Michigan Medical Marijuana Lawyer
Michigan Medical Marijuana Law
Michigan has enacted a state medical marijuana law, the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. “The purpose of the MMMA is to allow a limited class of individuals the medical use of marijuana, and the act declares this purpose to be an ‘effort for the health and welfare of [Michigan] citizens.’” People v Kolanek, 491 Mich 382, 393–394, 817 NW2d 528 (2012).
The Michigan Supreme Court’s opinion in ter Beek v City of Wyoming, 495 Mich 1, 846 NW2d 531 (2014), appears to suggest that such authorization may be more than a mere shield against arrest and punishment. The ter Beek court ultimately held that the MMMA preempts the broad regulations in the City of Wyoming zoning ordinance and also that the intent of Congress as expressed in the CSA does not have the effect of invalidating the MMMA under the doctrine of federal preemption. Of course, the U.S. Supreme Court could still hold to the contrary.
Effective December 20, 2016, two new acts related to medical marijuana take effect. The Medical Marihuana Facilities Licensing Act, MCL 333.27101 et seq., 2016 PA 281, provides legitimacy and licensure for marijuana growers, processors, transporters, and “provisioning centers,” through a to-be-created Medical Marijuana Licensing Board. The Marihuana Tracking Act, MCL 333.27901 et seq., 2016 PA 282, requires the Department of Licensing and Regulatory Affairs (LARA) to establish a system to monitor medical marijuana transactions and verify registry identification cards.
"Debilitating Medical Condition"
The overarching thrust of the MMMA is to relieve persons from the effects of a “debilitating medical condition.” The 2008 ballot used to enact the MMMA recited that the proposition before the voters was whether to “[p]ermit 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” (now the Department of Health and Human Services). See the 2008 state ballot proposal 08-1.
A closer reading of the definitions in MCL 333.26423 reveals that the meaning of debilitating medical condition, which serves as the basic threshold for protection as a patient under the MMMA, includes any one or more of the following:
Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions.
A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following:
cachexia or wasting syndrome; severe and chronic pain;
severe nausea;
seizures, including but not limited to those characteristic of epilepsy; or
severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.
Any other medical condition or its treatment approved by the [Department of Health and Human Services], as provided for in [MCL 333.26426(k)].
"Written Certification"
A written certification for a registry card must be provided by a physician and is defined at MCL 333.26423(q) as:
[A] document signed by a physician, stating all of the following:
The patient’s debilitating medical condition.
The physician has completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation.
In the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.
The written certification must be the product of a bona fide physician-patient relationship. MCL 333.26424(g). A “bona fide physician-patient relationship” is:
A treatment relationship between a physician and a patient where the physician has reviewed the patient’s medical records and assessed the patient’s medical history and condition, the physician has created and maintained a patient file, the physician has a reasonable expectation of providing follow-up care to the patient, and
if the patient has given permission, the physician has notified the patient’s primary physician of the medical marijuana certification. MCL 333.26423(a).
The certification need not specify the quantity of marijuana the patient is to consume nor specify the frequency or mode of consumption recommended. In other words, the physician is not prescribing, in the customary sense, the medical use of marijuana but stating that marijuana will help the patient with the debilitating condition or its symptoms. Using a prescription in this context would not be feasible in light of the federal and state classification of marijuana.
Registry Identification Card Required in Michigan
Once the patient has secured a written certification from a physician, a patient may obtain a registry identification card (ID card) by:
Filing an application with LARA;
Presenting the certification with the applicable fee; and
Providing the patient’s name, address, and date of birth.
Unless the patient is homeless, in which case no address is required.
The patient also must provide LARA with the name, address, and phone number of the patient’s physician and the name, address, and date of birth of the patient’s caregiver, if any, and must specify whether it is the patient himself or herself (or a caregiver) who will be permitted to possess marijuana plants for the patient’s use. MCL 333.26424, .26426.
How Much Marijuana Can A Patient Possess in Michigan?
A qualifying patient may possess an amount of marijuana that does not exceed a combined total of 2.5 ounces of usable marijuana and usable marijuana equivalents and, if the patient has not designated a primary caregiver to cultivate marijuana for him or her, the patient may cultivate 12 marijuana plants that must be kept in an enclosed, locked facility. MCL 333.26424(a) (amended by 2016 PA 283).
In lieu of cultivating his or her own marijuana plants, a patient may designate a caregiver to perform this function.
Medical Marijuana Caregiver Law in Michigan
When the designation is made, LARA performs a basic screening of the designated caregiver.
