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  1. 8 points
    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
  2. 7 points
    The panel recommended that director Mike Zimmer add autism to the Act a couple of years ago, but he denied even after the panel approved 4-2. This is the second time we have run an autism petition. On this petition, the vote was 5-1, and we flipped one of the members that previously voted "no." I have a good feeling about the final determination.
  3. 7 points
    Wild Bill

    Changes

    I've been noticing that the topics here are a little more encouraging than they were a couple of years ago. I'm seeing more "caregiver looking for patient", "patient looking for caregiver" etc. than we used to have. I'm also noticing fewer posts about "legal and arrested", "assets forfeited" and "child taken from home". Things are looking up!
  4. 6 points
    Restorium2

    RSO-CBD-CBN oils

    Might as well give some anecdotal evidence; A person very close to me got addicted to opioids. Taking all kinds of those pills. His life was spiraling down and down, out of control. For years and years this went on as we watched in horror. Nothing seemed to work to get him back on track. Then one day he wanted to try some cannabis oil. I gave him a capsule and something changed. He wanted oil and not the opioids. He wanted oil every day. Small amounts. For about a year. Then one day he just quit the oil and decided he just wanted a little cannabis to smoke to take the edge off. God gave him back to us now. I can't express how priceless this is.
  5. 6 points
    Restorium2

    Med card if MI Legal?

