer, I would have advised him to take the fifth.   But let’s look at and think about what he is actually saying. His statement that "We had a lot of people assuming they knew what the law was." "They didn't, the prosecutors didn't, law enforcement didn't. It's been a mess in a way." To state he personally didn’t know the law but prosecuted others for violating the same law is the definition of a “due process violation.” His statement, objectively interpreted, means that he expected those he was prosecuting to have a greater grasp and knowledge of the MMMA than himself, the elected County Prosecutor. To publicly state that not knowing or understanding the law has been allowed to be the guiding force for prosecutions is an expression of failure and an admission of ignorance. It reflects a lack of integrity, honesty and the requisite duty of fairness in any prosecution. The duty of a prosecutor is not to win at any cost, or even try to win, if the law is unclear to them and the police. Prosecutors as judicial officers have a duty to the accused as well, and that is to ensure the protection of the accused’s constitutional rights. This is fundamental. This is the obligation of the prosecutor in any case that it chooses to prosecute. Often overlooked and seemingly forgotten in the modern justice system is the State’s moral and ethical obligation to ensure a fair trial for the accused. Failing to do this is the definition of an unequal and uneven playing field. But this is how it has been. If you don't believe me, examine the recent amendments to the MMMA.   What do the Amendments Say?   I have to say that most persons who read the amendments will see only the words, and not really understand in depth, in the minutia, what they really say. You have to look closely, and I would not rely upon the traditional statutory rules of interpretation, and the plain meaning of the words “rules” of interpretation. You have to abandon that principle of interpretation to see what I see.   These amendments by the Legislature have confirmed that the State has erred for the last 8 years. Expungements will be granted due to House Bill 4210. The Legislature’s recent amendments to the MMMA acknowledge for the first time the declarations section of the MMMA. The Legislature acknowledges the intention of the MMMA has always been to change state law to practically effect and protect from arrest the vast majority of seriously ill people who have a medical need to use marihuana. In doing so, the Legislature has provided relief for those persons who have been wrongly prosecuted and persecuted by the State for its failure to acknowledge the protections intended for patients and their caregivers.   The amendments to the MMMA unequivocally clarify and make legal the possession of non-plant material marihuana. The Carruthers holding is ultimately overruled and no longer applies to Michigan patients and caregivers.   The amendments specifically authorize the possession of non-plant material marihuana. The uncertainty associated with the possession of non-plant material marihuana is no longer, and patients, caregivers, and the parents of juvenile patients can rest with the peace of mind that they are no longer at risk.   The specific Amendments say:   Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall IS 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 marihuana that does not exceed A COMBINED TOTAL OF 2.5 ounces of usable marihuana AND USABLE MARIHUANA EQUIVALENTS, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana 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. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient. [/i] (b) A primary caregiver who has been issued and possesses a registry identification card shall IS 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 assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses an amount of marihuana IN FORMS AND AMOUNTS that does DO not exceed ANY OF THE FOLLOWING: (1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process, ; and A COMBINED TOTAL OF 2.5 OUNCES OF USABLE MARIHUANA AND USABLE MARIHUANA EQUIVALENTS. (2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility, ; and (3) any ANY incidental amount of seeds, stalks, and unusable roots. © FOR PURPOSES OF DETERMINING USABLE MARIHUANA EQUIVALENCY, THE FOLLOWING SHALL BE