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Letter Revives Fear Of U.s. Prosecution Over Medical Marijuana


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Letter revives fear of U.S. prosecution over medical marijuana

 

April 19, 2011

 

By Phil Gregory

 

Bottom of FormU.S. Attorneys in Washington State say growing and possessing marijuana are violations of the federal Controlled Substances Act. (AP Photo/Robert F. Bukaty, File)

 

U.S. Attorneys in Washington State say growing and possessing marijuana are violations of the federal Controlled Substances Act. (AP Photo/Robert F. Bukaty, File)

 

A letter written by U.S. attorneys in Washington State is creating some new concerns over New Jersey's medical marijuana program.

 

The letter, written after consultation with Attorney General Eric Holder, says growing and possessing marijuana are violations of the federal Controlled Substances Act regardless of state laws that permit it.

 

David Evans of the Drug Free Schools Coalition said that could put New Jersey's medical marijuana plan in jeopardy.

 

"If it gets off the ground, it very well could wind up with some people getting federal charges against them," Evans said. "They are engaging in selling something as medicine that really isn't."

 

But Assemblyman Reed Gusciora, one of the main sponsors of New Jersey's medical marijuana law, said he believes the federal government is just putting states on notice to have strict controls on medical marijuana distribution.

 

"I think that New Jersey's very tight regulations in place now meet all the federal requirements," Gusciora said.

 

And Ken Wolski, the executive director of the New Jersey Coalition for Medical Marijuana, also said he doesn't believe the letter jeopardizes the state's program.

 

"The Supreme Court of the United State has acknowledged that states have the right to define the practice of medicine within each state, and that's exactly what New Jersey is doing with the compassionate use of medical marijuana act," he said,

 

The state Health Department has not yet finalized the rules for New Jersey's program that is expected to begin sometime this summer.

 

 

 

Michael A. Komorn

 

Attorney and Counselor

 

Law Office of Michael A. Komorn

 

3000 Town Center, Suite, 1800

 

Southfield, MI 48075

 

800-656-3557 (Toll Free)

 

248-351-2200 (Office)

 

248-357-2550 (Phone)

 

248-351-2211 (Fax)

 

Email: michael@komornlaw.com

 

Website: www.komornlaw.com

 

Check out our Radio show:

 

http://www.blogtalkradio.com/planetgreentrees

 

NEW CALL IN NUMBER: (347) 326-9626

 

Live Every Wednesday 8-10:00p.m.

 

PLANET GREENTREES

 

w/ Attorney Michael Komorn

 

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

 

http://www.blogtalkradio.com/planetgreentrees

 

PLANET GREENTREES Call-in Number: (347) 326-9626

 

Call-in Number: (347) 326-9626

 

 

 

Attorney Michael Komorn’ practice specializes in Medical Marihuana representation. He is a board member with the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 20,000 members, which advocates for medical marihuana patients, and caregiver rights. He is also an experienced defense attorney who has successfully represented many wrongfully accused medical marihuana patients and caregivers all over the State of Michigan. He also devotes much of his practice to providing legal consultation, instruction and best business practices for patients and caregivers participating in the MMP.

 

 

 

 

 

 

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Letter revives fear of U.S. prosecution over medical marijuana

 

April 19, 2011

 

By Phil Gregory

 

Bottom of FormU.S. Attorneys in Washington State say growing and possessing marijuana are violations of the federal Controlled Substances Act. (AP Photo/Robert F. Bukaty, File)

 

U.S. Attorneys in Washington State say growing and possessing marijuana are violations of the federal Controlled Substances Act. (AP Photo/Robert F. Bukaty, File)

 

A letter written by U.S. attorneys in Washington State is creating some new concerns over New Jersey's medical marijuana program.

 

 

The letter, written after consultation with Attorney General Eric Holder, says growing and possessing marijuana are violations of the federal Controlled Substances Act regardless of state laws that permit it.

 

David Evans of the Drug Free Schools Coalition said that could put New Jersey's medical marijuana plan in jeopardy.

 

"If it gets off the ground, it very well could wind up with some people getting federal charges against them," Evans said. "They are engaging in selling something as medicine that really isn't."

 

But Assemblyman Reed Gusciora, one of the main sponsors of New Jersey's medical marijuana law, said he believes the federal government is just putting states on notice to have strict controls on medical marijuana distribution.

 

"I think that New Jersey's very tight regulations in place now meet all the federal requirements," Gusciora said.

 

And Ken Wolski, the executive director of the New Jersey Coalition for Medical Marijuana, also said he doesn't believe the letter jeopardizes the state's program.

 

"The Supreme Court of the United State has acknowledged that states have the right to define the practice of medicine within each state, and that's exactly what New Jersey is doing with the compassionate use of medical marijuana act," he said,

 

The state Health Department has not yet finalized the rules for New Jersey's program that is expected to begin sometime this summer.