    You would have better protections with your right to drive with a positive blood test as a patient. You can make a better case that a patient isn't impaired due to their chronic use. In most cases before a judge, having a necessity defense would be better than a recreational defense. I think that even if you didn't renew after theoretic legalization, having a long line of cards shows that you have done your best to stay on the right side of the law. So patients will always have the upper hand in a defense. There are situations where having a card helps with employment issues. Also, child custody issues. There's a lot of issues that being a carded patient will make easier to explain and handle.
  6. 6 points
    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
  7. 6 points
    Man won't face jail for technical violation of medical marijuana law Unfortunately all too often we are seeing these types of cases reported in the media regarding the MMMA. I take issue with these conclusions. The law allows each patient 2.5 ounces of usable marijuana and to cultivate up to 12 marijuana plants kept in an enclosed, locked facility. Any registered caregiver can have up to that amount for each patient registered to them (with a maximum of six), including the grower, if each person has an MMMA card. In his wife’s plot were an additional 40 plants, but the agents said Delucenay was the one actually cultivating the crop, not his wife. "You can’t do two grow operations in excess of what the law allows," Kimble said. I patently disagree with this interpretation and firmly believe that the interpretation being used from the People v Bylsma Michigan Supreme Court is wrong. Section 4(d) of the MMMA clearly states that: (d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver: (1) is in possession of a registry identification card; and (2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. The facts presented in this case seem to be unequivocal that the accused and his wife possessed a cards, and were in possession of an amount of marihuana that does not exceed the amount allowed under this act. There were no assertions in this article to suggest the existence of evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. The State claimed it was a technical violation, so why is it a “good” or “fair” deal to plead to anything other than a technical violation? Why is the only offer available to the accused to plead to a violation of the controlled substance act, when the accused is allowed to possess and engage in the medical use of marihuana? Michigan’s Medical Marijuana Act (MMMA) "is highly complicated, especially for caregivers," Branch County Circuit Court Judge Bill O’Grady told Kevin Delucenay while the latter faced sentencing. While I disagree with this statement, and suggest complicated is a code word for good for the caregiver and bad for the Police, Prosecutor, and the costs associated with a plea to a controlled substance violation. The question that remains is if it is so complicated, why is the accused guilty of anything, other than being confused like everyone else? Ignorance of the law is no excuse, but confusion of the law is something very different. Too many patients and caregivers who have relied upon the MMMA to protect them have been ensnared in the criminal justice system because of judicial and prosecutorial confusion. I would suggest that before someone is guilty of any crime, the Judge, Prosecutor and the Police must not be confused about the law. Read more: http://www.thedailyreporter.com/article/20141029/News/141028892#ixzz3HZFkElDL
  8. 6 points
    Recently in Chicago, a young man was charged and tried for felony possession with intent to deliver marijuana. During a suppression hearing, it became evident that the five officers had conducted an illegal search of the defendant's vehicle. All five officers systematically lied on the witness stand, claiming the defendant consented to the search. A video proved otherwise. The judge, a former prosecutor, admonished the officers and threw out the evidence against the defendant. The prosecutor dropped all charges against the defendant. Let's face it -- as humans, we are imperfect. Some of us lie and cheat to make our personal or professional lives easier. Like anyone else, some police officers may also lie and cheat for similar reasons. The difference between a police officer and the rest of us is that we must answer to them while the police have authoritative power to act with impunity, under the color of the law. When we discover that a police officer has lied, it raises serious questions and concerns. For every falsehood uncovered, how often does one go unnoticed? How often do a police officer's lies end up becoming damning evidence against a defendant? When the police lie, the integrity of our entire system of government comes into question. I read about the case out of Chicago, and wondered what the reaction of an average person might be. Shock? Anger? Eye-rolling annoyance? In my work as a criminal defense attorney, I leave nearly every courtroom experience feeling that the police have lied or at least exaggerated the facts. My experience is not unique. This happens every single day in every single courtroom throughout the country. To make a case against a defendant, some police officers feel the need to stretch the truth to fit within the confines of the charging crime. The war on drugs, families and our constitution is compromised when police officers lie. Lawyers challenge the integrity or truth of police officer testimony, as it relates to searches of persons and homes, before the judge and not the jury. The issue of illegal searches is a legal issue and not a factual issue. This means that at no time on behalf of my client can I argue in a jury trial that the police violated my client's constitutional right to be free from illegal searches, and therefore you should find him or her not guilty. That argument is going to be in front of a judge, if at all. Despite the solemn judicial duty to be the final arbiters of constitutional protections, it could be political suicide to appear to be soft on crime or make rulings that the police officers lied or violated the defendant's constitutional rights. Almost every case that arises from an executed search warrant will ultimately be challenged in court, yet very few result in the finding of any violation or the exclusion or suppression of illegally or unconstitutionally obtained evidence. This brings us to the case in Chicago. Five officers testified on the witness stand and lied under oath, concocting a story to avoid a finding that they had in fact violated the defendant's constitutional rights. But for a sole dash cam video these officers were unaware of, this would have been an average day in the criminal justice system. The defendant's story would have been the typical story told in the war on drugs: The bad guy doper wants the judge to believe the police are lying. The doper must be the obvious liar because he was the one caught with drugs. He's found guilty of his felony charges. Had it not been for the dash cam the officers meant to disable, the lies fabricated by all five police officers would have been accepted as the truth, and the defendant would likely be a felon, and another victim of the war on drugs, added to the growing and senseless list of American citizens. Some readers may think: the defendant had the marijuana, so even if the officers lied about how they got it, he is still guilty of a crime. Those readers are missing a very important point. We entrust our police officers with great power and a shield of governmental immunity. While they have the power to search, seize, detain, arrest and use deadly force if necessary, they must do so under the strictest of guidelines. With that in mind, consider the following: can a police officer pull you over and arrest you simply based on a hunch? No, not unless the officer observed a traffic violation or has reasonable, articulable suspicion that a crime is being committed. What if an officer decided they didn't care about the law, pulled you over anyhow, handcuffed you, and then discovered you had a small bag of marijuana hidden in your right shoe? If the officer lied and said they effected the search and arrest within the confines of the law, you may very well end up with a criminal charge and conviction. When the police abuse their authority by lying, it can lead to innocent people being charged with crimes they did not commit, or simply people being illegally searched and seized, resulting in charges they would not otherwise have. For years the war on drugs has been waged based upon the truth, veracity and integrity of the law enforcement community. If a police officer doesn't have probable cause to search, they must obtain a search warrant. In order to get a search warrant, an affidavit must be presented to a neutral and detached magistrate. The magistrate is supposed to examine and read the affidavit, and determine if probable cause exists that a crime is occurring at that moment in time. If such a finding is made, the magistrate will sign the search warrant authorizing the government to execute a search warrant. This finding of probable cause and the authorization to execute the search warrant is the tool used by the government to vitiate and circumvent the protections set forth in the Constitution of both the State of Michigan and the United States. When officers lie, as in the Chicago case, the problems with the system of justice and the war on drugs is exponentially highlighted. How many times had the officers done this before? In order to have such a coordinated, if dishonest, performance, presumably this had not been the first time. How many other defendants, who also claimed the violation of their constitutional rights, challenged the officers' version of events before a judge but without a video, and were denied the relief they requested? Without the video, how can one person prove that five seasoned and experienced officers of the law were lying? What judge would ever hear the testimony of five police officers repeating the same story five times over again, yet make a finding that the defendant with drugs in his car was more honest or credible than the officers? Without hard evidence to the contrary, like the miraculous dash cam in the Chicago case, it simply does not happen, ever. What about the officers who do in fact get caught lying? One would think that for the integrity of the system, each jurisdiction would maintain a list of officers who behaved as such so that these constitutional atrocities cannot ever happen again. Yet no such list exists. In the rare situations when an officer is found to have violated a defendant's constitutional rights, similar findings often seem to appear on the same day. It's not uncommon to learn later in the day of a similar ruling, with the same officer with an affidavit for a search warrant before the same magistrate who issued the previous search warrant erroneously. Notably missing is any note of the previous transgressions, leaving a fundamental lack of accountability. The officers in the Chicago case were sent to desk duty. As far as we can tell, there has been no review of the officers' past cases. After some time passes, business will likely continue as usual. Like many other people, some police officers lie on the job. The difference is that their lies have a resounding ripple effect with devastating consequences. When an individual's reputation, years of their life or life itself hang in the balance and their entire case comes down to their word against that of a lying police officer, the odds are most assuredly not in their favor. Unfortunately, without hard evidence like a video to document your story, an officer's testimony will be very difficult to overcome. Something like a dash cam video, like the lifesaving evidence from the Chicago case, can be the difference between prison and having your charges dropped. Unfortunately, this evidence can only be collected and provided by the very people who have violated your rights -- the police. We entrust our police officers with our personal safety, protection and upholding the law. They are burdened with great responsibilities under the law to follow protocol, policies and procedures because they have tremendous power. There cannot be any blurred lines between their duties and authority as law enforcement officers, heavily limited and regulated by state law and various policies and procedures, and their powers of enforcement.
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