Law Talk: Marijuana law guide fits in your pocket
Ever wondered when a marijuana seed legally becomes a plant?
Wondered how someone gets their medical marijuana?
Curious about whether having medical marijuana entitles police to search your home, car or person without a warrant?
Those answers and others may come from local attorney Bruce Alan Block who specializes in representing defendants accused of marijuana offenses.
Block has written and is selling “Michigan Medical Marihuana Act: A Guide for Patients and Caregivers.”
The pocket-sized manual outlines the law in layman’s terms and looks at the vagaries of a law considered poorly written and lacking clarity since it was passed by 63 percent of voters in 2008.
“It’s not a ‘how to’ for growing,” said Block. “I’m no advocate.”
Block said he sees clients who either use medical marijuana or are so-called caregivers and have no prior run-ins with the law but suddenly find themselves facing drug charges.
“This is just cutting through the misinformation,” Block said. “It’s amazing, the stuff you see on Internet blogs.”
Block said the law is so convoluted, even he needs a quick reference for dealing with it, which led him to write the guide for Michigan law.
“If you have this, you won’t need me,” Block said.
The law is so vague, that its enforcement is inconsistent and can change depending on where it is enforced with some prosecutors going after marijuana, medical or not, with vigor. Other counties are not so quick to prosecute those who appear to be following the law.
Block said West Michigan counties fall in the middle of the enforcement spectrum.
Assistant Prosecutor James Benison is Kent County’s medical marijuana specialist when it comes to law enforcement.
“The difficulty is people who treat the act as if it is decriminalization,” Benison said.
Benison read Block’s guide and finds it generally objective and explains the law as it currently stands.
Of course, things could look very different by the end of 2012, The Michigan Supreme Court is looking at a pair of cases related to medical marijuana and will likely issue opinions over the summer. Those cases include what constitutes a proper area for growing the marijuana and whether cases from before the law passed in November 2008 are able to use the medical marijuana defense.
But the true game changer could come with the November ballot if advocates are able to collect the 322,000 signatures needed to put a repeal of marijuana prohibition up for a vote.
In the meantime, Block says people need to take great care because, while Michigan has a law, the federal government does not recognize the state laws and continues to prosecute where possible, even in states like California, Colorado and Vermont.
Block outlines the 10 Commandments (plus one) of medical marijuana that includes advice to put plenty of cash aside for lawyer fees, pay taxes on any monies received and “when in doubt (about what'slegal) – don’t.”
So, what constitutes a plant? A seed is not a plant, but once it sprouts – even though completely unusable—it is considered a plant.
Where does someone get their marijuana? It must be provided by a caregiver who is growing for a single patient in one area. The safest route is for the marijuana card holder to grow it themselves in the allowed amounts.
Police cannot search a house or car simply because someone has a medical marijuana permit. There is no such thing as compliance officers, and police must gain a warrant, consent from the resident or owner or have other probable cause.
Block said there is a desperate need for the law to get some definition from the legislature or the State Supreme Court, but he believes it is a coin toss whether it will happen.
The guide is available for $15 at Block’s website.
- Happenens again... Surprise Suprise...
Arapahoe County District Judge Carlos Samour dismissed the case against Dr. Manuel Aquino-Villaman following a hearing Friday. Samour said Aquino-Villaman's actions were lawful under the Colorado Constitution, according to a court summary of the hearing. He also said the charges should be dropped because officials failed to preserve key evidence. Aquino-Villaman had been charged with felony conspiracy to distribute marijuana, in addition to forgery and attempt to influence a public servant.
It is rare for a judge to dismiss charges before trial, but this is the second time it has happened for a medical-marijuana doctor this year in Arapahoe County. In May, a different judge dismissed the case against Dr. Toribio Robert Mestas, also saying that the doctor's actions were protected by the Colorado constitution.
The Arapahoe County district attorney's office declined to comment on the most recent dismissal, saying it has not yet decided whether to appeal.
Attorney Lauren Davis, who represented Aquino-Villaman, said both cases show a hostility toward medical marijuana by prosecutors in the 18th Judicial District, which includes Arapahoe County.
"Their bias against medical marijuana in Arapahoe and Douglas counties is an affront to the constitutional rights of patients and recommending physicians," Davis said.
Although the doctors — two of more than 1,000 physicians who have recommended medical marijuana in Colorado — are no longer facing criminal charges, neither is currently practicing medicine.
In March, Aquino-Villaman voluntarily surrendered his license in the midst of a state Medical Board investigation into a marijuana recommendation he wrote for a pregnant woman. Aquino-Villaman denied wrongdoing and said the woman never disclosed her pregnancy. But his attorney said Aquino-Villaman, now 71, could not afford to continue fighting for his license.