A primary caregiver is defined in the MMMA as:
A person who is at least 21 years old;
Has agreed to assist with a patient’s medical use of marijuana; and
Has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or assault. MCL 333.26423(k).
LARA has acknowledged that when it checks on a prospective caregiver, it does not check out-of-state records on past convictions.
A caregiver may possess an amount of marijuana that does not exceed a combined total of 2.5 ounces of usable marijuana and marijuana equivalents for each qualifying patient to whom he or she is connected through LARA’s registration process and 12 marijuana plants kept in an enclosed, locked facility for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marijuana for him or her, and any incidental amounts of seeds, stalks, and unusable roots. MCL 333.26424(b).
The statute provides a method for determining usable marijuana equivalency for marijuana-infused products. MCL 333.26424(c), amended by 2016 PA 283.
Each qualifying patient can have no more than one primary caregiver, and a primary caregiver may assist no more than five qualifying patients with their medical use of marijuana. MCL 333.26426(d).
Can Medical Marijuana Information Be Released to the Police in Michigan?
No information about the patient and caregiver submitted for an ID card is provided, nor may it be disclosed, to state, county, or local law enforcement. MCL 333.26426(h).
Rather, the full extent of information that may be disclosed to law enforcement involves a verification provided by LARA to law enforcement and to the database created pursuant to MCL 333.27903 on whether an ID card is valid, “without disclosing more information than is reasonably necessary to verify the authenticity of the ID Card.” MCL 333.26426(h)(3).
The law has, however, been amended to provide for photo ID cards if LARA adopts a rule requiring them. MCL 333.26426(e)(5).
How Do Michigan Medical Marijuana Laws Apply to Minors?
A minor under the age of 18 may be a patient with the certification of two physicians submitted by the minor’s parent or guardian along with the parent or guardian’s consent to:
Allow the minor’s medical use of marijuana; AND
To serve as the minor’s primary caregiver. MCL 333.26426(b).
Where to Keep Michigan Medical Marijuana Plants?
Once acquired, plants must be kept in an “enclosed, locked facility,” which means “a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other security devices that permit access only by” a registered caregiver or registered patient. MCL 333.26423(d), .26424(a)–(b).
Ambiguities in this definition have generated the need for judicial interpretation, including the meaning of other enclosed area and security devices and the question of who may have access to the plants being stored in the enclosed, locked facility.
Prohibited Acts Under Michigan's Medical Marijuana Law:
Expressly prohibited acts when under influence of marijuana:
Undertaking any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;
Possessing or using marijuana on a school bus or on school grounds;
Smoking marijuana on any form of public transportation or in any public place; and
Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marijuana. MCL 333.26427(b).
The act may not be construed to require an employer to accommodate the ingestion of marijuana in any workplace or to accommodate any employee working while under the influence of marijuana. MCL 333.26427(c)(2).
Similarly, the act may not be construed to require a private property owner to lease residential property to any person who smokes or cultivates marihuana on the premises if the prohibition is in the written lease. MCL 333.26427(c)(3), added by 2016 PA 546 (eff. Apr 10, 2017).
Legal Defenses Under Michigan's Medical Marijuana Law:
The supreme court in People v Kolanek, 491 Mich 382, 817 NW2d 528 (2012), divided the MMMA into two distinguishable parts based on whether the respondent is claiming relief as a “qualifying patient” under section 4, MCL 333.26424, or claiming relief as a “patient” under section 8, MCL 333.26428.
A qualified patient who holds a registry identification card may claim relief under section 4 and has “broad immunity from criminal prosecution, civil penalties, and disciplinary actions.” 491 Mich at 395.
On the other hand, a person who claims relief under section 8 may assert an entitlement to narrower relief, in the form of an affirmative defense to criminal charges involving marijuana for its medical use.
A party is entitled to the affirmative defense under section 8 by establishing that:
“[A] physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana,’
The patient did not possess an amount of marijuana that was more than ‘reasonably necessary’ for this purpose, and
The patient’s use was ‘to treat or alleviate the patient’s serious or debilitating medical condition or symptoms.’” 491 Mich at 398–399 (quoting MCL 333.26428(a)(1)–(3)).
The section 8 affirmative defense also requires a showing that MCL 333.26427(b) was not violated.
However, Kolanek also held that it is not necessary to demonstrate compliance with section 4 of the MMMA to assert an affirmative defense under section 8. 491 Mich at 401–402.
