Mma Does Not Protect Dispensaries

[AlternativeSolutionsPlus]

By ANN ZANIEWSKI

Of The Oakland Press

 

A local judge has said that Michigan’s Medical Marihuana Act does not provide protection from prosecution of medical marijuana dispensaries.

 

In a written opinion issued last week, Oakland Circuit Judge Colleen O’Brien granted a motion from prosecutors to preclude defendant Alexander Vlasenko from asserting a defense under the act and mentioning medical marijuana during his trial.

 

Vlasenko is facing three counts of delivery/manufacture of marijuana. The charges stem from an undercover investigation of a Waterford Township business called Modern Age.

 

According to O’Brien’s opinion, two members of Oakland County’s Narcotics Enforcement Team went to Modern Age in July 2010 with fake medical marijuana cards that were created at the Oakland County Sheriff’s Office. They and a third undercover officer purchased marijuana from Vlasenko.

 

Prosecutors in the case argued that Vlasenko’s actions do not fall under the protections of the Medical Marihuana Act, and that he had no authority to sell marijuana to the officers even if they truly were registered patients.

 

The defense said that the prosecution’s argument was unjustified and its position not supported by case law. Vlasenko contends that he is a caregiver.

 

O’Brien wrote that Vlasenko is not entitled to assert an affirmative defense under the Michigan Medical Marihuana Act because “nothing in the MMMA provides for qualifying patients to engage in transfers or deliveries of marijuana to other persons, qualified or not, when the delivery is outside of a caregiver/qualified patient relationship.”

 

O’Brien said the act prescribes a limited set of circumstances under which people who use marijuana to treat serious medical conditions can avoid prosecution.

 

“Under defendant’s theory, he would be protected from prosecution under the act simply because he is a caregiver dispensing marijuana to patients with a medical marijuana card,” she wrote. “However, there is no language under the MMMA that provides protection from prosecution to medical marijuana dispensaries.

 

“The plain language of the provisions of Section 8 clearly evidences the intent of a relationship between a patient and caregiver, not the dispensing of marijuana to the world at large.”

 

Vlasenko’s attorney, Mitchell Ribitwer, couldn’t immediately be reached for comment.

 

Oakland County Chief Assistant Prosecutor Paul Walton said the Medical Marihuana Act allows a caregiver to have up to five patients.

 

“If you’re selling to the general public or anyone who has a card, that’s not lawful,” Walton said. “You’re limited to five people.”

 

According to the information in O’Brien’s opinion, when the two undercover officers arrived at Modern Age, a woman named Corrina Hamilton asked if they were members of the “club.” They said no.

 

The officers inquired about membership and said they were medical marijuana patients. Hamilton told them to join, that it would cost $25 annually and $5 every time they showed up. She explained that they could get marijuana from the caregivers who were there at various times, according to O’Brien’s opinion.

 

Hamilton asked for the officers’ medical marijuana cards. They paid the money and were directed to a back room, where there were couches, a pool table and a TV. Vlasenko was in the room and sold them marijuana, the opinion said.

 

Back in the front room, the officers talked with Hamilton. She told them about having medical marijuana brownies at the facility and said if they referred a friend, they would get a T-shirt, according to the opinion.

 

One of the officers called a third officer, who came to Modern Age and also bought marijuana from Vlasenko.

 

Vlasenko is scheduled to go to trial Sept. 6.

 

Court records show that Hamilton has also been charged with three counts of delivery/manufacture of marijuana. She has an Oct. 27 trial date.

 

Defense attorney Neil Rockind, who is not involved in the Vlasenko case but advocates for the rights of medical marijuana patients and caregivers, said the act protects caregivers who provide marijuana for qualified patients. He said at least at first blush, O’Brien’s ruling appears to contrast an Isabella County judge’s ruling in a case involving a facility known as Compassionate Apothecary.