CONSIDERED EQUIVALENT TO 1 OUNCE OF USABLE MARIHUANA. (1) 16 OUNCES OF MARIHUANA-INFUSED PRODUCT IF IN A SOLID FORM. (2) 7 GRAMS OF MARIHUANA-INFUSED PRODUCT IF IN A GASEOUS FORM. (3) 36 FLUID OUNCES OF MARIHUANA-INFUSED PRODUCT IF IN A LIQUID FORM. … (M) A PERSON 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 MANUFACTURING A MARIHUANA-INFUSED PRODUCT IF THE PERSON IS ANY OF THE FOLLOWING: (1) A REGISTERED QUALIFYING PATIENT, MANUFACTURING FOR HIS OR HER OWN PERSONAL USE. (2) A REGISTERED PRIMARY CAREGIVER, MANUFACTURING FOR THE USE OF A PATIENT TO WHOM HE OR SHE IS CONNECTED THROUGH THE DEPARTMENT'S REGISTRATION PROCESS. (N) A QUALIFYING PATIENT SHALL NOT TRANSFER A MARIHUANA-INFUSED PRODUCT OR MARIHUANA TO ANY INDIVIDUAL. (O) A PRIMARY CAREGIVER SHALL NOT TRANSFER A MARIHUANA-INFUSED PRODUCT TO ANY INDIVIDUAL WHO IS NOT A QUALIFYING PATIENT TO WHOM HE OR SHE IS CONNECTED THROUGH THE DEPARTMENT'S REGISTRATION PROCESS. SEC. 4A. (1) THIS SECTION DOES NOT APPLY UNLESS THE MEDICAL MARIHUANA FACILITIES LICENSING ACT IS ENACTED. (2) A REGISTERED QUALIFYING PATIENT OR REGISTERED PRIMARY CAREGIVER 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 ANY OF THE FOLLOWING: (A) TRANSFERRING OR PURCHASING MARIHUANA IN AN AMOUNT AUTHORIZED BY THIS ACT FROM A PROVISIONING CENTER LICENSED UNDER THE MEDICAL MARIHUANA FACILITIES LICENSING ACT. (B) TRANSFERRING OR SELLING MARIHUANA SEEDS OR SEEDLINGS TO A GROWER LICENSED UNDER THE MEDICAL MARIHUANA FACILITIES LICENSING ACT. © TRANSFERRING MARIHUANA FOR TESTING TO AND FROM A SAFETY COMPLIANCE FACILITY LICENSED UNDER THE MEDICAL MARIHUANA FACILITIES LICENSING ACT. SEC. 4B. (1) EXCEPT AS PROVIDED IN SUBSECTIONS (2) TO (4), A QUALIFYING PATIENT OR PRIMARY CAREGIVER SHALL NOT TRANSPORT OR POSSESS A MARIHUANA-INFUSED PRODUCT IN OR UPON A MOTOR VEHICLE. (2) THIS SECTION DOES NOT PROHIBIT A QUALIFYING PATIENT FROM TRANSPORTING OR POSSESSING A MARIHUANA-INFUSED PRODUCT IN OR UPON A MOTOR VEHICLE IF THE MARIHUANA-INFUSED PRODUCT IS IN A SEALED AND LABELED PACKAGE THAT IS CARRIED IN THE TRUNK OF THE VEHICLE OR, IF THE VEHICLE DOES NOT HAVE A TRUNK, IS CARRIED SO AS NOT TO BE READILY ACCESSIBLE FROM THE INTERIOR OF THE VEHICLE. THE LABEL MUST STATE THE WEIGHT OF THE MARIHUANA-INFUSED PRODUCT IN OUNCES, NAME OF THE MANUFACTURER, DATE OF MANUFACTURE, NAME OF THE PERSON FROM WHOM THE MARIHUANA-INFUSED PRODUCT WAS RECEIVED, AND DATE OF RECEIPT. (3) THIS SECTION DOES NOT PROHIBIT A PRIMARY CAREGIVER FROM TRANSPORTING OR POSSESSING A MARIHUANA-INFUSED PRODUCT IN OR UPON A MOTOR VEHICLE IF THE MARIHUANA-INFUSED PRODUCT IS ACCOMPANIED BY AN ACCURATE MARIHUANA TRANSPORTATION MANIFEST AND ENCLOSED IN A CASE CARRIED IN THE TRUNK OF THE VEHICLE OR, IF THE VEHICLE DOES NOT HAVE A TRUNK, IS ENCLOSED IN A CASE AND CARRIED SO AS NOT TO BE READILY ACCESSIBLE FROM THE INTERIOR OF THE VEHICLE. THE MANIFEST FORM MUST STATE THE WEIGHT OF EACH MARIHUANA-INFUSED PRODUCT IN OUNCES, NAME AND ADDRESS OF THE MANUFACTURER, DATE OF MANUFACTURE, DESTINATION NAME AND ADDRESS, DATE AND TIME OF DEPARTURE, ESTIMATED DATE AND TIME OF ARRIVAL, AND, IF APPLICABLE, NAME AND ADDRESS OF THE PERSON FROM WHOM THE PRODUCT WAS RECEIVED AND DATE OF RECEIPT. (4) THIS SECTION DOES NOT PROHIBIT A PRIMARY CAREGIVER FROM TRANSPORTING OR POSSESSING A MARIHUANA-INFUSED PRODUCT IN OR UPON A MOTOR VEHICLE FOR THE USE OF HIS OR HER CHILD, SPOUSE, OR PARENT WHO IS A QUALIFYING PATIENT IF THE MARIHUANA-INFUSED PRODUCT IS IN A SEALED AND LABELED PACKAGE THAT IS CARRIED IN THE TRUNK OF THE VEHICLE OR, IF THE VEHICLE DOES NOT HAVE A TRUNK, IS CARRIED SO AS NOT TO BE READILY ACCESSIBLE FROM THE INTERIOR OF THE VEHICLE. THE LABEL MUST STATE THE WEIGHT OF THE MARIHUANA-INFUSED PRODUCT IN OUNCES, NAME OF THE MANUFACTURER, DATE OF MANUFACTURE, NAME OF THE QUALIFYING PATIENT, AND, IF APPLICABLE, NAME OF THE PERSON FROM WHOM THE MARIHUANA-INFUSED PRODUCT WAS RECEIVED AND DATE OF RECEIPT. (5) FOR PURPOSES OF DETERMINING COMPLIANCE WITH QUANTITY LIMITATIONS UNDER SECTION 4, THERE IS A REBUTTABLE PRESUMPTION THAT THE WEIGHT OF A MARIHUANA-INFUSED PRODUCT LISTED ON ITS PACKAGE LABEL OR ON A MARIHUANA TRANSPORTATION MANIFEST IS ACCURATE. (6) A QUALIFYING PATIENT OR PRIMARY CAREGIVER WHO VIOLATES THIS SECTION IS RESPONSIBLE FOR A CIVIL FINE OF NOT MORE THAN $250.00.   WHO DOES IT APPLY TO?   