Michigan Medical Marijuana Law's "Section 4 Immunity"
In People v Hartwick, 498 Mich 192, 870 NW2d 37 (2015) (combined for consideration with People v Tuttle), the court held that the availability of section 4 immunity, MCL 333.26424, is a question of law to be decided before trial.
The trial court acts as the trier of fact, subject to review on a “clearly erroneous” standard.
Section 4 immunity is to be considered for each charged offense.
For each alleged offense, a defendant must show the following by a preponderance of the evidence:
(1) possession of a valid registry identification card,
(2) compliance with the volume limitations,
(3) storage of any marijuana plants in an enclosed, locked facility, and
(4) engagement in the medical use of marijuana.
Additionally, if a defendant shows by a preponderance that, at the time of the offense, he or she possessed a valid registry identification card and had complied with volume limitations, there is a rebuttable presumption that the defendant was engaged in the medical use of marijuana.
The prosecution may rebut this presumption with evidence that the defendant’s conduct was not for the purpose of alleviating the registered qualifying patient’s debilitating medical condition.
The presumption cannot be rebutted, however, by evidence regarding conduct of another (e.g., the conduct of the defendant’s caregiver), although footnote 59 suggests that a caregiver has no immunity where the caregiver knows the patient is abusing marijuana.
Further, the presumption cannot be rebutted by evidence of an unrelated drug crime committed by the defendant.
The court also held that, for the affirmative defense under section 8, MCL 333.26428, a defendant must offer prima facie evidence of each element of section 8(a) to the trial court.
If uncontested facts establish the presence of all elements of the defense, the case must be dismissed.
If the defendant cannot provide sufficient evidence so a reasonable jury could find all elements were established, the defense cannot be used. And if there is sufficient evidence to establish all elements of the defense, but material facts are still disputed, the case and affirmative defense go to the fact-finder.
If prima facie evidence is presented, the defendant must prove each element by a preponderance of the evidence.
This is a more difficult task than establishing section 4 immunity because possession of a valid registration identification card or even an MMMA-compliant quantity of marijuana does not satisfy the “onerous” elements of a section 8 defense.
In People v Nicholson, 297 Mich App 191, 822 N.W.2d 284 (2012), the court of appeals distinguished arrest and prosecution under section 8.
The court held that defendant was not immune from arrest because his application paperwork for a registry identification card was not reasonably accessible at the location of his arrest.
However, the court concluded that because defendant did possess a registry identification card that had been issued before the arrest for which he was being prosecuted, he was immune from prosecution unless there was evidence to show that his possession of marijuana at the time was not in accordance with medical use as defined in the MMMA or otherwise not in accordance with its provisions.
What is Michigan's Marijuana Facilities Licensing Act?
The Facilities Act creates a governor-appointed five-member “medical marijuana licensing board” within LARA. MCL 333.27301.
The board’s duties include deciding license applications, promulgating rules to implement the Facilities Act, providing for and collecting fines for violation of the Facilities Act, and overseeing marijuana facilities to ensure that marijuana-infused products meet health and safety standards. MCL 333.27302.
The board has jurisdiction over the operation of all marijuana facilities and is authorized to investigate applicants and marijuana facility employees, inspect marijuana facilities and their records, investigate alleged violations of the act or rules, and require records be kept at marijuana facilities. MCL 333.27303.
Regulation is based on the various phases of activity involved in making marijuana available to patients: growers, processors, provisioning centers (i.e., dispensaries), and safety compliance facilities. Beginning 360 days after the effective date of the act, applicants may seek state operating licenses. MCL 333.27401. Under the Facilities Act, the following types of licenses are available:
A grower cultivates, dries, trims, or cures and packages marijuana for sale to a processor or provisioning center.
A processor purchases from a grower and extracts resin or creates a marijuana-infused product for sale.
A provisioning center purchases from a grower or processor and sells, supplies, or provides marijuana to registered qualifying patients, either directly or through registered primary caregivers.
A safety compliance facility receives marijuana from a facility or primary caregivers and tests it for contaminants and for tetrahydrocannabinol and other cannabinoids. MCL 333.27102.
The Facilities Act authorizes licensees who comply with the act to grow marijuana; purchase, receive, sell, transport marijuana from or to a licensee or agent, a registered qualifying patient, or a registered primary caregiver; or possess marijuana, process marijuana, transport marijuana, or receive or provide compensation for products or services. MCL 333.27201(2).
The Facilities Act also insulates licensees from criminal penalties under state law or local ordinances, state or local civil and criminal prosecution, search or inspection (except for those authorized in the act), seizure of marijuana, and other sanctions. MCL 333.27201(1).