 

 

 

Michael A. Komorn

 

Attorney and Counselor

 

Law Office of Michael A. Komorn

 

3000 Town Center, Suite, 1800

 

Southfield, MI 48075

 

800-656-3557 (Toll Free)

 

248-351-2200 (Office)

 

248-357-2550 (Phone)

 

248-351-2211 (Fax)

 

Email: michael@komornlaw.com

 

Website: www.komornlaw.com

 

Check out our Radio show:

 

http://www.blogtalkradio.com/planetgreentrees

 

NEW CALL IN NUMBER: (347) 326-9626

 

Live Every Wednesday 8-10:00p.m.

 

PLANET GREENTREES

 

w/ Attorney Michael Komorn

 

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

 

http://www.blogtalkradio.com/planetgreentrees

 

PLANET GREENTREES Call-in Number: (347) 326-9626

 

Call-in Number: (347) 326-9626

 

 

 

Attorney Michael Komorn’ practice specializes in Medical Marihuana representation. He is a board member with the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 20,000 members, which advocates for medical marihuana patients, and caregiver rights. He is also an experienced defense attorney who has successfully represented many wrongfully accused medical marihuana patients and caregivers all over the State of Michigan. He also devotes much of his practice to providing legal consultation, instruction and best business practices for patients and caregivers participating in the MMP.

 

 

 

 

 

We need to constantly remind the Feds that their power in this realm is limited !!

 

"The Supreme Court of the United State has acknowledged that states have the right to define the practice of medicine within each state, and that's exactly what New Jersey is doing with the compassionate use of medical marijuana act," he said,

Dr. Jinx

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There are two aspects or major areas that the federal controlled substance act covers.

 

One area is licensing of doctors.

The other area deals with substances.

 

Both areas deal with the concept of something being acceptable.

 

To date the DEA stand with marijuana is that it isn't "acceptable" to them. Any other opinion does not over ride the DEA view. Therefore if it is not acceptable to them, it is not acceptable.

 

In 2006 the US Supreme court looked at the question of exactly who it is that determines what is acceptable under the CSA.

This examination revolved around the first aspect, that it licensing of doctors.

 

Who decides what is acceptable medical practice within the federal CSA.

 

The issue was assisted suicide. Oregon passed a law that allowed doctors to assist a terminal patient to commit suicide.

 

At issue:

 

  • The DEA claimed they were the only ones allowed to determine what is acceptable medical practice.
     
  • Oregon claimed that They had established acceptability by passing a law. In passing the law they had determined, by law, an acceptable medical practice.

 

The Supreme Court ruled that the US congress had left the responsible party for acceptability was left blank. That if congress had intended to vest that power with the DEA, they would have included that vesting within the CSA. As congress did not vest that power with the DEA, it was improper for the DEA to claim that power for itself.

 

Therefore, if a entity such as a state or city were to define a medical practice as "acceptable" that state or local law over ruled the DEA. That law determined the acceptability of the practice. NOT THE DEA.

 

That establishes the proper method of determining "acceptability" within the federal CSA.

 

Again this was 2006.

 

Many of those, who stand against medical use of cannabis, cite the Angle Raich 2005 case. The Supreme Court ruled in that case that persons are not allowed to break federal law even if obeying the law will cost them their very lives.

 

The primary focus of the 2005 case was civil law in nature. Not criminal law. Angle Raich had never been arrested. She was asking permission, in advance, to break the federal CSA.

 

The case was decided against her. However the issue of exactly who determines what acceptable was not addressed in her case. That was then followed up by the 2006 case that determined that someone else, other than the DEA, determines what is legally acceptable.

 

We have many state and local laws across this nation that have determined that cannabis does indeed have acceptable medical value.

 

We have the 2006 ruling that determined states and local governments can indeed determine acceptable medical practice. That the DEA can not stand alone and deny what has been determined by ANY law as acceptable. The law over rules the DEA.

 

At least the first section of the federal CSA. That being licensing of doctors.

 

The second section of the CSA needs to have that same determination made. That being the accepted medical USE of a substance.

 

As in the first area of the federal CSA, there has been nothing placed within the CSA that empowers the DEA to determine which substance has "accepted medical use." Following the same logic the US Supreme Court followed in 2006, which undermined the power of the DEA to determine exactly what "acceptable" within the CSA, laws could be enacted to define acceptable use. Any law at any level of government would over power the view of the DEA.

 

And that, I believe, is how the stage is currently set.

 

We are one case short of pulling the fangs of the federal medical cannabis policy. One case short of pulling the fangs of the DEA forever.

 

One case needed to get federal laws in sync with state laws about medical marijuana.

 

Who determines acceptable?

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Am glad you cleared that up

 

That court, in 2006, made it clear that the US congress left something blank in the federal Controlled Substance Act.

 

What was left blank was who decides what is acceptable within the CSA.

 

As congress left that a blank, states are free to determine what is acceptable. And if a state makes that determination, there is no agency that can make a determination to overpowers a lawfully passed legislation. The law over rules the DEA. Even if it is a state law.

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States rights have been slowly, in some case rapidly, eroding since the Civil War. In my opinion, if they feel they need to, the Fed will whip out the Commerce Clause and/or Necessary and Proper Clause at the drop of the hat, usually dropping the hat themselves. It also seems lately that courts have been acting as legislative bodies in suporting the Federal agenda. The current administration has eroded states rights horrendously.

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