On Michigan, Marijuana, Montana And Medibles: Mpp’S Chris Lindsey Explains ‘Carruthers’

[bobandtorey]

Legislative analyst and attorney Chris Lindsey discusses the Court of Appeals decision in Carruthers regarding concentrates and medibles- and how this whole scenario has been played out before

FLINT- Michigan’s medical marijuana community is still adjusting to the Court of Appeals ruling that removes primary protections for medical marijuana patients for most brownies, oils, creams and pills made from cannabis.

 

According to the Marijuana Policy Project’s (MPP) Chris Lindsey, those adjustments may be more permanent than temporary.

In the case of People v Carruthers, the appellate court found that commonly-used extracts and foodstuffs made from marijuana are technically classified as ‘marijuana’- not ‘usable marijuana’,

 

a category of cannabis that enjoys protections under the Michigan Medical Marihuana Act’s (MMA) Section 4 primary defense scheme. Patients caught with the disputed compounds and foods will still have a post-arrest Affirmative Defense under Section 8 of the MMA- but that is only applicable after the patient has been charged with a crime, their medicine has been confiscated and their mugshot has been taken.

 

During an interview on The Planet Green Trees Internet radio show, Lindsey described the Court of Appeals decision as part of a national trend targeting states where marijuana extracts are not specifically defined as usable.

 

“The problem is that the definition of usable marijuana is much narrower than the definition of marijuana,” Lindsey explained, “and while that seems kinda silly to be throwing those terms around and act like they are different, it is a big deal and that’s where the appellate court spent a lot of time in it’s analysis.

 

“I watched Montana’s Supreme Court go through the same process and Arizona’s Agency just went through it. This is a trend that’s happening in other locations.”

 

According to the appellate court, Earl Carruthers mixed marijuana and butter together, strained the mixture and used the butter to create brownies. Those brownies are not ‘usable’ because the liquid butter contained extracts of the marijuana plant. If Carruthers had put the butter and marijuana and brownie mix all together at the same time, the resulting brownie would be usable because it was created with dried cannabis, not an extracted form.

 

“Within the ‘usable marijuana’ definition it’s flowers, it’s leaves. When you talk about ‘marijuana’ in the health code, or the criminal codes of other states, it’s the entire plant living or not, the extractions from that plant…” said Lindsey.

 

Where the extracts are listed in the definitions is the key to the legality issue. ”The appellate court in Michigan, the Supreme Court in Montana and the Agency in Arizona look at these two definitions and they say: usable marijuana doesn’t talk about resins, I don’t see anything about extractions but I look at this definition (of marijuana)… sure as hell, there it is.”

 

When looking for a solution to the Carruthers conundrum Lindsey draws from his own experiences in Montana. “Where do we go from here?” he asks. “There are two approaches- there is change the law, there is litigate it and get case law back in line.”

 

Planet Green Trees host and attorney Michael Komorn announced that he and fellow attorneys Neil Rockind and Stuart Friedman had just that very day petitioned to the Supreme Court to appeal the Carruthers case. A link to their petition can be found here.

 

Lindsey related this appellate effort to an experience from Montana related to their medical marijuana law, passed in 2004. “It was the same sort of thing where we were arguing on, look at this definition here, look at this other definition over here, think of what the spirit of the intent of the voters was, and their answer on that was, we can’t take a poll of the voters back in 2004, we have to look at the law they adopted and assume that that the way it is written is the way they wanted…”

 

Komorn agreed that the appellate option would be difficult. “The issue may be that, those arguments to the supreme court that the voters did not intend for the only methods of ingestion to be Justices to be smoking or vaporizing- what about these kids? What about the kids whose parents are now subject to arrest because they possess a brownie? And (the Supreme Court) may say, that’s not our problem, go to the legislature,” he said.

 

Lindsey analyzed the appeal process’s chance of success, saying “to fix it at the Supreme Court level which is going to require some fancy footwork and going back to the intent of the voters… I am skeptical; I respect the work that you are doing but… that is a difficult row to hoe.”

The second option Lindsey outlined held greater promise for the MPP spokesman.

