MMMA and HB 4856: The Transportation of Marijuana Bill

January 19, 2013

By David Rudoi Esq.

On December 15, 2012 the Michigan Senate passed House Bill 4856 which is now law found in Michigan Compiled Laws 750.474. The major subject covered by the new law is the transportation of marijuana.  It is important to note that this new law does not change or augment the Michigan Medical Marijuana Act (MMMA) in any way. The text of the article reads:

The People of the State of Michigan enact:

Sec. 474. (1) A person shall not transport or possess usable marihuana as defined in section 26423 of the public health code, 1978 PA 368, MCL 333.26423, in or upon a motor vehicle or any self-propelled vehicle designed for land travel unless the usable marihuana is 1 or more of the following:

(a) Enclosed in a case that is carried in the trunk of the vehicle.

(b) Enclosed in a case that is not readily accessible from the interior of the vehicle, if the vehicle in which the person is traveling does not have a trunk.

(2) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.

HB 4856 is a Way to Punish Patients and Caregivers

HB 4856 was created in order to have more ways to prosecute patients and caregivers and doesn’t really protect anyone. The Michigan Medical Marijuana Act  specifically allows for the same activity which HB 4856 restricts. The bill regulates the transportation of marijuana by stating that no “person” shall carry usable marijuana in the interior of a vehicle. The only way to legally transport marijuana in a vehicle is to have it enclosed in a case and that case enclosed in the trunk or in some area that is not readily accessible from the interior of the vehicle.

The definition of the case in which the marijuana is supposed to be enclosed was not included in the bill. Therefore, it will be up to judges to interpret exactly what the requirements of the “case” are. This could lead to arrests even when patients and caregivers are attempting to transport their marijuana lawfully. Also, HB 4856 could lead police to search the interior of patients’ and caregivers’ vehicles in order to determine if they are in compliance with MCL 750.474. Thus, this new law gives police officers new reasons to harass Michigan medical marijuana patients and caregivers.

At Rudoi Law we understand and are current on all marijuana related law. If you or a loved one is being prosecuted for a marijuana related offense Contact Rudoi Law Today.

People v. Green: The Transfer of Medical Marijuana Between Patients Without Compensation is Protected Under Section 4 of the MMMA

January 30, 2013

David Rudoi Esq.

On Wednesday January 30, 2013 the State of Michigan Court of Appeals ruled on the case of People v. Green. The case involved the question of whether the uncompensated transfer of medical marijuana from registered patient to registered patient is covered under section 4 of the Michigan Medical Marijuana Act. The Appeals court determined that registered patient to patient transfers of medical marijuana are covered under section 4 of the MMMA as long as the transfers are uncompensated. This means: a registered patient is immune from arrest and prosecution for transferring medical marijuana to another registered patient as long as no monetary compensation is received.

The court based its ruling on MCL 333.26423(3)(e) which defines the medical use of marijuana to include both delivery and transfer. Thus, under section 4(a) a registered patient is immune from this activity. The court concluded that the plain language of the  MMMA section 4(a) entitled defendant to the presumption of medical use and thus that the transfer could be inferred to have occurred for the purpose of assisting in the use of marijuana in order to alleviate the patient’s symptoms of his medical condition.

The appeals court rejected the prosecutions argument that transfers could only occur in the patient to caregiver relationship. The court cited the case of People v. Nicholson which stated “a defendant is immune from arrest, prosecution, or penalty pursuant to § 4(a) if he or she (1) is a qualifying patient; (2) who has been issued and possesses a registry identification card; and (3) possesses less than 2.5 ounces of marijuana.” Section 4(a) immunity only applies if the defendant is engaged in the medical use of marijuana which includes deliver and transfer.

In the case of People v. McQueen the appeals court ruled that patient to patient sales of marijuana were not covered under section 4 of the  MMMA because sale was not included in the definition of medical use. However, the court distinguished from McQueen citing the definition of “sale” includes deliver or transfer plus the receipt of compensation. In this case because there was no receipt of compensation there was no sale and thus the transfer was covered under section 4 of the  MMMA.

The case ofPeople v. Green was a simply interpretation of the plain language of the Michigan Medical Marijuana Act. It is a big win for the medical marijuana community but only because the court shut down the ridiculous argument that the government was asserting. Prosecutors around the state are dreaming up new interpretation of the  MMMA in order to deprive patients of their rights and the courts are finally shutting these silly arguments.

At Rudoi Law we are always current on all new medical Marijuana case law. If you or a loved one is in need of advice Contact Rudoi Law today!

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Federal Court of Appeals Declines Opportunity to Reclassify Marijuana as a Schedule 1 Controlled Substance

Federal Court of Appeals Declines Opportunity to Reclassify Marijuana as a Schedule 1 Controlled Substance:

January 23, 2013

David Rudoi Esq.

On Tuesday a Federal Court of Appeals denied a petition to reclassify marijuana as a Schedule 1 controlled substance. Marijuana is currently classified as a schedule 1 controlled substance within the Federal Controlled Substances Act. A portion of the definition of a Schedule 1 controlled substance is that it has a “high potential for abuse and no currently accepted medical use.” Other drugs that are classified as schedule 1 controlled substance include Heroin, LSD, and Escatsy.

Many people find it completely ridiculous that the federal government claims that Marijuana has “no currently accepted medical use when 17 states and the District of Columbia have passed bills that legalize the use of medical marijuana. It seems to many that the people of the various states that have passed medical marijuana laws overwhelming believe that marijuana does have medical use. Doctors across the states with medical marijuana laws continue to write recommendations for patients to use medical marijuana. It is clear to most across the country that marijuana does have many accepted medical uses.

Judge Harry T. Edwards wrote the majority opinion and stated that the case was not decided on the issue of whether marijuana does in fact have medical benefits, but rather whether the Drug Enforcement Administrations decision to keep marihuana as a schedule 1 controlled substance was “arbitrary and capricious”. Under that “arbitrary and capricious” the court found the classification survived judicial review.

Two of the three judges ruled that at least one of the petitioners had standing to challenge the DEA’s action. This is at least a small win in a case that to most is a unexplainable loss that defies all logic and rationale.

The DEA defines “currently accepted medical use to require, among other things, “adequate and well-controlled studies proving efficacy.” Americans for Safe Access, one of the petitioners in the case, cited over 200 peer reviewed studies that demonstrate marijuana’s various medical uses. The court said that there may be medical use for marijuana, however, the court stated “the DEA fairly construed this report as calling for ‘more and better studies to determine potential medical applications of marijuana’ and not as sufficient proof of medical efficacy itself.” The court found that petitioners “have not pointed to ‘adequate and well-controlled studies’ confirming the efficacy of marijuana for medicinal uses”.

This decision is a hard hit to the medical marijuana movement across the country in the wake of positive momentum coming off the election where Colorado and Washington legalized marijuana for recreational use under state law.the decision to reclassify marihuana would solve many conflicts of state and federal law as well as stop overly harsh federal treatment of marijuana related crimes.  It seems the federal government is yet to catch up with the citizens of this country who are pushing to have marijuana treated differently from other drugs and reclassify marijuana from being a schedule 1 controlled substance.