 

“A caregiver is protected by the act where he or she assists a qualifying patient with the medical use of marijuana,” Rockind said. “The medical use of marijuana does include transfer, acquisition and delivery of marijuana.”

 

Other cases are pending against a number of people who were charged in raids of medical marijuana dispensaries Clinical Relief in Ferndale and Everybody’s Cafe and Herbal Remedies in Waterford Township.

 

Michigan voters in 2008 approved a ballot proposal that included physician-approved use of marijuana by registered patients with debilitating medical conditions and allowed registered individuals to grow limited amounts of marijuana for patients.

 

Medical marijuana has become a hot-button topic. Some say the laws surrounding the use of the substance remain unclear.

 

Contact staff writer Ann Zaniewski at 248-745-4628 or ann.zaniewski@oakpress.com. Follow her on Twitter @OPCourtReporter.

[CedarSpringsCG]

Once again attacking P2P transfers. But the question to ask the judge is how, does a new caregiver or patient obtain a plant to grow if it cannot be transferred from one patient or caregiver to another? Is it impossible to become a new caregiver? How can a law be created that has no legal way of being used?

 

Just wanted to clarify, I am not defending the dispensary, just P2P here.

[tooldini]

It is crazy man and thats what makes me think about P2P transfers. I know we read it as legal but the cops and courts can read it another way, the law is written like the bible I guess read into it what you want. I know many don't want the law messed with but some things need to be more chisled in stone I read P2P transfers are legal and I think anyone OK with the medical marijuana law would read it the same. Too bad people are getting into trouble for something that reads as legal.

[Dr. Bob]

Right now we are dealing with some proposed laws that will get rid of P2P and a rather significant court case at the COA (Michigan vs McQueen).

 

Going back to what I've said before, from a safety aspect we need to not look at the law, but look at what the courts say the law says. Then we at least know the standard they are trying to hold us to. There are doubts on the part of those opposed to the Act, and they are currently trying to pass legislation to close out the opposition. The wild card is the McQueen case, watching the oral arguments and the questions the justices asked (thank you Eric) I have a sense they see the logic of P2P and how that interacts with the wording of the law, and they are troubled by the fact a patient can obtain meds from anywhere, but not anyone can transfer to them. A good ruling could well cut the legs out from under the 'anti P2P' forces, whereas an adverse ruling could assure the passage of the bill.

 

The case was heard in June, hopefully we will have a decision prior to the proposed bills coming up for a vote.

 

Dr. Bob

[KathywithaK]

if this is not legal then why do they issue cards to caregivers that do NOT grow?

[Morhawk]

Right now we are dealing with some proposed laws that will get rid of P2P and a rather significant court case at the COA (Michigan vs McQueen).

 

Going back to what I've said before, from a safety aspect we need to not look at the law, but look at what the courts say the law says. Then we at least know the standard they are trying to hold us to. There are doubts on the part of those opposed to the Act, and they are currently trying to pass legislation to close out the opposition. The wild card is the McQueen case, watching the oral arguments and the questions the justices asked (thank you Eric) I have a sense they see the logic of P2P and how that interacts with the wording of the law, and they are troubled by the fact a patient can obtain meds from anywhere, but not anyone can transfer to them. A good ruling could well cut the legs out from under the 'anti P2P' forces, whereas an adverse ruling could assure the passage of the bill.

 

The case was heard in June, hopefully we will have a decision prior to the proposed bills coming up for a vote.

 

Dr. Bob

 

Let's say the case comes out in favor of the P2P transfers, and then the vote happens. If the laws are passed, would that not nullify the precedent set by this case?

[Dr. Bob]

Let's say the case comes out in favor of the P2P transfers, and then the vote happens. If the laws are passed, would that not nullify the precedent set by this case?

 

Yes it will, but a positive decision will raise some eyebrows on undecided Reps and reduce the change the bills will not pass. A negative outcome would harden some hearts, but no ruling leaves things very unsettled.

