Court of Appeals Opinion-Wet Marijuana Not Protected By MMMA

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According to some cannabis attorneys patients and caregivers as well as cultivators in Michigan can’t process their plants without breaking the law as a result of a Court of Appeals decision.

 

During the drying process between when a marijuana plant is harvested and completely dried for use (AKA -wet marijuana), that time is not covered by the state law, according to a Michigan Court of Appeals decision ruling on July 19, 2018.

 

The appeals court case — People v. Vanessa Mansour — arises from a police raid at Mansour’s Troy home.  There they found marijuana plants and marijuana buds in different stages of wet and drying.  They also found dried marijuana buds.

 

Mansour was a medical marijuana patient at the time.

 

Mansour’s defense argued that the marijuana that was drying was not usable and therefore qualified her for immunity under state law.  They argued the drying marijuana should not be considered as authorities made up their charges.

“To say that the legislature makes it legal to possess growing plants and to possess a limited amount of finished product — but that in between, everybody is just illegal — that’s the interpretation that the Court of Appeals has hoisted on everybody,” Neil Rockind said.

The Carruthers ruling is outdated and not relevant, Rockind said.

 

Court’s interpretation of § 4 of the MMMA in People v Carruthers, 301 Mich App 590, 609; 837 NW2d 16 (2013), was controlling, and that the holding of Carruthers required the trial court to consider the total amount of marijuana possessed by defendant, not just the total amount of usable marijuana.

 

Rockind said it conflicts with state law and with People vs. Manuel, which the Court of Appeals previously decided. The Michigan Supreme Court has already had to refer a medical marijuana case back to the Court of Appeals due to the Manuel ruling, Rockind said.

 

In Manuel, the defendant was “both a qualifying patient and a primary caregiver for five patients, so he was allowed . . . to possess up to 15 ounces, or approximately 425.24 grams, of usable marijuana under the MMMA.” Manuel, 319 Mich App at 300. The marijuana he possessed was well in excess of that amount, however. The trial court held that “the marijuana . . . was unusable because it was in ‘various stages of drying.’ ” Id. at 122. It therefore ruled “that the defendant was entitled to § 4 immunity and dismissed the charges against him.”

 

But the COA referred to the second prong of Carruthers analysis stating.

 

Importantly, however, neither the prosecution nor the defendant in Manuel cited to Carruthers. Nor, perhaps largely for that reason, did this Court in Manuel cite to Carruthers.

And, consequently, neither the parties nor this Court in Manuel ever reached the second prong of the Carruthers analysis:

In short, the question of whether a possessor of marijuana possesses an allowed quantity of usable marijuana is only the beginning of the relevant inquiry under

4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is whether that person possesses any quantity of marijuana that does not constitute usable marijuana under the term-of-art definition of the MMMA. If so, and without regard to the quantity of usable marijuana possessed, the person then does not possess “an amount of marihuana that does not exceed . . . 2.5 ounces of usable marihuana . . . .” MCL 333.26424 (a) and (b)(1) (emphasis added).

Instead, he or she then possesses an amount of marijuana that is in excess of the permitted amount of usable marijuana. In other words, the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions. Carruthers, 301 Mich App at 610.

 

Rockind said he plans to take the case to the Michigan Supreme Court.

 


Michigan voters will soon be asked to consider a ballot proposal Nov. 8, 2018 that would make recreational marijuana legal in the state.


Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry.

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