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:
AN ACT to amend 2008 IL 1, entitled “An initiation of Legislation to allow under state law the medical use of marihuana; to provide protections for the medical use of marihuana; to provide for a system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for registry application and renewal; TO MAKE AN APPROPRIATION; to provide for the promulgation of rules; to provide for the administration of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for penalties for violations of this act,” by amending 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.
Section 3 amendments:
(F) "MARIHUANA-INFUSED PRODUCT" MEANS A TOPICAL FORMULATION, TINCTURE, BEVERAGE, EDIBLE SUBSTANCE, OR SIMILAR PRODUCT CONTAINING ANY USABLE MARIHUANA THAT IS INTENDED FOR HUMAN CONSUMPTION IN A MANNER OTHER THAN SMOKE INHALATION. MARIHUANA-INFUSED PRODUCT SHALL NOT BE CONSIDERED A FOOD FOR PURPOSES OF THE FOOD LAW, 2000 PA 92, MCL 289.1101 TO 289.8111.
(G) "MARIHUANA PLANT" MEANS ANY PLANT OF THE SPECIES CANNABIS SATIVA L.
(H) (f) "Medical use OF MARIHUANA" means the acquisition, possession, cultivation, manufacture, EXTRACTION, use, internal possession, delivery, transfer, or transportation of marihuana, MARIHUANA-INFUSED PRODUCTS, or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.
(J) "PLANT" MEANS ANY LIVING ORGANISM THAT PRODUCES ITS OWN FOOD THROUGH PHOTOSYNTHESIS AND HAS OBSERVABLE ROOT FORMATION OR IS IN GROWTH MATERIAL.
(N) (k) "Usable marihuana" means the dried leaves, and flowers, PLANT RESIN, OR EXTRACT of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.
(O) "USABLE MARIHUANA EQUIVALENT" MEANS THE AMOUNT OF USABLE MARIHUANA IN A MARIHUANA-INFUSED PRODUCT THAT IS CALCULATED AS PROVIDED IN SECTION 4©.
Section 4 amendments:
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.
(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..
Section 6 amendments:
(h) The following confidentiality rules shall apply:
(3) The department shall verify to law enforcement personnel AND TO THE NECESSARY DATABASE CREATED IN THE MARIHUANA TRACKING ACT AS ESTABLISHED BY THE MEDICAL MARIHUANA FACILITIES LICENSING ACT whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
(l) The Michigan medical marihuana REGISTRY fund is created within the state treasury. All fees collected under this act shall be deposited into the fund. The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earnings from fund investments. Money in the fund at the close of the fiscal year shall remain in the fund and shall not lapse to the general fund. The department of licensing and regulatory affairs shall be the administrator of the fund for auditing purposes. The department shall expend money from the fund, upon appropriation, for the operation and oversight of the Michigan medical marihuana program. FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2016, $8,500,000.00 IS APPROPRIATED FROM THE MARIHUANA REGISTRY FUND TO THE DEPARTMENT FOR ITS INITIAL COSTS OF IMPLEMENTING THE MEDICAL MARIHUANA FACILITIES LICENSING ACT AND THE MARIHUANA TRACKING ACT.
Section 7 amendments:
7. Scope of Act.
Sec. 7. (a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.
(b) This act shall DOES not permit any person to do any of the following:
(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
(2) Possess marihuana, or otherwise engage in the medical use of marihuana AT ANY OF THE FOLLOWING LOCATIONS:
(A) In a school bus.
(B) On the grounds of any preschool or primary or secondary school.
© In any correctional facility.
(3) Smoke marihuana AT ANY OF THE FOLLOWING LOCATIONS:
(A) On any form of public transportation.
(B) In any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, SNOWMOBILE, OFF-ROAD RECREATIONAL VEHICLE, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.
(6) SEPARATE PLANT RESIN FROM A MARIHUANA PLANT BY BUTANE EXTRACTION IN ANY PUBLIC PLACE OR MOTOR VEHICLE, OR INSIDE OR WITHIN THE CURTILAGE OF ANY RESIDENTIAL STRUCTURE.
(7) SEPARATE PLANT RESIN FROM A MARIHUANA PLANT BY BUTANE EXTRACTION IN A MANNER THAT DEMONSTRATES A FAILURE TO EXERCISE REASONABLE CARE OR RECKLESS DISREGARD FOR THE SAFETY OF OTHERS.
© Nothing in this act shall be construed to require ANY OF THE FOLLOWING:
(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.
(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 is punishable by a fine of $500.00, which shall be is 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.
(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.
The Retroactive effect of 4210:
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.]
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.