 

As for the non-growing caregivers. I checked this with an attorney last night. Also talked with some others that are dealing with similar cases in the court system. A caregiver's job is to provide an uninterrupted supply of medication to their patients. There is no obligation that they physically grow the meds merely that they have them on hand for their patients.

 

Dr. Bob

[Scooter]

quote:

 

O’Brien wrote that Vlasenko is not entitled to assert an affirmative defense under the Michigan Medical Marihuana Act because “nothing in the MMMA provides for qualifying patients to engage in transfers or deliveries of marijuana to other persons, qualified or not, when the delivery is outside of a caregiver/qualified patient relationship.”

 

Nothing except the definition of Medical Use in the MMMA. This is insane, and an attempted prosecution for a transfer between patients would never stand up in a trial by jury! We, the people is our only hope now.

[Kevin]

Dispensaries are being raided and closed as a public nuisance, but some towns are still not closing them. Seems that if public nuisance was the only way AG Schuette was able to get it done, maybe there is some protection under the law.

 

No one has yet shown where Prop 1 states cannabis dispensaries are illegal, and no one will, because it's not addressed.

 

Let the people of each town decide whether or not they think a cannabis dispensary is a public nuisance if there is one in their town. Again, the people had no say in the matter. It was decided for them.

 

 

Peace.

[+EdwardGlen]

I personally will not stop doing P2P...The law has not been changed, and under the law any one can help carded Patient(s) acquire medication.

 

Until a super majority of both houses changes the law I will only follow the MMMA of 2008...

 

I am also letting the Dems in Lansing have it also. Their silence in this entire attack on one certain segment of Michigan residents is despicable...

 

 

The perversion of the law is only possible when, those who should be heard in its defense are silent.

- EdwardGlen

[Celliach]

This ruling never said P2P was illegal, only P2P with compensation, consideration, or renumeration. You are still free and legal to make P2P transfers as long as they are free. In fact, this ruling specifically said that it did not cover this type of transaction.

If you're actually worried about patient's welfare and not making money, this ruling changes nothing. Schuette has a different opinion though.

 

BTW, if you're going to flaunt the law and continue to do illegal things, it's best not to brag about it on the internet!

[Dr. Bob]

The only legal way to transfer marijuana is caregiver to designated patient. p2p for compensation is illegal. Caregiver to 'any' patient and free transfer between patients was brought up but not addressed or ruled on by the court, so they are questionable. I would not rely on being a 'test case' for any of these questionable practices given the way the court framed the decision with the public health code as the ruling law and the MMMA as a small list of exceptions.

 

As any delivery of marijuana is illegal under the PHC, unless per the court specifically mentioned in the MMMA, any p2p carries serious risk of a criminal charge. The only transfer method specifically mentioned in the law is cg to designated patient. I would not advise making any exchange of marijuana outside of caregiver to designated patient. Sorry, but that is the current state of affairs.

 

The only way to repair the marijuana distribution system in Michigan post dispensaries is to develop caregiver networks and coops. Otherwise grow your own and/or a small group of friends. And be prepared to answer some hard questions if you grow 72 plants when you could easily supply your patients with 15 or 20.

 

I posted this because I am worried that so many people are trying to justify what they are doing based on their interpretation of the law, not what the courts have ruled, and in some cases their interpretation of a rather clear court ruling. No p2p, free or for compensation. Do only what the law clearly says is legal, that is the way they want it done and have said so.

 

Dr. Bob

[LongHairBri]

The only legal way to transfer marijuana is caregiver to designated patient. p2p for compensation is illegal. Caregiver to 'any' patient and free transfer between patients was brought up but not addressed or ruled on by the court, so they are questionable. I would not rely on being a 'test case' for any of these questionable practices given the way the court framed the decision with the public health code as the ruling law and the MMMA as a small list of exceptions.