Last month, Mestas agreed to temporarily stop practicing while he is the subject of a Medical Board investigation. A public document about the investigation says only that a Medical Board inquiry panel "had significant concerns that (Mestas) provided substandard care to multiple patients."
In both Aquino-Villaman's and Mestas's criminal cases, undercover police officers posed as patients who complained of injuries or other aches in attempting to obtain a medical-marijuana recommendation. After brief exams, the doctors provided the recommendations.
Prosecutors argued that the exams were substandard and that the officers never complained of "severe pain" — the condition for which they were recommended marijuana. But the judges ruled the doctors' diagnoses were reasonable based on the officers' statements.
"The presumption is that doctors are entitled to rely on what patients tell them in the course of an examination," Davis said. "It's not the doctor's job to play policeman."
John Ingold: 303-954-1068 or email@example.com
Read more: Medical-marijuana case against Aurora doctor dismissed - The Denver Post http://www.denverpost.com/news/marijuana/ci_19542409#ixzz1gUpCPTtT
Click on Magazine to see December 2011 Issue!!!!
Brian Dickerson: Schuette wages war against the people's law
If there's anything Bill Schuette has established in his first year as Michigan's attorney general -- besides an appetite for media attention rivaling that of Sarah Palin or Geoffrey Fieger -- it's that he won't stand for the federal government to trample on the rights of the people of Michigan.
Unless, or course, the right in question is one that Michigan's top law enforcement official never cared for in the first place. In which case any pretext for ignoring, circumventing or violating the state law that guarantees it is welcome.
I speak, of course, of Schuette's maniacal campaign to single-handedly repeal the Medical Marijuana Act that Michigan voters adopted in 2008 -- by a considerably wider margin (63%-37%), it should be noted, than Schuette enjoyed in his own victory (53%-42%) over a weak Democratic opponent two years later.
Since then, virtually everyone affected by the MMA -- police, state and federal prosecutors, medical marijuana users and prescribing physicians -- has come to understand that the law as written is seriously flawed and requires a legislative overhaul to spell out more clearly the rights and responsibilities of all involved.
State lawmakers in Lansing are already at work on such an overhaul. And that's good for everyone -- as long as legislators keep in mind the objective Michigan voters embraced in 2008, which was to authorize the therapeutic use of marijuana by patients suffering from certain medical conditions or symptoms.
Abuse of authority
Schuette stands proudly among the minority of Michiganders who opposed the MMA and continue to lobby for its repeal. Nothing wrong with that.
But the AG has also exploited his office to target medical marijuana users and providers -- precisely the people Michigan voters sought to protect from criminal prosecution when they adopted the MMA. That's a flagrant abuse of authority -- one that undermines respect for the law in general, not just the statute Schuette seeks to subvert.
In his latest initiative, Schuette has opined that police have a legal obligation not to return pot seized from licensed medical marijuana patients because possession of marijuana is still prohibited under federal law. (Never mind that the U.S. Justice Department, which has bigger fish to fry, especially in Detroit, has made clear its lack of interest in prosecuting patients in Michigan and other states that have authorized medical marijuana.)
In fact, the AG warned in an opinion issued late last week, officers who return illegally confiscated marijuana (in seeming compliance with a provision of the MMA that specifically bars its seizure from medical users licensed by the state) are themselves risking criminal prosecution as drug dealers.
Really? And what sort of prosecutor would file charges against a police officer for that? Even Schuette isn't that deranged.
Uphold the law
Schuette's respect for the superiority of federal law, you may be assured, is entirely situational. When the federal law in question is one he opposes -- such as the American Health Care Act of 2009, or EPA rules designed to limit air pollution -- he has been in the vanguard of Republican attorneys general suing to stop it. He's been a ranking member of the executive branch -- that's the one that was established to enforce the law, not to write it -- for almost a year, but he can't stop acting like a legislator.
I have no dog in the MMA fight. I don't use marijuana, medically or recreationally. And I share the skepticism of those who worry that the MMA, which depends on a black-market distribution network that bears no resemblance to the one used to distribute every other prescription drug authorized by law, is problematic in its current form.
But more than 3 million Michigan residents have made it clear they want licensed patients to be able to use marijuana for medicinal purposes. That's almost twice as many as voted for Schuette in 2010.
So Schuette's campaign to emasculate the MMA isn't just unprincipled; it's an affront to democratic rule -- and to the rule of law he took an oath to uphold.