The Facilities Act also protects owners and lessors of property where a marijuana facility is located against certain criminal and civil penalties. MCL 333.27201(3).
Registered qualifying patients and primary caregivers are not subject to criminal prosecution or sanctions for purchasing from a provisioning center if the quantity purchased is within the limits established by the MMMA. MCL 333.27203.
Licensees must adopt and use a third-party inventory control and tracking system that interacts with the statewide monitoring system to be established under the Marihuana Tracking Act, MCL 333.27903. MCL 333.27207.
That tracking system must be able to track all marijuana plants and products, patient and caregiver purchase totals, and batch information. MCL 333.27207.
Importantly, in order for any applicant to receive a state license, the local municipality must have adopted an ordinance authorizing one or more of the five types of marijuana facilities. MCL 333.27205.
The municipality may limit the number of each type of facility. Id. No municipality is required to adopt such an ordinance; if a municipality does not want any of these facilities, it may simply decline to adopt any ordinance.
A municipality need not allow all kinds of facilities.
If the municipality does wish to adopt an ordinance, the only limitation is that it cannot impose regulations regarding the purity or pricing of marijuana or interfere or conflict with the state licensing regulations.
A marijuana facility may not operate in a municipality unless that municipality has adopted an ordinance that authorizes that type of facility. MCL 333.27205(1).
Municipalities may also adopt zoning regulations related to marijuana facilities but may not impose regulations regarding the purity or pricing of marijuana. Id.
Michigan Medical Marijuana Dispensaries Law
While there is authorization for retail sale outlets—often referred to as “dispensaries”—in the medical marijuana statutes in other states, no such reference or authorization is found in the MMMA.
The argument for Michigan dispensaries was derived from the authorization for activities by a “patient,” read together with the expansive definition of medical use, in MCL 333.26423(f).
A patient is permitted to make “medical use” of marijuana. MCL 333.26424(a).
Medical use means:
“the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” MCL 333.26423(f).
Michigan Medical Marijuana Law Requires Marijuana Be Kept in an "Enclosed, Locked Facility"
The definition of enclosed, locked facility is pivotal in light of the obligation under MCL 333.26424(a) and (b)(2) for patients and caregivers to keep their marijuana plants in an enclosed, locked facility
By legislation effective April 1, 2013, this definition, in MCL 333.26423(d), has been expanded to read:
“Enclosed, locked facility” means a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient.
Marihuana plants grown outdoors are considered to be in an enclosed, locked facility if they are not visible to the unaided eye from an adjacent property when viewed by an individual at ground level or from a permanent structure and are grown within a stationary structure that is enclosed on all sides, except for the base, by chain-link fencing, wooden slats, or a similar material that prevents access by the general public and that is anchored, attached, or affixed to the ground;
located on land that is owned, leased, or rented by either the registered qualifying patient or a person designated through the departmental registration process as the primary caregiver for the registered qualifying patient or patients for whom the marihuana plants are grown; and equipped with functioning locks or other security devices that restrict access to only the registered qualifying patient or the registered primary caregiver who owns, leases, or rents the property on which the structure is located.
The legislature included in the new definition a clarification of the meaning of enclosed, locked facility when a motor vehicle is being used to transport marijuana plants:
The vehicle is being used temporarily to transport living marihuana plants from 1 location to another with the intent to permanently retain those plants at the second location; AND
An individual is not inside the vehicle unless he or she is either the registered qualifying patient to whom the living marihuana plants belong or the individual designated through the departmental registration process as the primary caregiver for the registered qualifying patient.
Assuming that the marijuana plants are kept in an “enclosed, locked facility,” the analysis turns to a related question: who is permitted to have access to them, i.e., whether a patient may have access to marijuana plants grown by her or his caregiver and whether a grouping of plants may be accessed by more than one caregiver.
These questions were addressed in People v Bylsma, 493 Mich 17, 825 NW2d 543 (2012).
Of these possible cultivation arrangements, the court adopted the strict interpretation that a patient may either grow plants or designate a caregiver, but may not do both.
Therefore, where a caregiver is designated, a patient no longer has the right of access to the plants.
Moreover, the court in Bylsma relied on the traditional criminal law concept of possession as interpreted under the Public Health Code in reaching the conclusion that, if plants are accessible, they are being possessed.
Thus, Bylsma held that multiple patients and caregivers may not combine their marijuana into a single “enclosed, locked facility,” and only one person may possess the marijuana plants located in such facility.