The new amendments to the MMMA pursuant to House Bill 4210 apply retroactively and are intended to be curative.   The new amendments create an opportunity to bring relief to those persons who have been wrongly accused of possessing non-plant material marihuana.   The new amendments create an opportunity to revisit and correct the situation where the probable cause of a crime in any investigation of patients and caregivers was illegally continued or escalated because the subject matter of the investigation was the non-plant material marihuana. It is important to understand the large number of scenarios where an investigation was continued or escalated because the material or substance associated with the investigation was "contraband" or non-plant material marihuana. If this happened to you, you were right to believe that it was wrong. If this happened to you, the police, the prosecutor and the state were wrong. If this happened to you, you very likely have a remedy to right this wrong.   These situations may entitle you to relief:   · As a patient or caregiver, charges were brought against you for possession of any form of marijuana edible or marijuana concentrate. · As a patient or caregiver, charges were escalated when the investigating agents discovered “contraband” or non-plant material marihuana. · As a patient or caregiver, you have been the victim of a civil forfeiture that was based on the investigating agents discovering “contraband” or non-plant material marihuana.   The new amendments are more than clear in what mistakes it intends to fix and to which individuals may benefit from this correction. The state admits and acknowledges that the MMMA contained ambiguities that needed clarifying, because the current state of the interpretation of the law had failed to express the original intent of the MMMA. "Changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.” The amendatory language of the MMMA provides an opportunity to set aside a prior conviction or revisit a prior case that is over, and reopen the case to litigate the states admitted errors. Legislatively enacted laws or amendments usually never apply retroactively unless the amended language contains an explicit reference to a retroactive application, as the amendments contained in House Bill 4210 do. This is a very unique opportunity that does not happen often, and persons who have been affected by the State’s admitted errors now have a potential path to right the wrong.   HOW DO I SEEK RELIEF?   As a general rule, the ability to set aside a conviction has limitations, and Courts are in the business of closing cases, not opening them. Expungement, albeit expanded by law in 2015, and Motions to Set Aside Convictions MCR 6.500, based upon constitutional or statutory ground are generally denied, however the amendments to the MMMA via House Bill 4210 create an entirely new statutory method to seek relief from conviction, and penalty.   If you or a loved one meets the criteria described above, and if you believe you have been a victim of the States admitted errors, or your case or conviction resulted from the irrational interpretation that non-plant material marihuana is not usable marihuana, Call Komorn Law, 1-800-656-3557. We are currently offering Legal Services evaluating your case, and advising clients of potential remedies and or legal strategies to clearing your record from marihuana related conviction.   Even if you have not had this happen to you, listen and enjoy while I present evidence that what I am saying is true. Today I got a call from fellow brother counsel, Bernie Jocuns, who had a medible candy case, which he had litigated to the point of being granted a Daubert hearing to challenge the scientific method of reporting the non-plant material candies. After the amendments, we discussed the impact of the amendments to his case, and a letter was drafted sent to the Prosecutor highlighting the significance of the curative and retroactive language, and sure enough Bernie Jocuns and his client immediately received a nolle pros. And for those of you that don’t speak Latin, that means a dismissal. And for anyone who wants to fight back, I have a file drawer of paper to start undoing the State’s error and making things right for the medical marihuana community.   1. Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington

