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NaturesLove
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What's up Michiganders!!!

Moving back to a legal MMJ state and my home town. So flippin' excited to be back in the Great Lake state again but....

 

I'm confused...

So what is legal in the mitten state? Can you give me some insight on this please:

 

Dispensaries?

Compassion clubs?

MMJ delivery service?

I always thought all of these were illegal in MI but I see them on weedmaps, especially in the Detroit area?

 

Like I said confused. Are these legal running business'? Would love to start a delivery service in my town.

 

Thanks all-

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What's up Michiganders!!!

Moving back to a legal MMJ state and my home town. So flippin' excited to be back in the Great Lake state again but....

 

I'm confused...

So what is legal in the mitten state? Can you give me some insight on this please:

 

Dispensaries?

Compassion clubs?

MMJ delivery service?

I always thought all of these were illegal in MI but I see them on weedmaps, especially in the Detroit area?

 

Like I said confused. Are these legal running business'? Would love to start a delivery service in my town.

 

Thanks all-

 

It is a bit more complicated than "what is legal?"

 

Section 4 of our Act provides protections from arrest for a patient who:

 

- Conducts himself with MJ for the purpose of alleviating his debilitating condition.  (The MI supreme court ruled that patient to patient transfers are not protected because the transferring patient is not alleviating his condition)

 

- possesses no more than 12 plants

 

- possesses no more than 2.5 ounces of "usable marijuana"

 

Note that "incidental" seeds and unusable roots and stalks are not included in the total.  Be careful here - if you have a jar with stalks soaking in it, it would be hard to argue that the stalks are not usable.  Also, if you raise plants for seeds, know that "incidental" means "unintended."  So you'd have a hard time not counting seeds as part of the weight if you intended them.

 

Section 8 provides some additional safety nets as far as you possession limits and conduct, but Section 8 comes into play after you're arrested and then you'd have the burden/cost of proving in court that your actions should be OK.

 

The conventional delivery systems and dispensaries are not protected under Section 4...maybe Section 8 if you have an appetite for the legal system.  Such businesses are tolerated in many areas for several reasons, not the least of which is that they are tough to prosecute.

 

Welcome home.  Be safe and smart.

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Thanks for the reply HighLander. Def some things to consider. 11 months ago I was a legal MMJ patient in AZ, where they allow sales in compassion club/dispensary type store front and deliveries. Got a job relocation to the Bible Belt area, TN, and have hated it. My back pain has been unbarable some days and all they want to do is have me pop pills: NO THANKS! Yes I could've turned to the black market but I like to know where my meds come from and how they are grown. With that said, I can't wait to have a legal green thumb & not just for vegetable anymore...

Edited by NaturesLove
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I don't think incidental means unintended in this situation. I think it refers to those seeds which happen as a normal part of growing cannabis. Incidental really never means unintended.

 

Per Meriam-Webster

 

Incidental: 

 

1
a :  being likely to ensue as a chance or minor consequence <social obligations incidental to the job>
 
b :  minor 1
2
:  occurring merely by chance or without intention or calculation
 
Considering a public initiative is interpreted based on common dictionary definitions, I would not take the risk of intentionally growing for seeds and try to defend myself by saying that definition 2 doesn't apply.  My non-legal-advice opinion.
 
 
Edited by Highlander
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It is more properly the first definition. The definition you are pointing to doesn't fit. Seeds are incidental to growing plants.

 

So what you are saying is that you can intend to produce any number of seeds and could, in theory, possess pounds and pounds of seeds and still be in compliance with Section 4? 

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I think so, based on the most common definition of the word. It seems that the intent was to not count them at all because plants produce seeds and they are not psychoactive.

 

Myself, I would not take that gamble, but I'd gladly donate to the defense of someone else who did because this is a reasonable argument.

 

But we also have to look at statutory interpretation requirements, which tell us that every word in a statute is there for a reason and means something.  If you have a legal interpretation and take a word completely out of the equation and believe that the revised sentence means the same as the original, then there is an error in the interpretation.  In other words, if an interpretation renders a word to be without meaning, it is the wrong interpretation.

 

So we have to conclude that "any incidental amount of seeds, stalks, and unusable roots" means something different than "any amount of seeds, stalks, and unusable roots."

 

Maybe the difference is that "incidental" seeds are those incidental to your grow, whereas "any seeds" would mean, well...any seeds....which would include seeds not from your grow?  So seeds incidental to your grow don't count, but seeds that were not incidental to your grow (such as bought from someone else) do count as part of the weight limits?  Or is there some other way to look at this?

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For instance, I have never seen anything but packaged seeds get logged in as evidence in any case, even with whole plants full of them. I have still never seen seeds become an issue for the court even when they are confiscated.

This detail made your argument concrete, and better defines risk regarding seeds. 

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That is how I have seen it since the beginning. Something tells me the police are not going to want to arrest someone and haul them into court to argue about the definition and scope of the word "incidental." For instance, I have never seen anything but packaged seeds get logged in as evidence in any case, even with whole plants full of them. I have still never seen seeds become an issue for the court even when they are confiscated.

