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Medical Marijuana Victory in Clarkston!

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Michael Komorn

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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.

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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.

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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.

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