Michael Komorn

Michael Komorn

 

Felony Expungements Will Be Granted Due To Hb 4210

This article details amendments to the MMMA signed into law on September 21, 2016 which are retroactive. If you were convicted of any crime due to the possession, delivery, or manufacture of cannabis oil or any cannabis-infused product, contact us to see how the new amendments affect you.   Over the past 8 years Komorn Law has vigorously represented medical marihuana patients and caregivers accused of violating the law. On July 11, 2013 the Michigan Court of Appeals in the matter of People v Carruthers delivered one of the worst opinions ever issued by any court anywhere. It was the worst opinion ever, not because I simply disagreed with it. It was the worst opinion ever because it was literally hard to read, painful to read, and difficult to comprehend. Difficult to comprehend in this context means that the opinion was not logical and ignored or failed to rely on principles of reason in coming to its conclusions.   The principles of logic that were ignored or in error in Carruthers can be summed up in the following list: Section 4, the immunity section of the MMMA that protects patients and caregivers from arrest, includes only plant material marihuana.
Section 4 specifically precludes non plant material such as medibles, hash, oils, wax, shatter and dabs.
The MMMA Voter Initiative intended for all patients to only ingest cannabis from smoking.
Despite a lot of text in the MMMA regarding non-adult medical marihuana patients, those particular patients must smoke marihuana, either by joint, bowl, dab or bong.
The ingestion of non-plant material is unusable marihuana because none of the "non- plant material" ingestible cannabis products are named in the usable marihuana definition.
Even though smoking is not mentioned in the usable marihuana definition, unlike medibles (or non-plant material), smoking marihuana is considered usable marihuana.
The lab report in Carruthers, just like all lab reports produced by either the Michigan State Crime Lab Forensic Science Division or the Oakland County Lab, report "non-plant material marihuana" as delta-9-tetrahydrocannabinol schedule 1 (a felony).
That each of these so called "accredited" institutions have been falsely reporting that the "non-plant" marihuana material or substances that they have been testing is not marihuana.
That despite evidence within the laboratory’s own data, overwhelming evidence exists in each of the samples that the non-plant marihuana material is marihuana.
The conclusions reached in the Carruthers case, of course, make no sense and reflect unequivocally that patients and caregivers have been wrongly affected by the above mentioned treatment and legal interpretations. Many clients who have hired Komorn law over the past years have witnessed our firm fight back for patients and caregivers who found themselves in the throes of the Carruthers interpretations. During this time our clients experienced and witnessed our strategy in responding to the Carruthers interpretation. For many, the Courts embraced Carruthers and denied motions to dismiss based upon Section 4 immunity. In those situations, we were forced to present our section 8 defense, requiring presenting evidence of debilitating conditions, bona fide physician patient relationship, medical use and why the amount of marihuana at issue was not more than the reasonable amount necessary to treat the patient’s debilitating condition. For many of our clients, we were able to prevail, fight back and establish that the alleged culpable behavior was in fact medical use.   Unfortunately, not all patients were given the same advice or counsel. The impact of Carruthers on the medical cannabis community has had a devastating effect.   One of the groups of patients specifically identified as a protected class of individuals pursuant to the MMMA that the Carruthers decision impacted the most were the juvenile medical marihuana patients.   We cannot forget all the parents of those children who feared that the simple possession of non-plant material would result in losing their immunity pursuant to Section 4. One can only imagine the thoughts and concerns going through the minds of these parents as they were forced to make decision of providing cannabis to their child that they knew worked and stopped seizures or spend the night at the emergency room at the local hospital.   