 

I can go along with that.  I also just noticed that my earlier point about stalks soaking in a jar wouldn't be "unusable," but I notice now that "unusable" is only attached to "roots."  So while any amount of stalks from your grow might have a "use," they are not considered part of the 2.5 oz. of "usable marijuana."  My jar example probably would hold with roots being processed for salve ,etc. because they are not "unusable." 

 

So in conclusion, any amount of seeds or stalks originating from your own grow don't count towards the 2.5oz.  Seeds or stalks not incidental to your grow (e.g. gotten from someone else) probably would count (although there is a tree falling in the woods matter here).

 

Any amount of unusable roots resulting from your own grow don't count towards the 2.5.  Any roots not from your grow, and any roots intended to be used, would count?

 

I think we're on the same page.  Thanks for the discussion.

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Any amount of unusable roots resulting from your own grow don't count towards the 2.5.  Any roots not from your grow, and any roots intended to be used, would count?

 

 

This is exactly what stops a Johnson & Johnson, say, from distributing a 'cannabis root balm salve,' and is unfortuante, as roots are loaded with alkaloids and under some conditions, beneficial for health. 

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seeds will be weighed though, and counted as part of your possession weight ?

Zap's very good analysis makes me wonder....how will seeds incidental to your grow be differentiated from seeds that are not incidental to your grow. And while I understand and agree with his position that seeds in plants your grow should not be counted, then just where do seeds not incidental to your grow fall?

 

The law allows a patient to possess:

 

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card 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 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, 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.

 

 

Notice that the act says "an amount of marijuana that does not exceed...." It doesn't say "an amount of usable marijuana..." Seeds of any sort meet the definition of " marijuana" but not " usable marijuana" as defined in the act. So by the conclusions we came to today, if a patient possesses 12 plants, and 2.5 oz of usable marijuana and a 50- pound sack of seeds incidental to his grow, he is OK.

 

But by the clear letter of the law, if a patient possesses 12 plants, 2.5 oz of " Usable marijuana" and a pack of seeds from a seed bank, then he is in possession of an amount of "marijuana" that exceeds 12 plants and 2.5 oz.

 

So we find a black hole in the law. If a patient has possession of seeds NOT incidental to his grow, where does the protection for possession of these seeds come from ?

 

The law gives allowance for incidental seeds. Clearly, seeds bought from Attitude are not incidental to a grow. So where is the protection for these non- incidental seeds?

 

In other words, if incidental seeds don't count, and because non-incidental seeds are not addressed, and because seeds are not "usable marijuana" then where/how does section 4 protect a patient for possession of seeds acquired from outside his grow? It seems that the law fails us in this regard. We'd be better off if seeds were included in the definition of "usable marihuana."

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Maybe a more clear question to resolve: Case scenario- a patient possesses no " usable marijuana" and no plants, and no roots or stalks....and no incidental seeds. But he possesses a 10-pack of Greenhouse seeds bought from attitude. Does he have section 4 protection for said seeds, which by definition are not plants, are not "incidental seeds" and are by definition are not "usable marijuana?"

 

How does a patient assert section 4 protection for possession of these seeds?

 

Some people say our law is solid, and some say it is "inartfully drafted". With regard to seeds obtained from others, I'd say the law is inartfully drafted. Yet another area screaming for sorely-needed legislative clarification/resolution.

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At that point, you should argue the other definition. Like I said, I don't think police are going to argue this one out in court, especially when it is obvious the drafters meant seeds don't count.

Any good PA is not only a master of the law but also a master of grammar/language. So I guess my question isn't what is likely to happen but would may occur if/when then courts take the law per the letter of the law. If the Supreme Court heard such a case, they will roll up their sleeves and dissect the matter at the most intricate of matters. And if that happens, what defense does the patient have that his purchased seeds don't count? The seeds are not incidental and are not "usable marijuana." As painful as it might be, such arguments are better fleshed-out here than on the witness stand.

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At that point, you should argue the other definition. Like I said, I don't think police are going to argue this one out in court, especially when it is obvious the drafters meant seeds don't count.

When the courts consider intent, the first thing they must consider is what the law actually states. As such, the courts will be bound to consider that the law states that incidental seeds don't count and, accordingly that non- incidental seeds must fall under a different category.

 

So we are left to speculate where do these non-incidental seeds fit into the law. I'm not expressing my own view on where said seeds should fall, rather I'm trying to be forward-looking and trying to look forward to how a high court might rule. Appellate court judges and our Supreme Court don't / should not have the privilege of deciding what should be. Their rulings are bound by what the law states.

 

We might hope that the appellate courts and Supreme Court might side with us and conclude that "all seeds are OK". But this would be legislating from the bench, which is something we all oppose.

 

So we are back to trying to convince the courts that no seeds matter. So the question remains: how do we convince the courts that any and all seeds are OK and should not be counted? Judges need a nail to hang their hat on. So how do we convince a judge that any seeds, regardless of source, are not regulated?

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I doubt it will ever get high-court review, I suppose that is what I am trying to say.

