overview of the michigan medical marihuana act...require department of community health to establish...

Overview of the Michigan Medical Marihuana Act

Presented by Attorney Eldor Herrmann, Jr.

Monday, September 19Butman-Fish Library

Michigan Medical Marihuana Act

● Purpose of today's presentation is not to advocate a position

for or against the act, but to objectively explain how the

courts have interpreted the

● Background – Proposal 08-1● What MMMA Does and Does Not Do● Key Definitions● Section 4 Protections● Section 8 Protections● Scope – Section 7● Michigan Court Interpretation of MMA● Questions & Answers

Proposal 08-1

A LEGISLATIVE INITIATIVE TO PERMIT THE USE

AND CULTIVATION OF MARIJUANA FOR SPECIFIED MEDICAL CONDITIONS

Proposal 08-1

The proposed law would:

Proposal 08-1

● Permit physician approved use of marijuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health.

Proposal 08-1

The proposed law would:● Permit physician approved use of marijuana by registered

patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health

● Permit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility.

Proposal 08-1

● Permit physician approved use of marijuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health

● Require Department of Community Health to establish an identification card system for patients qualified to use marijuana and individuals qualified to grow marijuana.

● Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.

What MMMA does and does NOT do.

Does not create a right to possess or use marijuana, But it does act an affirmative defense

Does not make medical marijuana use legal

Does not change marijuana as a schedule 1 drug

Does not change marijuana as a schedule 1 drug--

Still considered to have “a high potential for abuse and has no accepted medical use in

treatment in the United States or lacks accepted safety for use in treatment under

medical supervision.” MCL 333.7211.

The Findings & Declaration section (§ 2)

Does state that marijuana has beneficial medical use

The Findings & Declaration section (§ 2)

Declares that marijuana has beneficial medical use

Finds that 99% of marijuana arrests in US are made under state laws

Michigan Medical Marihuana Act The Findings & Declaration section (§ 2)

Declares that marijuana has beneficial medical use

Finds that 99% of marijuana arrests in US are made under state laws

Finds that Federal law prohibits any use of marijuana but states are not required to

enforce Federal law

Key Definitions

● Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.

Key Definitions● Debilitating medical condition

Key Definitions● Debilitating medical condition● Enclosed, locked facility

Key Definitions● Debilitating medical condition● Enclosed, locked facility● Medical use

Key Definitions● Debilitating medical condition● Enclosed, locked facility● Medical use● Primary caregiver

Key Definitions● Debilitating medical condition● Enclosed, locked facility● Medical use● Primary caregiver● Qualifying patient

Section 4 Protections

Section 4 Protections1) Qualifying Patient §4(a)

a) Not subject to arrest, prosecution or penalty

b) Not denied any right or privilege

c) Cannot be subject to employment discipline

d) Cannot be denied professional licensing or be subject to professional discipline

e) Rebutable presumption that qualifying patient is engaged in the medical use of marijuana - §4(d)

f) PROVIDED: possesses a registry identification card, does not possess more than 2.5 ounces or more than 12 plants, that is stored in an enclosed locked facility

Section 4 Protections2) Primary Caregiver §4(b)

a) Same as qualifying patient

b) PROVIDED: possesses a registry identification card, does not possess more than 2.5 ounces or more than 12 plants per connected qualifying patient, that is stored in an enclosed locked facility

c) May be compensated for costs associated with assisting qualified patients (Does not constitute the “sale” of marijuana - §4(e)

Section 4 Protections3) Protections for others

a) Child custody - §4(c)

b) Physicians not subject to arrest, prosecution, penalty, right privilege or professional discipline for providing certifications - §4(f)

c) Property used in connection with medical marijuana cannot be seized or forfeited - §4(h)

Section 8 Protections

Section 8 Protections1) Patient and his/her primary caregiver can assert a medical marijuana as an affirmative defense provided:

a) Physician has stated that patient is like to receive therapeutic or palliative benefit in treating serious or debilitating medical condition.

BUT physician must make a FULL assessment of patient’s medical history and present condition and must be a BONA FIDE physician-patient relationship

b) Possesses no more marijuana that is reasonably necessary to guarantee an uninterrupted supply

Section 8 Protections2) Requires a motion and an evidentiary hearing

a) Court can deny the motion but still allow medical marijuana defense at trial or it can deny the motion and forbid medical marijuana defense at trial

Scope – Section 7

Scope Section 7 1) Medical marijuana use is only allowed to the

extent that it is carried out in accordance with the Act

Scope Section 7 2) MMMA specifically does not permit:

a) being under influence of marijuana when doing so

- would create an unsafe condition

- would constitute negligence or professional malpractice

- possess or use marijuana on a school bus, on school grounds, or in a correctional facility

- use marijuana in public

- operate a vehicle, motorboat, or aircraft while under the influence of marijuana

Scope Section 7 3) MMMA does not require government or private healthcare provider or insurer to cover the cost of medical marijuana

Scope Section 7 4) MMMA does not require an employer to

accommodate and employee’s use of marijuana or his/her’s being under the influence of marijuana in the workplace

Michigan Court Interpretation of MMMA

Michigan Court Interpretation of MMMA1) People v Redden - First case interpreting the

MMMA 2) People v King - Beware, must strictly abide by

possession and storage requirements

possession and storage requirements3) People v Anderson – Section 8 reasonable

amount case

possession and storage requirements3) People v Anderson – Section 8 reasonable amount

case4) People v Kolanek & People v Reed - Need to

possess registry card or physician’s statement before the alleged offense

possession and storage requirements3) People v Anderson – Section 8 reasonable amount

case4) People v Kolanek & People v Reed - Need to

possess registry card or physician’s statement before the alleged offense

5) People v McQueen - MMMA does not authorize medical marijuana dispensaries

Questions???

Thank you for attending!

Contact InformationEldor R. Herrmann, Jr

989-372-1154http://SaginawCriminalLaw.com

Michigan LARA, Bureau of Health Professions, P.O. Box 30083Lansing, MI 48909

www.michigan.gov/lara

Michigan Medical Marihuana Act Resources:

Michigan LARA: http://www.michigan.gov/lara/0,1607,7-154-27417_51869_52140---,00.html

http://www.livingstondaily.com/article/20110916/NEWS01/109160318/Court-Docket-Owners-employee-dispensary-waive-hearing?odyssey=mod|newswell|text|Frontpage|s

http://newburglaw.com/2011/08/24/michigan-court-of-appeals-patient-to-patient-%E2%80%9Csales%E2%80%9D-of-medical-marihuana-are-unlawful/

http://www.mmmrmag.com/editorial.html

http://www.michiganmedicalmarijuanacertification.com/

Judge Rules MMMA Unconstitutional: http://www.duimaze.com/blog/judge-mark-w-somers-and-the-michigan-medical-marijuana-act-reckless-judicial-activism/

http://www.theoaklandpress.com/articles/2011/04/26/news/doc4db60008b401f821192483.txt

Image Credits

medicalmarijuanablog.com

http://www.alpenanow.com/index.php/2011/07/12/city-planning-commission-holds-public-hearing-on-medical-marijuana/

http://the420times.com/category/exclusive/politics/page/3/

http://michiganmedicalmarijuana.org

stopthedrugwar.org

thcfinder.com

http://www.tannerfriedman.com/blog/?p=1304

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