The Carruthers decision and its illogical rationale, as applied, impacted the protection afforded to those parents from, arrest, prosecution, and specifically Child Protective Services penalties. As applied, the Carruthers holding had the impact of precluding immunity from arrest, prosecution, or penalty of any kind for these parents. The Carruthers holding was interpreted to mean that only if the patient child or parent caregiver is in unambiguous compliance with section 4, shall immunity apply and the non-plant material marihuana per Carruthers did not fall within that category. Said another way, after 8 years of litigation the patient children and their caregiver parents both lose.   Putting aside these horrific stories for a moment, there still remain many other situations where patients and caregivers who were engaging in the medical use of marihuana yet were still arrested, prosecuted, or had their medicine or property seized for the medical use of marihuana. The Carruthers Court of Appeals holding, whether intended or not, paved the way for the Law Enforcement Community to deem non-plant material marihuana as unusable marihuana, and therefore not protected by Section 4. Ultimately the Carruthers interpretation by the Law Enforcement Community resulted in the creation of crimes associated with the medical use of marihuana for the possession of marihuana of non-plant material marihuana, which at the time was deemed unusable marihuana.   Many patients and caregivers have fallen victim to this Kafkaesque interpretation of the MMMA. Since the Carruthers holding in 2013, the mere possession of marihuana intended to be ingested by means other than smoking became contraband. Patients and caregivers were arrested, prosecuted and the full force and effect of penalty of any kind was imposed upon them. For many of these situations the accused patient or caregiver was only in possession of non-plant material medical marihuana. Patients and caregivers with and without competent counsel were told they were guilty of crimes for possessing medicine recommended by their physicians, merely because it was their choice to ingest the medicine in a manner other than smoking.   The impact of a guilty plea, conviction or a criminal record for a schedule 1 controlled substance, often times abstracted as possession of a dangerous drug, can be devastating and it goes without saying that it impedes opportunities for work, school, housing, to possess firearms, vote and the ability to secure loans. The carnage from the Carruthers case can be felt across the state of Michigan in the homes of patients and caregivers. It has been well documented that Komorn Law intended to right this wrong. (See Komorn Law’s Federal Law Suit).   For those that are not aware, Komorn Law has been representing Mr. Carruthers since his case was remanded from the Court of Appeals back to the trial Court. Those proceedings resulted in an evidentiary hearing wherein we were able to establish the necessary evidence to present a medical marihuana affirmative defense. Additionally, we challenged the competency of the laboratory report, which reported that the Carruthers's marihuana brownies were not marihuana but instead delta-9-tetrahydrocannabinol (not marihuana).   The State appealed the trial Court’s finding in our favor, and the Court of Appeals affirmed all the trial Court’s findings in our favor. The Carruthers matter is currently before the Michigan Supreme Court, which is where it has remained since April 7, 2016.   In the meantime, on or about September 21, 2016 the Governor of the State of Michigan signed into law Public Act 283 of 2016, formerly House Bill 4210.   If you were convicted of any crime due to the possession, delivery, or manufacture of cannabis oil or any cannabis-infused product, contact us to see how the new amendments affect you.   The title and purpose of the amendments:   Section 3 amendments:   Section 4 amendments:   Section 6 amendments:   Section 7 amendments:   The Retroactive effect of 4210:

