Panel shows one thing is certain about 2008 medical marijuana law: everyone's confused

By Frank Weir

Legal News

One of the most contentious pieces of legislation approved by voters in years was examined last Friday.

The 2008 Michigan Medical Marihuana Act (MMMA) was the subject of a panel discussion at a meeting of the WCBA's Solo and Small Firm Practice Section.

It has to have been one of the best attended with standing room only in the lower level conference room at 200 North Main.

Law enforcement and municipal representatives were in the audience and the panel included two defense attorneys, a law professor, and a state police officer, moderated by an assistant county prosecutor.

The event showed that there are multiple differences of opinion about the law and its implementation, but there is one belief in common. The law's ambiguities make it difficult for everyone to work with it.

A listing of contentious issues looks like this:

--Are patient-to-patient transfers of marijuana legal or are only primary caregivers allowed under the Act to transfer the drug to card holders?

--Do the provisions of the MMMA, which ban operating a vehicle "under the influence of marijuana" supersede the Motor Vehicle Code which bans the mere presence of marijuana in a vehicle without regard to whether a driver is under its influence?

--Have patients possessing cards allowing use of marijuana been legitimately certified under the law's provisions by a physician who is truly following the law regarding eligible medical conditions?

--Exactly what amount of marijuana can be possessed under the law's "reasonably necessary" provision?

--Are caregivers selling some of the marijuana they grow to non-card holders?

--Should information about both card holders and caregivers be provided to law enforcement so a database can be maintained?

--Can municipalities refuse to uphold the state law claiming that federal law that bans marijuana cultivation, distribution, use and possession preempts it?

--Regardless of the Supremacy Clause, to what extent can federal authorities enforce federal law surrounding marijuana in Michigan?

--Should marijuana be federally classified as a less-dangerous drug and not as a Schedule 1 drug as it is now?

--Given that the Act was voter approved, are state and municipal representatives attempting to thwart the will of the people simply because they are opposed to the use of marijuana no matter by whom or for what purpose?

Although the panel discussion hardly scratched the surface on finding a practicable resolution of these and other issues, coming together to "hash" it out is the only approach according to Cooley Law School Professor Gerald Fisher.

Last fall, Fisher authored a "white paper" entitled, "A Local Government View of the Michigan Medical Marihuana Act" which was prepared at the request of the Michigan Municipal League and Michigan Townships Association.

"We must respect that people are suffering who could be benefited by the medical use of marijuana and who are intended to be benefited by the Act. But I think it would be very inappropriate to ignore the interests of the rest of the general public. We have to be concerned with them too," Fisher said.

"So therefore my view of what we need to do is to have the proponents of a broad interpretation of the Act and those concerned about that broad interpretation, to come together and attempt to negotiate revised legislation."

Fisher and panel moderator John Reiser quickly noted that any amendment to the voter-approved legislation would require a three-quarters majority in the state legislature.

Fisher acknowledged that "it's very difficult to get even a simple majority let alone three-quarters. But if we don't get something enacted, everyone suffers."

Fisher's analysis of the MMMA is that it has created "parallel universes" operating side by side.

"The Act allows the cultivation, distribution, and use for certain individuals with cards while under the general applicable law, the same activities are criminal violations for all others without cards."

And he added that on top of the co-existing universes, "we have an act that is extremely ambiguous in many important respects."

He noted that currently it is difficult to distinguish between "those people who are operating permissibly and those who are criminal violators because of the ambiguities, omissions, or intentional provisions in the act."

Assistant Washtenaw County Prosecutor Reiser stated that, "we aren't always talking about little old ladies in wheel chairs here," and turned to a 15th District Court prosecutor and asked her who she is seeing in court for alleged violations of the MMMA.

She responded, "I'm seeing young adults and college students who appear to be healthier than me."

In completing his portion of the discussion, Fisher said that in the absence of legislation to better define the Act, "over 100" communities have declared "moratoria" on allowing the implementation of the Act in their communities and local ordinances and initiatives to define the Act's implementation "can come around the corner quickly."