 

As any delivery of marijuana is illegal under the PHC, unless per the court specifically mentioned in the MMMA, any p2p carries serious risk of a criminal charge. The only transfer method specifically mentioned in the law is cg to designated patient. I would not advise making any exchange of marijuana outside of caregiver to designated patient. Sorry, but that is the current state of affairs.

 

The only way to repair the marijuana distribution system in Michigan post dispensaries is to develop caregiver networks and coops. Otherwise grow your own and/or a small group of friends. And be prepared to answer some hard questions if you grow 72 plants when you could easily supply your patients with 15 or 20.

 

I posted this because I am worried that so many people are trying to justify what they are doing based on their interpretation of the law, not what the courts have ruled, and in some cases their interpretation of a rather clear court ruling. No p2p, free or for compensation. Do only what the law clearly says is legal, that is the way they want it done and have said so.

 

Dr. Bob

I respect you opinion and it IS the safe thing to do. However, the intent of the law was safe, uninterrupted supply. we were done a disservice Wednesday when the will of the people was denied. It takes an expert grower to maintain an uninterrupted supply AND never be over on weight, isn't easy and its IMPOSSIBLE for a newbie. if you can't get rid of your overages at harvest, or purchase others when short before harvesting or during curing you now go without or break the law.

 

this is civil unrest not ignorance of the decision

[kevin kushman]

Dr. Bob, Your logic is flawed as a COOP would involve third parties. Either taking care of or distributing the medicine. The appeals court was definitive in that third parties are not allowed as that constitutes a sale. They also addressed (4)(e) as not being a sale, thus falling under the MMMA. They did not address the dispute between the parties(4)(e), but acknowledged the intent. Thanks, Bb

will not be sold as a slave to the state. Thank you BB will talk to you Saturday to see if I can be of any assistance the 7th. how was the purple for your pain?

[_abbenormal]

hello all

 

im still having issue with them using fake id's... im sorry but they have the right to use a fake id to cause un suspecting people to supply this to them... when there intent is to use this to there end which is to make you break the law... with the thought those people are helping some one who is suppose to be sick hence the reason there suppose to have the license... is this not out right lying in court and showing a false statements... this to me is just wrong and using the false thinking that who out here should be held in torment for helping ones who are sick and need this... im sorry but i thought this law was to help others and not to be used by someone under faults pertinences to cause you harm and put you into jail... so this type of deceptions are fine and legal to use in this type of order... so if this is the case then how or why can we not use this as they are... if they use false documents and are not in the register and they come into your home with these fake documents... is that also not legal if you catch them doing this... now should we not be able to also put them into jail for doing this... sorry but i may not be saying this right so please try to understand where im going with this and maybe help me understand how and why this keeps happening out here... i do understand there is no way for us patients or caregivers to check the registry to check there cards... is this also there way to trap more of us... sorry if this is the wrong place to ask about this... i guess im just to simple in my thinking... deception is only used by terrorist and cops now... im beginning to wonder who we should fear more the ones who should protect and serve who were suppose to trust or the ones we dont know and intend to cause us harm... im not seeing much of a big difference... judges rouge lawyers and cops sure are scaring the masses here welcome to politics in michigan...the pure control state of michigan...

 

abbe

[Friendofphotons]

hello all

 

im still having issue with them using fake id's... im sorry but they have the right to use a fake id to cause un suspecting people to supply this to them... when there intent is to use this to there end which is to make you break the law... with the thought those people are helping some one who is suppose to be sick hence the reason there suppose to have the license... is this not out right lying in court and showing a false statements... this to me is just wrong and using the false thinking that who out here should be held in torment for helping ones who are sick and need this... im sorry but i thought this law was to help others and not to be used by someone under faults pertinences to cause you harm and put you into jail... so this type of deceptions are fine and legal to use in this type of order... so if this is the case then how or why can we not use this as they are... if they use false documents and are not in the register and they come into your home with these fake documents... is that also not legal if you catch them doing this... now should we not be able to also put them into jail for doing this... sorry but i may not be saying this right so please try to understand where im going with this and maybe help me understand how and why this keeps happening out here... i do understand there is no way for us patients or caregivers to check the registry to check there cards... is this also there way to trap more of us... sorry if this is the wrong place to ask about this... i guess im just to simple in my thinking... deception is only used by terrorist and cops now... im beginning to wonder who we should fear more the ones who should protect and serve who were suppose to trust or the ones we dont know and intend to cause us harm... im not seeing much of a big difference... judges rouge lawyers and cops sure are scaring the masses here welcome to politics in michigan...the pure control state of michigan...

