Attorney says Medical Marihuana Act doesn't lack clarity -- it lacks compassion: Three legal cases may shape the future of law

By Jo Mathis

Legal News

Last month, Michigan Republicans introduced legislation that would clarify the state's medical marijuana law of 2008, tightening requirements before a patient could get doctor approval to use the drug.

Michigan Attorney General Bill Schuette said his office is looking closely at problems with the Michigan Medical Marihuana Act, which details ways people can legally grow, sell or use medical marijuana.

"The law was pitched to voters as a way to help a narrow group of seriously ill people," he wrote in a statement, "but it is so poorly written and riddled with loopholes that law enforcement is having to work overtime to protect the public from bad actors and criminals seeking to take advantage of the goodwill of the voters."

But attorney Michael Komorn, who is president of the Michigan Medical Marijuana Association, said the intent of the law is simple. It's there to protect sick people from arrest, and to protect their caregivers who are trying to secure marijuana for them.

He said the fact that a few people abuse the system doesn't mean it should be altered, nor should politicians punish those who try to be in compliance with the law.

"Law enforcement has no understanding of the patient -- just the fact that for 70 years it's been drummed into us that marijuana is bad and it's illegal," he said. "It's not complicated if they look at it from a patient's point of view ... What's missing is compassion."

The law is written broadly because it's impossible to include every ailment that could be treated with marijuana, he said.

"Sixty-three percent of the people voted for (the law) -- and what's happening now is that a few bureaucrats want to change it."

Komorn, a graduate of Oakland University and the University of Detroit Mercy School of Law, has focused exclusively on Michigan's medical marijuana law for the past three years. He also provides mentoring for juvenile clients who have had involvement with the criminal justice system.

As president of the Michigan Medical Marijuana Association, Komorn has organized patient/caregiver rallies, taken on several pro bono cases and fought to maintain the innocence of his clients using Michigan's Medical Marijuana Act.

He is now working on three separate cases that may help define the future of medical marijuana in Michigan. All are clients who never believed they'd be arrested, but felt they were in compliance of the law, he said.

Komorn said the state has taken in $8 million in user fees since the law went into effect, and virtually none of it has been used to educate law enforcement on the law, and all the facts that it could make it work well.

"The community is begging for a conversation about this," he said. "They want to have some guidance."

He said most people don't realize, for instance, that marijuana loses about 80 percent of its weight when it's cured and dried. That's an important fact some law enforcement officers don't take into consideration when charging people with excessive amounts of the plant, he said.

A qualifying patient can't possess more than 2.5 ounces of marijuana.

"They don't understand the concept of usable material," he said, noting that some officers fail to consider the weight of useless stems and stalks.

Komorn said it's a breach of contract between government and citizens when people pay their $100 to get their medical marijuana cards, only to have them refused across the state.

Komorn believes the legislature should keep the law and create a regulatory scheme that meets their concerns about black market sales. If necessary, he said, offenders should be taken to civil court, not criminal.

"Just like in anything else, you're always going to have a few bad apples," he said. "But in most of these cases, people's intentions are pure. They think they're complying with the law. And law enforcement officers who don't understand the issues are looking for ways to find people in violation of it."

Hearings about the Republican's eight-bill legislation will convene in the fall. The proposed changes would prohibit patient-to-patient transactions, clarify zoning guidelines for dispensaries, and require patients to have an established relationship with a doctor before he or she could approve the use of medicinal marijuana.

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Medical Marihuana Act Q&A

Question: How do I register as a medical marijuana patient with the state?

Answer: "Qualifying patients" must register with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Health Professions, P.O. Box 30083, Lansing, Michigan 48909.

Question: What medical conditions are eligible?

Answer: Patients must suffer from a debilitating medical condition, defined as:

(a) cancer, glaucoma, or positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, or nail patella.

(b) a chronic or debilitating disease or medical condition or its treatment that produces one of more of the following:

(i) cachexia or wasting syndrome;

(ii) severe and chronic pain;

(iii) severe nausea;

(iv) seizures, including but not limited to those caused by epilepsy; or

(v) severe or persistent muscle spasms, including but not limited to, those which are characteristic of multiple sclerosis; or

(c) any other medical condition or treatment for a medical condition adopted by the department by rule. (NOTE: To date, the department has not added to the list by administrative rule.)

Question: Do any age limits apply?

Answer: Registered caregivers must be 21 or older. Patients under age 18 must have the consent of their parent or guardian responsible for medical decisions. The parent or guardian must be the registered caregiver of the minor patient.

Question: What is the fee to apply for participation in the Michigan Medical Marihuana Program (MMMP)? Are there any circumstances under which the fee can be reduced?

Answer: The fee for a new or renewal application is $100, unless a qualifying patient can demonstrate his or her current eligibility in the Medicaid Health Plan or receipt of current SSD or SSI benefits, in which case the application fee is $25.

Question: Why do I need to have a physician sign and date a "Physician Certification" form? Why can't I just provide my medical records?

Answer: According to the Michigan Medical Marihuana Act (MMMA), a physician must state in writing that the patient has a qualifying debilitating medical condition and that medical marijuana may mitigate the symptoms or effects of that condition. The MMMP contacts each physician during the application process to verify the patient is under the physician's care. A signed and dated "Physician Certification" must be current within 3 months of the date of a person's new or renewal application.

Question: Do I get a prescription from my doctor?

Answer: The federal government classifies marijuana as a Schedule 1 drug, which means that licensed medical practitioners cannot prescribe it. Your physician must provide written certification of a "debilitating medical condition" and can only recommend the use of medical marijuana.

Question: How do I become a caregiver?

Answer: The MMMA defines a "Primary Caregiver" as a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marijuana and who has never been convicted of a felony involving illegal drugs. Therefore, the qualifying patient (applicant or registrant) and you must complete a "Caregiver Attestation" to be submitted by the qualifying patient.

Source: Michigan Department of Licensing and Regulatory Affairs

Published: Wed, Jul 13, 2011

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