He said that some communities are using a licensing and zoning approach similar to that used in past battles against "adult bookstores" and federal authorities have been sending signals that they may be taking a more aggressive approach to enforcement of federal law.

But criminal defense attorney Matt Abel, who vigorously defended the Act at the discussion, feels that all the hue and cry is just the same old anti-drug hysteria that has been wrongly aimed at marijuana for decades.

"Cannabis remains both a state and federal Schedule 1 drug, that it's highly toxic and highly addictive. Both of those claims are wrong," Abel said.

"Don't let anyone tell you there are no medical uses. There's plenty of evidence, thousands of studies. The bottom line is that we just don't want people smoking pot."

Abel acknowledged that caregivers locations, the "patient to patient" shops and "compassionate apothecaries" should be located off the main streets but "tell your children that this is medicine and it is safer than alcohol. Its purpose is to help patients. These are the weakest members of our society."

Local defense attorney Denny Hayes also felt there has been a continuing prejudice against marijuana that is now being played out in what he sees as gross resistance against the Act by law enforcement and governmental representatives.

"They are trying to figure out how to thwart the Act, to garrote it, slice it, and dice it," Hayes said. "This is a useful medicinal product that brings aid to people who have debilitating conditions. Every week there are more anecdotal stories that suggest governmental people are operating with their heads in the sand."

Hayes added that everyone needs to remember that 63 percent of the voters approved the Act in 2008.

"Why can't the government figure this out? The people know this is a useful and beneficial product for certain people based on their experience. Why can't we get the message?"

Michigan State Police Lt. Jerry Cooley brought the law enforcement perspective to the panel.

"If someday I had cancer and I needed it, I would hope I could have it," Cooley said of medicinal marijuana. "If it is used the correct way, then we have no problem with it but its recreational use and abuse that law enforcement has a problem with."

Cooley recited a number of "dangers" that are occurring with the Act's implementation including a recent robbery of a caregiver dispensary in downtown Ann Arbor.

"The dispensary was robbed by three masked men. People were tied up and guns held to their heads. Criminals know there are drugs and money there."

He cited recent Detroit-area news reports about a robbery-murder in a suspected growing operation. "Maybe the operation was completely legal, but problems can come out of that."

One large difference of opinion between Act proponents and law enforcement is the creation of a database of growers and card holders.

Currently, there is no way for officers to check to see if an individual holds a card allowing use legitimately at the time of, say, a traffic stop. And police have little idea when a legitimate dispensary has set up shop.

Police say there is risk to officers and to card holders when police come in contact with potential illegal marijuana use since they have no idea if they are dealing with medical users and growers or an illegal drug operation with the potential for violent resistance.

There is even confusion as to what constitutes the "reasonably necessary amount" of the drug that is allowed to be possessed by legitimate card holders.

Further, law enforcement and municipalities are concerned that they have next to no information about card holders and caregiver growers making it difficult, they say according to Fisher, to enforce plumbing and electrical codes.

"I'm not saying that this can't be a good thing but there a lot of issues that law enforcement is running into," Cooley said. "We aren't trying to get rid of it but it needs to be looked at and straightened out."

Cooley was adamant that "it would be a lot easier" if law enforcement had information about growers "otherwise we have to bang the door down and people are put at risk. If I can just see that you are a caregiver grower, then I can go and talk you. We can go in once a year for instance and make sure you are complying with the state statute.

"There'd be a lot less of law enforcement banging doors down."

Caregivers respond that the last thing they need is to have their locations made a matter of public record for all to see thereby attracting robbery and violent crime. And Abel feels any list of caregiver growers and a database of card holders "violates privacy provisions."

Cooley had the last word by saying, "It isn't that government doesn't care. We are just trying to get it right," he said.

"No one has all the answers right now. We are all trying to get it the right way and that's why it's good to have these forums."

Published: Thu, May 19, 2011

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