 

abbe

 

When the officers created counterfeit cards, they broke the law. Using those counterfeit cards I would think opens a whole different can of legal worms. Bottom line, they created counterfeit cards which is illegal. If you or I were to have done the same, we'd be prosecuted. I want to know why the officers that admitted to breaking the law are not being charged.

 

I asked in another thread for who needs their phone ringing off the hook and inbox filled, and same applies to this. If the sheriff himself won't arrest the officers for breaking the law, who does he answer to? What is the chain of command? Eventually someone is going to fear being voted out of office when enough pissed off people DEMAND prosecution.

[t0rpid]

Revised and posted here

[Dr. Bob]

I respect you opinion and it IS the safe thing to do. However, the intent of the law was safe, uninterrupted supply. we were done a disservice Wednesday when the will of the people was denied. It takes an expert grower to maintain an uninterrupted supply AND never be over on weight, isn't easy and its IMPOSSIBLE for a newbie. if you can't get rid of your overages at harvest, or purchase others when short before harvesting or during curing you now go without or break the law.

 

this is civil unrest not ignorance of the decision

 

Thanks, not trying to be a jerk, but I go for safety and a lot value the things I have to say.

 

I strongly believe that in order to assure a safe, dependable supply of medication for patients, we need to realize the situation.

We need to plan to work within the framework that those that arrest us consider legal. We'll continue to fight for all rights we feel we have, but we work with what we have while working toward that goal and building support.

 

Building inter-related networks around cg-designated patient relationships is the key-- a neural net and eventually, if organized properly, we can connect everyone to everyone else and there is not anything they can do about it. Clearly it will never be that large, but I can easily see groups of 500 or more built. That will end up as defacto p2p for a club or local area. We just need to be smart and organized, or have someone that is help us.

 

Dr. Bob

[Dr. Bob]

Dr. Bob, Your logic is flawed as a COOP would involve third parties. Either taking care of or distributing the medicine. The appeals court was definitive in that third parties are not allowed as that constitutes a sale. They also addressed (4)(e) as not being a sale, thus falling under the MMMA. They did not address the dispute between the parties(4)(e), but acknowledged the intent. Thanks, Bb

 

No third parties at all. Direct caregiver to designated patient with that patient being the caregiver to another patient. There is no obligation for a caregiver to grow, just provide, and the lawyers like the strategy. I am looking into things and will post a link, with your permission, soon. I am helping to organize it for my patients, but will have NO financial or management interest, and it is open to any patient. But I will hold the key position of monitoring quality and integrity-- I will stake my reputation that it will be done legally, privately, and designed specifically to assist patient access.

 

Dr. Bob

[mrd]

I have to agree. Since each patient can have a caregiver while being a caregiver for five people with some coordination it should be easy to do. Is there an app for it. Would require a bit of coordination and ideally people would have to follow a schedule to be available (which is hard for some ) then each there for with lets say 100k patients you can have each one having 5 patients for a total of 500k connections. but it defies the go in buy it and forget about id routine that an average dispensary might have allowed. Weak links would have to be fixed. Or you would need overlap. The social networks might be a useful scaffold for this.