Attorney General: Police can seize medical marijuana
Here's a solution, DON'T TAKE OUR DAMN MEDICINE. GROW YOUR OWN. -UA
A provision of the Michigan medical marijuana law that prohibits police from seizing pot possessed by licensed medical marijuana patients is invalid because it conflicts with federal law, Attorney General Bill Schuette said in an opinion released today, one in which he warns officers who return marijuana to patients could be prosecuted as dope dealers.
“It is ‘impossible’ for state law enforcement officers to comply with their state law duty not to forfeit medical marijuana, and their federal law duty not to distribute or aid in the distribution of marijuana,” according to the opinion.
Schuette was responding to a request from state Rep. Kevin Cotter, R-Mt. Pleasant, who asked whether police were required to return marijuana to medical marijuana patients who had been arrested or detained upon their release.
An opinion from the attorney general is generally considered binding legal opinion, especially on state agencies like the Michigan State Police, unless and until it is rejected by a judge.
It is the latest in a series of moves by the attorney general to narrow the scope and application of the law, approved by Michigan voters in 2008. Schuette, then a recently-retired state appeals court judge, led the campaign in opposition to the initiative.
When a state Court of Appeals decision came down Aug. 23 prohibiting “patient-to-patient sales” of medical marijuana, a growing network of medical marijuana dispensaries were suddenly thrown into a state of limbo.
The court determined that defendants Brandon McQueen and Matthew Taylor, owners of Mt. Pleasant-based Compassionate Apothecary, were not acting within the boundaries of the 2008 Michigan Medical Marihuana Act by allowing sales of medical marijuana and retaining up to 20 percent in profit.
The appellate court opinion overturned an Isabella County Circuit Court decision and determined the defendants in fact were in violation of the Public Health Code and could be shut down as a public nuisance.
According to their attorney, however, there is no provision in the state’s Public Health Code making it illegal to sell marijuana – medical or otherwise.
“There is no offense in the PHC that mentions the words ‘sales,’” said Matthew Newburg, from Newburg Law, PLLC in Lansing.
Newburg said he and attorney Mary Chartier, from another Lansing law firm, are planning an appeal of the appellate court decision to be reviewed by the Michigan Supreme Court.
Of course, federal drug laws stipulate that marijuana remains illegal and is listed as a Schedule 1 narcotic, but Newburg said there is no state law addressing sales. The Michigan Medical Marihuana Act, also, does not address sales or dispensaries.
“Whether money exchanged hands as part of the dispensary’s normal operations is irrelevant,” he said.
Although the Michigan Medical Marihuana Act and the state’s Public Health Code directly conflict with one another, Newburg said the MMMA provides an exception, more or less, for licensed patients and caregivers. He said there are provisions in the Act that safeguard patients and caregivers from arrest and prosecution.
Newburg said they are gathering information for their appeal and to determine the best course of action.
In Ypsilanti, the 3rd Coast Compassion Center closed their doors for one day after the Court of Appeals decision was announced. Since then, the first medical marijuana dispensary in the state has been operating normally.
But Jamie Lowell, director for 3rd Coast, said they are still trying to determine what the court ruling means for them. The dispensary operates as a non-profit organization that accepts private donations in order to pay bills and salaries
Lowell echoed Newburg’s comments saying that the Michigan Medical Marihuana Act didn’t need to address the selling of medical marijuana because it was never illegal according to state law.
“What the MMMA did carve out was an exception for the growing and manufacturing for licensed patients and caregivers,” said Lowell.
Appeals court: Medical marijuana users must have I.D. to grow plants
With their ruling in a Montmorency County case, appellate judges upheld a Circuit Court decision that Brian Bebout Reed could be tried for manufacture of marijuana even though he’d gotten his user's card.
According to court records, Reed, who had chronic back problems from a degenerative disc disease, was trying to find a doctor to approve marijuana use in August 2009 when a narcotics team spotted six plants growing on his property.
Later that month, he got a doctor’s certification and received his user’s card in October. Ten days after he got his card, he was arrested for growing the marijuana.
He argued the charges should be dismissed because he’d become a registered user before his arrest.
The appellate court rejected that position: “It would qualify as absurd if it were possible to assert the …affirmative defense by obtaining a physician’s statement after the crime has been committed but before an arrest has been made.”
Without the card at the time of the alleged crime, there is no immunity "from arrest, prosecution, or penalty,” the court said.
Last week, the appellate court outlawed retail sales at marijuana dispensaries. In that case, the court ruled that a dispensary's business model of charging clients a fee to store marijuana that could be sold to any registered patient was illegal.