Komorn: A Swing And A Miss

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House Bill 4856 was passed by the Michigan Legislature during a frantic lame-duck session in which dozens of bills were voted on and passed within a matter of a few hours, including votes taken at 4:30am. The text of HB 4856 is below:

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.

This act is ordered to take immediate effect.

Attorney Michael Komorn blogs on occasion for The Compassion Chronicles. Here are his thoughts:

Michael Komorn, attorney

Michael Komorn at the 2012 Medical Marijuana Election Discussion

House Bill 4856, born out of the late night lame duck session, is not a law intended to protect patients or caregivers. Instead it sets out a new opportunity for law enforcement officers to find violations of how patients and caregivers engage in the medical use of cannabis. Furthermore it is a law that exclusively targets persons who choose to treat their serious or debilitating condition with medical cannabis, and no one else.

If the goal of this legislature was to clear up the “holes” in the law, the passing of 4856 would earn the Legislature an (F) Failure on their report card, for doing the exact opposite:

1.The MMMA requires a 75 percent vote in both houses to amend the act, but the creation of 4856 only required a 50 percent vote to amend the Michigan Penal Code, and created a prohibition for previously protected behavior.

2.4856 prohibits “persons” from carrying usable marihuana in the interior of a vehicle, unless it is within an enclosed case (definition of enclosed case not provided). Yet the MMMA specifically protects the same behavior 4856 prohibits. Section 4(a) and (b) of the act, protects a person from arrest, prosecution or any penalty, if they possesses, a registry I.D. card and 2.5 ounces or less of usable marihuana, so long as not while on a school bus, grounds of a preschool, primary or secondary school, correctional facility etc.. Said another way 4856 creates, conflict and confusion upon implementation and will certainly be challenged with litigation.

3.4856 may lead officers to search patients and caregivers vehicles upon learning of their registry status to determine if their medicine is enclosed properly in a case. In this light, 4856 is hard to reconcile with the most basic protection outlined in the act prohibiting the use of a patients status, their card, or certification documents as probable cause to search as outlined in Section 6. “6. Administering the Department’s Rules. (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency”

4.4856 refers to the MMMA’s definition section but never use the word patient or caregiver. 4856 prohibits a “persons” from carrying usable marihuana in the interior of their vehicle unless it is in a case, arguable implying a way for any “person” to now carry marihuana in a lawful way. One could even read 4856 to suggest any person now can carry unusable marihuana in a vehicle, and so long as it is not usable, and that this activity is no longer a crime.

5.4856 clearly creates another crime or reason for a patient or caregiver to get arrested, but at the same time provided so much confusion and conflict with the existing law that a reasonable argument could be made that 4856 suggest that cannabis is no longer illegal for persons, so long as you comply with 4856 and have your usable cannabis in your trunk.
The goal of this legislature should have been to ensure the implementation of the voter’s initiative. They should have started with the premise what can they do to protect patients and caregivers from arrest, and treat these issues as public health concern and not public safety issues. Their failure to follow this approach is the reason why laws like 4856 were passed. 4856 is not a reasonable restriction and the legislatures attempt to “fix” the act, can only be described as a big swing and a miss.

http://www.thecompassionchronicles.com/2012/12/29/komorn-a-swing-and-a-miss/

You can participate in a forum-style discussion on this issue. Click on the link below:

http://michiganmedicalmarijuana.org/index.php?showtopic=42094

Attorney Michael Komorn’ practice specializes in Medical Marihuana representation. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marihuana patients, and caregiver rights. Michael is also the host of Planet Green Trees Radio, a marijuana reform based show, which is broadcast every Thursday night 8-10 pm EST