Michael Komorn

Michael Komorn

 

Komorn Law And Mmma File Class-Action Suit Against Msp And Oakland Sheriff

In the Federal Eastern District Court yesterday, Komorn Law and the MMMA filed a class action lawsuit on behalf of all medical marijuana patients and their caregivers who depend on the medical use of cannabis oil or products infused with marijuana, such as edible preparations. The lawsuit seeks to enjoin the Michigan State Police and Oakland County Sheriff’s Forensic Laboratories from creating reports falsely stating that medical marijuana preparations are a synthetic schedule 1 drug, with no medical use. The lawsuit also asks the Court to appoint a crime lab monitor to ensure that a scientific standard is applied at the labs for marijuana and its preparations.   The class is represented by four plaintiffs, each one a previous defendant to criminal charges and asset forfeiture for possession of medical marijuana preparations.   The named defendants of the lawsuit are Col. Kriste Kibbey Etue, Director of the Michigan State Police, Inspector Scott Marier, Interim Director of the Michigan State Police Forensic Science Division, Capt. Joe Quisenberry, Commanding Officer of the Forensic Services Laboratory for Oakland County, and Michael Bouchard, Sheriff of Oakland County, Michigan.   Read the lawsuit and see the exhibits here: http://michiganmedicalmarijuana.org/uploads/Lorincz%20Federal%20Complaint%20and%20Exhibits.pdf   FOX17 Coverage w/video: http://fox17online.com/2016/06/22/attorneys-file-federal-class-action-lawsuit-against-msp-crime-labs-over-marijuana-reporting-policy/

Michael Komorn

Michael Komorn

 

Verdict......

The verdict has been made as I sit at the councils table. She struggles to open the sealed envelope and starts the verbiage used to describe it. NOT GUILTY, Dan pats me on the back as I look to his side. I was poised and never overly excited,just content in the moment. The peace that was given beforehand, was enough to handle whatever the verdict would have been, but this is what I wanted. Now it's uplifted and removed, nice to say that I won't have to deal with it anymore. From Dan's expertise knowledge capability, this is only the third section 8 case to ever make it to trail, let alone win. Thanks for all the support, I plan on writing a book that will have the whole story; until then, always look up and be guided from the spirit within!

SirLongSmoke

SirLongSmoke

 

Really?

All over a plant that God intended us to use. Everything in moderation,then stereotypical view points are demolished. If marijuana was legal, it would squash the cotton industry, lumber industry and positively stimulate the economy. The love of greed,with the attribution of money, has created a pit of despair, that the wordly fall into. ALWAYS LOOK UP and be guided by the spirit!

SirLongSmoke

SirLongSmoke

 

No Trial, Yet Again.

The trial was cancelled and pushed back, like many times in the past. Dan and I do not know the reason why this has occurred. The trial is adjourned for another time in which we do not know exactly. They have to be waiting on me to mess up my bond because they know this is a losing case for them. I told Dan to tell the prosecuting attorney this:"I am ready to testify and all our witnesses as well, there will be no mistakes. We will win. It's best to end this now before I go public." If I didn't have my school job as I do, I would tell the world my story. I would get news networks and I will disclose all the impurities of this case and how unrighteous the judgements and handling of this has been. I cannot though because it would cause harm to the students I teach and the job in general. This would be viewed extremely negatively and wouldn't be good for the school system. So now we sit and wait for the indecency to finally come to an end, eventually.