 

The only legal way to transfer marijuana is caregiver to designated patient. p2p for compensation is illegal. Caregiver to 'any' patient and free transfer between patients was brought up but not addressed or ruled on by the court, so they are questionable. I would not rely on being a 'test case' for any of these questionable practices given the way the court framed the decision with the public health code as the ruling law and the MMMA as a small list of exceptions.

 

As any delivery of marijuana is illegal under the PHC, unless per the court specifically mentioned in the MMMA, any p2p carries serious risk of a criminal charge. The only transfer method specifically mentioned in the law is cg to designated patient. I would not advise making any exchange of marijuana outside of caregiver to designated patient. Sorry, but that is the current state of affairs.

 

The only way to repair the marijuana distribution system in Michigan post dispensaries is to develop caregiver networks and coops. Otherwise grow your own and/or a small group of friends. And be prepared to answer some hard questions if you grow 72 plants when you could easily supply your patients with 15 or 20.

 

I posted this because I am worried that so many people are trying to justify what they are doing based on their interpretation of the law, not what the courts have ruled, and in some cases their interpretation of a rather clear court ruling. No p2p, free or for compensation. Do only what the law clearly says is legal, that is the way they want it done and have said so.

 

Dr. Bob

[medicinejeff]

This model is basically what I described in another thread. Point of this is as a supplier to registered patients who are also caregivers let's Meds flow up and down the chain. Overages move to patients in need regardless of whose oversges they originally were. Right? In theory maybe easier to contemplate than to orchestrate tho (and I'm not necessarily able to, just more thinkin') :blink:

[t0rpid]

This model is basically what I described in another thread. Point of this is as a supplier to registered patients who are also caregivers let's Meds flow up and down the chain. Overages move to patients in need regardless of whose oversges they originally were. Right? In theory maybe easier to contemplate than to orchestrate tho

 

So long as everyone in the chain is connected to each other via a patient/caregiver relationship, I can't see how this wouldn't work. I also can't see how they could override this in court rulings.

[medicinejeff]

LOL I just thought of Legos or an erector set toys we had as kids. Then they can strip us of Liberty again and pass a bill limiting the "links" per chain. Heck, we could be modeled from textbook strands of DNA each comprised of different Caregiver "amino acids". Question is who can take this silly thought and play Creator? I didn't fair well in Chemistry 1.5 too be exact. But I digress

[Scooter]

This idea was thought of long ago, when the law was new. As it stands, the only way we can be truly safe is for every patient to become a caregiver for 5 patients, who are also caregivers for 5 patients, and so on. A chain across the state, as we proposed back in the spring of '09. Even if you cannot grow, you could still obtain it from a CG who can, even if he /she is 5 links above you in the chain, and you move it down the chain as needed, for example. Complicated; yes. Hard; yes. But safe and legal; yes. It could be done on a sectional scale; county wide chains with a few links to other counties, for example.

[t0rpid]

This idea was thought of long ago, when the law was new. As it stands, the only way we can be truly safe is for every patient to become a caregiver for 5 patients, who are also caregivers for 5 patients, and so on. A chain across the state, as we proposed back in the spring of '09. Even if you cannot grow, you could still obtain it from a CG who can, even if he /she is 5 links above you in the chain, and you move it down the chain as needed, for example. Complicated; yes. Hard; yes. But safe and legal; yes. It could be done on a sectional scale; county wide chains with a few links to other counties, for example.

 

I'm dumbfounded that if this was actually proposed that no dispensary went ahead and actually implemented that model. I never would have gambled on the patient to patient transfers if I were running a dispensary, but I guess that's just me.

 

Once upon a time I had a caregiver to grow for me that sort of did this, but they did collective growing with other caregivers and had a "club", however they made the mistake of growing all in one big operation at one address, which is ultimately why they got busted. If they had multiple growers with each club caregiver linked to a different and independent grower at separate grow sites, it would have worked and offered some stability to the group if one grower were raided.

 

Organizing and maintaining a structure like this really wouldn't be too hard if there were a software management system like mmjmenu modified to manage it.