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:
Do the New Amendments to the MMMA Help or Hurt Patients and Caregivers?
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.
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."
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:
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