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Macomb County Judges Grapple With State Medical Marijuana Law

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fyi; why grapple, just accept and implement as we voted for.





For The Oakland Press


Macomb County, along with counties throughout Michigan, is in a constant state of flux and conflict over the interpretation of the state medical marijuana law, as judges recently issued rulings in two criminal cases.


The rulings are among dozens or more by judges who are in the process of deciding how the law will be implemented because the law was written so vaguely that judicial interpretation is required.


“There’s a lot of things that need to be tightened, a lot of things are not covered in the law,” said assistant Macomb prosecutor William Dailey, head of the drug unit. “Some of it is getting ironed out as we go.”


“It’s an ever-changing field — things are changing on a daily basis,” said Matthew Abel, a Detroit-based attorney and leading advocate of the Michigan Medical Marijuana Act. “There’s a lot of push and pull going on, not only in the criminal justice system but in civil law,” involving municipalities and medical-marijuana dispensaries and collectives, and labor law.


In an April 11 ruling at Macomb County Circuit Court, prosecutors gained a victory when Judge David Viviano prohibited a 44-year-old Roseville woman from using medical marijuana while serving probation for a marijuana possession conviction via a plea. Viviano said the condition preventing medical marijuana use for Roberta Buthia, who obtained her MMA certification after her arrest, is related to her “rehabilitation.” On her MMA certification application, Buthia’s doctor said Buthia suffered from “severe and chronic pain.”


“Probation is a matter of grace to avoid incarceration, and the use of medical marijuana is not a fundamental right,” Viviano says in the ruling.


In a Feb. 7 decision, MMA defenders won when Judge William Hackel III of 42-II District Court in New Baltimore dismissed four drug charges against two men each because police failed to seek a new search warrant after discovering the suspects were certified under the MMA.


Roseville police learned from a confidential informant of the suspected facility on 28 Mile Road in Lenox Township and found a large heat source in the structure in a thermal imagery test. In January 2010, police went to the Lenox structure and arrested Kent R. Currie, 39, of Kimball, and Dean M. Ferretti, 36, of Clinton Township, after the pair drove away. Before conducting a search, officers learned Ferretti had a caregiver card and Currie had a patient card, but they proceeded searches at the Lenox facility and their homes, finding more marijuana than allowed under the MMA.


Once officers learned about the cards, they should have returned to the district judge or magistrate and provided the new information, particularly since there had been no other significant evidence, such as undercover purchases, Hackel says in the ruling.


Macomb prosecutors have filed an appeal to circuit court but have not yet submitted its arguments.


The state Medical Marijuana Act, which took effect Dec. 4, 2008, gives those who obtain patient certification the right to use marijuana for medicinal purposes and possess up to 2 1/2 ounces and 12 plants. A certified caregiver can supply up to five additional patients, subject to the same limits as a patient for each patient. Certification must be obtained via a prescription from a medical doctor of doctor of osteopathy, and there must have been a physician-patient relationship.


A group of caregivers have been joining forces to operate dispensaries or collectives. Since each caregiver can grow enough marijuana for themselves and five others, each caregiver can posses 15 ounces – nearly a pound – and 72 plants. For instance, a collective of six caregivers could possess about 5 1/2 pounds and 432 plants.


There is not a limit to the number of times a patient can purchase up to 2 1/2 ounces from his or her caregiver, Abel said.


Rulings outside Macomb


The state Court of Appeals has ruled on a handful of MMA cases, but none of the cases have reached the state Supreme Court.


In People vs. Keith Campbell, the appeals court decided that a criminal defendant cannot retroactively obtain certification to avoid a marijuana possession or delivery criminal charge. His 2007 criminal charges were reinstated.


Defendants in two appeals court cases have applied to appeal to the high court.


The COA agreed with the Shiawassee County prosecutor that Owosso resident Larry King’s dog kennel was not the proper “enclosed” and “locked” site for growing marijuana. The American Civil Liberties Union filed an appeal on behalf of King to the state high court.


The top court is also considering whether to hear a case in which the COA also sided with law enforcement in deciding a Madison Heights couple — Robert Redden and Torey Clark — failed to prove their physical condition were serious and debilitating enough to be certified under the MMA. The COA said the couple’s single doctor visit failed to constitute a bonafide doctor-patient relationship, and both defendants failed to establish a “serious medical condition.” Redden reported “pain” and Clark had “nausea,” according to the COA, but the couple’s underlying conditions were not revealed.


Legal observers also are awaiting the outcome of multiple cases in Oakland County, where law enforcement in August raided medical marijuana facilities in Ferndale and Waterford. Early this year, sheriff’s deputies raided a dispensary in Oak Park, and earlier this month the U.S. Drug Enforcement Agency led raids at numerous locations, including a dispensary in Walled Lake.


Abel said law enforcement officials Oakland and Shiawassee counties are overzealous.


“The prosecutors in those two counties should be recalled,” Abel said. “They are using the law as a sword when it should be used as a shield.”


Macomb in balance


Abel said he has not noticed major concerns in Macomb County, yet.