SirLongSmoke

SirLongSmoke

 

Re-Visit

It is now coming to the end of March. I will finally have a trial and can use Medical marijuana as a defense. Dan and I will still have to prove the three aspects of the law as we did before, but this time, in front of a jury. This has been a long and treacherous ride, not only for me but for my family as well. I have been completely blessed still being able to work my school job and recently started a property management company. All has been well as I fit the niche that has been provided for me, by the lord. The court dates are scheduled for March 21-22. I have a couple patients willing to provide testament for the case, which will help the understanding to the jury. With a blessing from above of the right selection of jury, I feel we have a real chance of actually winning. Thanks for the support and all that has took place thus far!   James

SirLongSmoke

SirLongSmoke

 

Good Medical Marijuana/weeds,hemp Oil,hash Oils/ Chocolate

We grow them at our farm and sell to our customers directly. It means we can offer them at very good, dutch farm prices and we are sure of their quality. We got some GOOD MEDICAL marijuana/weeds,hemp oil,wax and their SEEDS such as Sour Diesel, Grand Daddy Purple,OG Kush, Sour Og Kush, Green Crack, Jack Dream, AK-47, Purple Kush, Bubba Kush, Bubblegum Kush,Blueberry,Purple-Skunk, Master Kush, Purple Haze,Banana Kush,pineapple express, Orange kush,Night Queen,Big Bud, Cheese, BlueDream, White Russia, White Widow, G13,hash oils and seeds etc,text me here with your order for fast delivery   AVAILABLE ALSO ARE.   }MDMA (Ecstasy or Molly){} }Crystal Meth//Ice{} }ADDERALL{} }NORCOS{} }XANAX{} }MDMA{} {LSD{} }Fentanyl patch{} }PERCOCET{} }Heroin//Tar{} }Oxycodone{} }Roxicodine{} }COCAINE{} }KETAMINE{} kcn cyanide po..ta...ss..i...u..m powder/pills   CONTACT wickr id ;......goodfaith wechat;..... goodfaith007 Telegram ;.... goodfaith007 email;........... maryfourtwenty@outlook.com   +1(470) 333-2934

goodfaith

goodfaith



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    • Exactly why I always put it in a gel capsule. You can't taste it.  It all goes to the same place at the same time, the stomach. Totally repeatable and controllable. No repeats because it tastes great and you gotta have some more.  There's no use for making cannabis into candy. That puts cannabis oil into a position to be used incorrectly and abused knowingly or unknowingly. It's a very bad thing for medicine and anything else you should be keeping away from children and/or adults that can't handle keeping their dosage straight and consistent.  We have all seen industries using bad packaging and misconstrued concoctions that invite trouble from everyone especially the opposition. Cannabis doesn't need to go there too but it has, regrettably. It's just plain ignorant at this point.   
    • Doesn't look like art to me. I guess you would have to have a better understanding of art than I do to see it. All I see is false advertising. Fakeness. I guess I see your point having said that. Art doesn't have to be real. It's art because it IS fake. This 'art' stuff is in the eye of the beholder and fake can be what it's all about. 
    • You're on a blog called "The Art of the Marijuana Industry". "Art" as in the graphic and packaging design trends within the industry. Hence the beginning of the sentence you addressed, "I've yet to find the designer...". Let me know if there's anything else I can help out with.
    • Chocolate is outstanding for covering the sometimes unpleasant taste of cannabis. It also allows you to let it slowly dissolve in your mouth making it easier to control how it effects you.
    • If ONE needs chocolate then eat it. It has nothing to do with medical cannabis as a whole.   
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