Accordingly, the court held that because defendant had access to all of the 88 plants in the facility, he was in possession of a number in excess of the plants permitted under MMMA and was not entitled to immunity under section 4, MCL 333.26424(a).
Can You Operate a Motor Vehicle While Using Medical Marijuana in Michigan?
The general rule is that any amount of a schedule 1 controlled substance (e.g., marijuana) found in the body of a person operating a motor vehicle will support an operating while intoxicated conviction without the need for further evidence of impairment of or influence on the driver. MCL 257.625(8).
However, the authors of the MMMA included the following language in MCL 333.26427(e):
“All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.”
In the same section of the MMMA, the authors wrote that the MMMA does not permit a qualified patient to, “Operate … any motor vehicle … while under the influence of marihuana. MCL 333.26427(b)(4) (emphasis added). Does this mean that the zero tolerance rule of MCL 257.625(8) does not apply to a qualified patient with marijuana in his or her system?
In People v Koon, 494 Mich 1, 832 NW2d 724 (2013), the court concluded that the MMMA superseded the prohibition of MCL 257.625(8) and allows a registered patient to drive with “indications of marijuana in [the patient’s] system but is not otherwise under the influence of marijuana.” Koon, 494 Mich at 3.
The court noted that the MMMA did not define “under the influence,” but nevertheless concluded that “it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.” Id. at 6.
In People v Latz, No 328274, 2016 Mich App LEXIS 2359 (Dec 20, 2016), the court found that the legislature attempted, by adopting the illegal transportation of marijuana statute, 2012 PA 460, MCL 750.474, to require that medical marijuana be carried in an enclosed case in the trunk or trunk equivalent whenever transported in a motor vehicle.
In Latz, the court of appeals reversed a conviction based on that statute because MCL 750.474 was not part of the MMMA and defendant was a compliant medical marijuana patient.
Under Latz, then, any future attempts to regulate the transportation of medical marijuana by MMMA-compliant patients will have to come via amendment to the MMMA.
Does Michigan's Medical Marijuana Law Require the Return of Confiscated Marijuana?
What disposition should be made of confiscated marijuana following a confrontation by the police, when the suspect produces a registry identification card signifying that the possession of the marijuana was lawful, and the card is then verified as being valid?
The MMMA provides that marijuana possessed for medical use in conformance with the act “shall not be seized or forfeited.” MCL 333.26424(h).
However, the Michigan Attorney General has opined that this provision directly conflicts with the CSA, 21 USC 801 et seq., to the extent that this provision requires law enforcement officers to return marijuana to a person on release from custody.
Consequently, the Attorney General has concluded that MCL 333.26424(h) is preempted by federal law. OAG No 7262 (Nov 10, 2011).
However, since Attorney General opinions are not binding on local authorities, this is not the end of the analysis.
Returning confiscated marijuana incident to an arrest is problematic for law enforcement officers.
First, returning marijuana to a patient potentially involves law enforcement officials in criminal liability for delivery of a controlled substance or as aiders and abettors of a federal criminal violation.
Second, returning a controlled substance is ill-advised as a matter of public policy, because it creates a cognitive dissonance for law enforcement officials, who are obligated to uphold the law, which includes the interdiction of illegal drugs.
However, under Michigan law certain individuals are permitted to lawfully possess marijuana.
Under the Fourteenth Amendment to the U.S. Constitution, a state may not deprive a person of life, liberty, or property without due process.
Because, under Michigan law, marijuana may be lawfully possessed by qualified patients and caregivers, due process compels returning the property even though it is contraband under federal law.
Perhaps the best approach is taking the marijuana into police custody and filing it as evidence for safekeeping.
This would prevent the marijuana from getting into the possession of persons not authorized to possess it under the MMMA.
However, it should not be released to the arrestee when he or she gets out of jail and comes looking for any personal property.
Doing so would constitute delivery of a controlled substance under federal law.
Rather, the marijuana should be released only pursuant to a court order requiring law enforcement officials to do so.
It would therefore be incumbent on the person from whom the marijuana was taken to bring an action in court to seek the return of his or her property.
This approach permits the existence of a court order requiring the return of the marijuana and provides a legal basis to avoid violating state or federal laws regarding the unlawful delivery of a controlled substance.
Also, if the amount of marijuana uncovered by a law-enforcement officer exceeds the amount permitted for possession under the MMMA, the entire amount is subject to confiscation and destruction since it violates both controlled substances laws and the MMMA.