“Macomb County seems more tolerant, more reasonable,” he said. “They’re not going over the top.”


Dailey said that prosecutors are doing their best to maintain the right balance of enforcement, noting that voters passed the citizen-initiative ballot proposal by 63 percent.


“We’re taking things on a case-by-case basis, mindful that this law was passed by the majority of voters in the state and Macomb County,” Dailey said.


Still, defense attorneys are taking interest. About 50 lawyers, including a judge, in January attended a talk about the law by Abel, who provided advice about advising and defending clients involved with medical marijuana.


“I haven’t had a case involving medical marijuana yet, but I’m studying up on the law because I know I will,” said Macomb County criminal defense attorney Mark Haddad.


Abel said many of his clients who operate growing operations are fearful about their efforts being construed as illegal and charged with a crime, wiping out their business, Abel said. He said some growers are being convicted on a “technicalities.”


“We’re having disputes over technicalities,” he said. “One false move and these entrepreneurs could lose everything.”


Abel argued that in the current economic distress faced by communities, local officials should encourage the MMA facilities in their town because, “We have a bunch of small businesses” that employ people.


Medical marijuana nationally is a $1.7 billion market, according to a report released in March by See Change Strategy, a financial analysis firm that specializes in new and unique markets.


Abel told Macomb lawyers to advise clients to move carefully.


“The safest place to do it is in a city that will give you a license to do it (become a caregiver),” Abel told lawyers.


Enforcement and licensing


Communities that license are rare; none are in Macomb County. Communities that provide license include Ypsilanti, Garden City and Walled Lake, Abel said. Ann Arbor is in the process of granting licenses, he said.


Mount Clemens Mayor Barb Dempsey said she favors the city granting licenses, but that city currently has a moratorium on providing zoning for a growing operation or dispensary.


The city of Warren — which also has a moratorium — is the site of multiple growing operations. The south end especially is a prime area for it due to its relatively low cost of housing in which to grow the leafy plant, although police say they’re keeping Warren from becoming a Wild West for pot growers.


“We’re being pretty proactive,” said Lt. Glenn Brymer, head of the special investigations division. “We have some mom-and-pop operations. Although medical marijuana is legalized, these are pretty covert operations. Most of the communication is gossip and on the Internet.”


Warren Police Commissioner Jere Green said police are keeping a close eye on the operations and arresting when they believe a crime is being committed.


“We’ve seen things go both ways,” Green said. “We’ve entered houses where the occupants have been within the parameters of the medical marijuana law.”


Approximately one-third of the 102 drug-related search warrants conducted in 2010 and 2011 in Warren involved people and structures where medical marijuana was claimed, Brymer said. In about half of the MMA cases, prosecutors have gained a warrant and conviction, typically through a plea deal, Brymer estimated. In the other half of cases, he said the suspects were operating properly within the MMA, he said.


Brymer did not wish to reveal investigative techniques but said undercover officers have purchased marijuana from caregivers, some of whom have been “selling it on the street,” and officers have responded to neighbor complaints about a home where people “are coming and going.”


Many in law enforcement say they would like to have access to the list of patient and caregiver card holders so they know suspects’ status know early in an investigation. It would avoid lost time and effort, Brymer said.


Licensing at least would provide officials with caregivers’ names.


“I would like to see some regulation, some control,” Brymer said.


Dailey he would like to ban felony drug convicts MMA certification and stiffen standards for the patient-doctor relationship to ensure those gaining patient certification are legitimately sick.


What is sick?


Some in law enforcement worry that many patients and caregivers are healthy pot smokers who only gain certification to smoke marijuana for recreational purposes and/or sell it for profit.


“I think when we voted for this we were looking at really sick patients,” Dailey said. “You think of giving relief for a loved one dying of pancreatic cancer, but I’m not sure that is happening. Not only are people taking advantage of the law, but we should look at, ‘Is this what we voted for?’”


A state Department of Community Health report to be released soon says a majority of about 64,000 people authorized to use medical marijuana in Michigan have unspecified ailments that cause severe and chronic pain, muscle spasms and nausea, according to a published report last week. The top medical condition for medical marijuana certification was severe and chronic pain, with 36,560 patients. The second most common ailment was about 15,500 with severe, persistent muscle spasms and the third was about 7,300 with severe nausea. There were about 1,400 certifications for cancer and about 1,100 for hepatitis C.


The Redden-Clark case showed the court believed the patient and doctor must have an established relationship, and one visit was not enough.


Abel said he is disappointed by the “silence” of the medical community in supporting doctors who prescribe.


“I’m asking doctors to lawyer up,” he said. “If a physician signs (the MMA) application, that should be enough.”


Law enforcement officials also interpret the law as requiring a caregiver to provide the names of their five patients. That prevents caregivers from freely providing pot to anyone with a card.


But Abel retorted, “What’s the difference of where they (patients) buy it, from some guy on the street or somewhere else, a dispensary? Police just don’t want people smoking pot.


“Law enforcement is worried about people driving under the influence of marijuana, but I think it has less effect than alcohol, and yet we have a million bars in Michigan.

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