Shortly after last fall's election, the Michigan Legislature passed the MMA on December 4, 2008, making Michigan the 13th state to allow the cultivation and possession of marihuana for medical purposes. The Act cited a series of findings related to the beneficial uses of marihuana in treating nausea, pain and other effects from a variety of debilitating medical conditions. The Act also notes that according to the FBI, 99% of all marihuana possession arrests nationwide are done pursuant to state, rather than federal law. It is important to note that possession of the drug remains illegal under federal law.
The MMA defines a "debilitating medical condition" as cancer, glaucoma, HIV, hepatitis C, and other diseases along with other chronic afflictions which cause pain and nausea. A "primary caregiver" is defined as, "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs." A "qualifying patient" is "a person who has been diagnosed by a physician as having a debilitating medical condition."
The basic mechanics of the Act provide that qualifying patients and primary care providers (marihuana growers) must possess a "registry identification card", issued by the Department of Community Health. Cardholders are not subject to arrest or prosecution for marihuana possession/distribution provided the patient keeps less than 2.5 ounces of smokeable pot. Care providers are allowed to maintain up to 12 plants for each qualified patient; stems, seeds and unusable roots do not count toward the plant limitation.
Physicians also have immunity from prosecution relative to their certification of the patient's need for the drug, so long as they conduct an assessment of the patient's medical history. A legitimate physician-patient relationship is required.
Since the U.S. Supreme Court decided the case of Conant vs Walters in 2003, physicians have been able to recommend a patient's use of marihuana (but cannot prescribe pot by placing the recommendation on a prescription form). Doctors can also make notes regarding their recommendations in the patient's chart and can testify on behalf of a patient's medical use of marihuana in a court of law. The Supreme Court's Conant decision paved the way for passage of the MMA.
Primary care providers may receive compensation for their marihuana. Selling marihuana paraphernalia also is allowed under the MMA, and such paraphernalia cannot be seized.
Persons merely present during the use of marihuana for medical purposes likewise are not subject to arrest.
Sound too good to be true? When marihuana is distributed to persons other than qualifying patients, the registration card is revoked, and the provider is subject to a 2-year felony. Also, driving while under the influence of marihuana remains illegal, as does smoking in public. Use or possession of pot on school premises or on school buses remains prohibited. And yes, it remains illegal to smoke in a jail or a penitentiary, regardless of your medical condition.
The Act sets a short timetable (120-days) for the Department of Community Health to promulgate regulations for the administration of the possession/distribution credential. The delay of these regulations is giving way to some confusion among law enforcement and the public as to the parameters of legal vis a vie illegal pot possession.
For example, a recent case out of Madison Heights involved a couple arrested in March during a drug-raid. The couple had applied for their certification cards prior to their arrest and received the cards a month after their arrest. In dismissing the case brought against the two defendants, 43rd District Judge Robert Turner characterized the MMA as, "the worst piece of legislation I've seen in my life", according to the Detroit News. Judge Turner's dismissal was appealed by the Oakland County Prosecutor where it is currently pending before Oakland Circuit Judge Lisa Gorcyca.
If you have been charged with use, possession or distribution of marihuana, or are interested in obtaining an identification card, contact our office to discuss your options.
Post Script: This topic made the front page of the Sunday NYT on 11/29/2009. Take a look.