 

“The other way is change the law, and that’s where it needs to be. It’s not a hard sell. Edibles are preferred by physicians. They are better in many respects for a lot of patients… To say in Michigan that the only way you can use your medicine is to smoke it or vape it is ridiculous,” he summarized.

 

“I just think that your best bet really is to go in and change the language of the Act and get past it.”

How did Montana’s Supreme Court decide the issue? “In 2012 we had a string of four cases come down (from the Supreme Court), and they were all of them bad,” Lindsey said.

 

“One of them was this issue of cannabis oil. Our Supreme Court came up with the exact same issue, really on the same reasoning as the appellate court in Michigan- that the definition of usable marijuana and marijuana in the criminal code, these two things are not the same thing and we don’t see anything that talks about extracts (in the definition of usable marijuana).”

 

http://www.theweedblog.com/on-michigan-marijuana-montana-and-medibles-mpps-chris-lindsey-explains-carruthers/

Edited September 11, 2013 by bobandtorey

[t-pain]

its pretty simple i think.

 

the thc molecules are part of the dried flower, correct?

the thc molecules from the dried flower were mixed in the butter, correct?

the brownies were made with the dried flower molecules +butter, correct?

 

therefor, the brownie is a preperation of the dried flower. and comes under 'usable marijuana'.

 

to say that the pieces of dried flower arent dried flower because you cant see them with the naked eye is where CoA made up some moo poo.

Edited September 11, 2013 by t-pain

[beourbud]

its pretty simple i think.

 

the thc molecules are part of the dried flower, correct?

the thc molecules from the dried flower were mixed in the butter, correct?

the brownies were made with the dried flower molecules +butter, correct?

 

therefor, the brownie is a preperation of the dried flower. and comes under 'usable marijuana'.

 

 

You call that simple?...lol

 

Thinkn simple = dried flower

 

Lets Roll with it

Edited September 11, 2013 by beourbud

[t-pain]

ok, reading the montana hash oil opinion now.

 

the montana MMA uses the definition of marijuana from the crimial code

the criminal code seperates marijuana and hashish as different things.

so the court said the montana MMA defines marijuana as the plant, and hashish is seperately listed in the criminal code definition.

 

hmm

the montana law is very similar to our law

 

 

  (20) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant and any mixtures or preparations of the dried leaves and flowers that are appropriate for the use of marijuana by a person with a debilitating medical condition.

 

from the montana supreme court opinion:

 

The State argues that to be “useable marijuana” as defined by 50-46-102(10),
MCA (2009), the substance in question must first be “marijuana” as defined in 50-32-
101(17), MCA (2009). We agree. When read together, it becomes clear that in order to
have been considered “useable marijuana,” the substance Pirello possessed needed to be a
preparation of the intact “plant material from the genus cannabis.” Once that plant
material was “mechanically processed or extracted” in a manner that reduced it to resins,
the substance ceased to fall within the definition of “marijuana,” and therefore could not
be contained within the definition of “useable marijuana.”

 

 

our law sec3e

(e) "Marihuana" means that term as defined in section 7106 of the public health code, 1978 PA 368, MCL 333.7106.

MCL 333.7106 states:

 

(3) “Marihuana” means all parts of the plant Canabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.[/b]

 

so resin at least seems to be included in our MMMA definition of "marihuana"

 

then theres sec3k 

(k) "Usable marihuana" means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.

 

sec3f states

(f) "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana

 

sec4 states:

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 2.5 ounces of usable marihuana

 

resin falls under both marihuana and usable marihuana. at least imo.

the only thing we dont know is how much sec4 protects 'unusable marihuana'

from my reading it looks like sec4 protects against all marihuana and only 2.5oz usable marihuana.

 

well, its not legal advice.

 

i'll have to look up what the arizona courts said.

Edited September 11, 2013 by t-pain

[t-pain]

pfffft arizona has a nice subsection

 

© Marijuana that is incidental to medical use, but is not usable marijuana as defined in this chapter, shall not be counted toward a qualifying patient's or designated caregiver's allowable amount of marijuana.