As a practical matter I agree with you. But we have seen PAs, especially in Oakland county, fight this cause tooth and nail down to the most minuscule nuances. So we have to separate practical matters from possible legal matters and advise people accordingly.

 

My take is that this is all a subtle nuance of the law. But in my normal line of work, I continually advise people not to relay on lack of enforcement as their own liability protection tool. The old adage applies: you pay your money and you take your chances.

 

I just want folks to understand the full picture of the chances they take.

 

As MMJ law matures in Michigan, there will be a continual supply of people who take chances. Some pay money and some don't. Usually those who take chances have a lower chance of success. People who understand the most conservative boundaries take fewer chances..those who accept chance take a higher risk. I just hope they know which category they fit into.

Edited by Highlander
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My advice is not to appeal if you lose.

This is something we can agree on. If you you lose your case,then take your lumps ( likely probation) and move on with life. If you win and the PA files an appeal then you are probably already in the driver's seat to create case law.

 

In not one to agree with the idea of " don't take any plea deal". We have already seen that underfunded and under supported defendants dish-up crappy case law. I'd hope that any appeal would be filed with the greater good in mind.

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If ever reviewd, it would likely occur as an incidental to the other circumstances that drove the prosecution of that particular situation. Say the Jerald Duval original facts in the case, plus add fiction that he was not only a grower of tree cannnabis but a breeder of cannabis as well, and that leo confiscated a tractor trailer load of blister-packaged seeds bound for the port of Detroit to be shipped to San Diego, and that all of the other evidence in the case and the other charges as well are tossed because the leo who recovered the balance of the evidence is finally found to have dirtied the chain-of-custody and then perjured himself (more fiction).  The federal pros. drops the case, which then is brot by the state to take the farm.  (Kormorn takes the case, more fiction), The only usable evidence agaisnt Jerald is the tractor trailer load of blister-packaged seeds.  When the jury votes not guilty, the pros. appeals.  The COA, of course, convicts for reasoning no one can decipher, and Jerald appeals to the Michigan Supreme Court, which now considers the question incidental to all of the facts (but not incidental to all of the admissable evidence).

In this fictional, convoluted fasion we arrive at a review of the coa's interpretation of 'incidental seeds.' 

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Zap's very good analysis makes me wonder....how will seeds incidental to your grow be differentiated from seeds that are not incidental to your grow. And while I understand and agree with his position that seeds in plants your grow should not be counted, then just where do seeds not incidental to your grow fall?

 

The law allows a patient to possess:

 

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card 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 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, 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.

 

 

Notice that the act says "an amount of marijuana that does not exceed...." It doesn't say "an amount of usable marijuana..." Seeds of any sort meet the definition of " marijuana" but not " usable marijuana" as defined in the act. So by the conclusions we came to today, if a patient possesses 12 plants, and 2.5 oz of usable marijuana and a 50- pound sack of seeds incidental to his grow, he is OK.

 

But by the clear letter of the law, if a patient possesses 12 plants, 2.5 oz of " Usable marijuana" and a pack of seeds from a seed bank, then he is in possession of an amount of "marijuana" that exceeds 12 plants and 2.5 oz.

 

So we find a black hole in the law. If a patient has possession of seeds NOT incidental to his grow, where does the protection for possession of these seeds come from ?

 

The law gives allowance for incidental seeds. Clearly, seeds bought from Attitude are not incidental to a grow. So where is the protection for these non- incidental seeds?

 

In other words, if incidental seeds don't count, and because non-incidental seeds are not addressed, and because seeds are not "usable marijuana" then where/how does section 4 protect a patient for possession of seeds acquired from outside his grow? It seems that the law fails us in this regard. We'd be better off if seeds were included in the definition of "usable marihuana."

Well I guess you would tell anyone who asks only what they need to know.

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Yep.

But then the next question quashes all the fun. If I'm a caregiver and can possess as many seeds as my F-150 can hold, I'm in possession of a huge pile of "marijuana" and for the sake of argument let's agree that I'm protected for that. But how do I transfer that to a patient, when the law allows me to only transfer "usable marijuana" to a patient? "Usable marijuana" only includes flowers and leaves. So where is my section 4 protection if I choose to transfer these seeds (not "usable marijuana") to a patient?

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But then the next question quashes all the fun. If I'm a caregiver and can possess as many seeds as my F-150 can hold, I'm in possession of a huge pile of "marijuana" and for the sake of argument let's agree that I'm protected for that. But how do I transfer that to a patient, when the law allows me to only transfer "usable marijuana" to a patient? "Usable marijuana" only includes flowers and leaves. So where is my section 4 protection if I choose to transfer these seeds (not "usable marijuana") to a patient?

Again, you don't tell anyone anything they don't need to know. Invite them over. If they find some between your couch cushions...

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Again, you don't tell anyone anything they don't need to know. Invite them over. If they find some between your couch cushions...

Yes but there is a difference between a tree falling in the woods with no witnesses and a patient asked to give up some names.

 

In other words, there are a few creative minds here who have some good ideas about how to avoid the letter of the law, but when that fails, as it has and will, then what?

 

We know how to deal with the tree falling but it is the "then what" that screws us.

Edited by Highlander
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