It is imperative that drivers who are medical marihuana patients or caregivers be aware of the unique smell or odor of cannabis. It is also a smell that officers cue in upon, and utilize as a basis of probable cause to search a vehicle. Thus it is imperative for patients and caregivers to be aware of this fact and more importantly take steps to contain the smell of the medical cannabis.
The Michigan Transport Law MCL 750.474
The Transportation or possession of usable marihuana in a vehicle is a misdemeanor crime punishable by 93 days in Jail.
During the November 2012 lame duck legislative session, the Michigan Government passed the Michigan Transport Law, targeting Michigan Medical Marihuana Patients and Caregivers, as the only class of persons who can be criminalized for the manner in which they transport their medicine in their vehicle.
This law enacted and is still being enforced in many jurisdictions despite the very clear and unambiguous language of the MMMA as to resolution of those enacted laws that conflict with the MMMA, to wit; 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.
Despite this conflict in law, at this time Michigan Law requires that Patients and Caregivers transport their “usable” medical cannabis (as defined within the public health code, 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.
Patients and Caregivers should be aware of the requirements in Michigan Law for transporting medical cannabis. It is advisable that patients and caregivers take steps to properly transport their medical cannabis, instead of rely upon a Court ruling that the transport Law is in conflict with the MMMA.
Additionally it is advised that patients and caregivers, maintain their privacy as it relates to their patient(s) medical use of cannabis. If a driver is taking appropriate precautions, regarding the smell and location of the medical cannabis within the vehicle, the patient or caregivers status with the Medical Marihuana Program should not be an issue during the traffic stop.
MCL 333.26423 (d)(1)(2)
The Enclosed Locked Facility requirement for Patients and Caregivers and the Transport of Plants in a motor vehicle. MCL 333.26423 (d)(1)(2)
In order for Patients and Caregivers to retain immunity from arrest and prosecution and or any penalty, they must be in unambiguous compliance with all aspects of Section 4 of the MMMA 333.26424(a)(b)(d). Specifically the number of plants and the total weight of the usable marihuana are critical to this analysis. Often time a reason that patients and caregivers get ensnarled into criminal charges, is based upon violations of the enclosed, locked facility, despite a lack of evidence of any conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.
It is advisable that patients and caregivers be aware of these requirements of transporting marihuana plants. Also, because of the likely plain view observations of plants within the vehicle, the smell of cannabis and an increase in suspicion and likely investigation, patients and caregivers should be prepared to provide their medical marihuana cards, authorizing the possession of marihuana plants.
The Supreme Court says you should never talk to a police officer before or after you’ve been arrested. But the Supreme Court ruled you must speak up and say out loud to the police officer “I’m going to remain silent” and then keep your mouth shut.
How can you be arrested, falsely accused and charged with a crime if you don’t say anything?
Anything you say or do can and will be used against you at anytime by the police or the government. After stating “I’m going to remain silent…” Remaining silent is not an admission of guilt and can not be used against you in court. If you can keep your mouth shut, you might come out better than you expected.
If a police officer didn’t need your permission to search, he wouldn’t be asking you. Never give permission for a police officer to search you, your car or your home. If a police officer does search you, don’t resist and keep saying “I don’t consent to this search.” Police are not allowed to go inside your pockets and pull out your property. Police are allowed to do a “pat down” of your body and feel for weapons.
Am I Free To Go? – As soon as a police officer asks you a question… ask “am I free to go?” You have to ask if you’re “free to go,” otherwise the police officer will think that you’re voluntarily staying to talk with him. If the police officer says you’re being detained or arrested tell the police officer “I’m going to remain silent.”
Probation for Transport Law Violations Should Never Include Drug Testing for Marihuana.
It is important to be aware that implied in the statute for Illegal Transport is that the accused, is in fact a patient or caregiver. That means that the charges themselves, on their face is an acknowledgement of the lawful possession of marihuana. A person can only be charged with the illegal transport of marihuana if they are otherwise authorized to possess marihuana. This is important for registered patients because in some instances the Courts will still place the patient on probation, which often includes drug testing. It makes absolutely no sense for a patient who is charged with the Illegal Transport of Marihuana, which by definition acknowledges the lawful possession and use of marihuana, for that patient to be drug tested for marihuana. The statute is specific in criminalizing only usable marihuana, begging the questions of what if the marihuana not contained in an enclosed case, is not usable.
750.474 Transportation or possession of usable marihuana; violation as misdemeanor; penalty.
MCL 750.474 criminalizes the manner or way a medical marihuana patient or caregiver transports the medical marihuana they are authorized to possess. The medical use of marihuana is defined within the MMMA Section 3(f) further defines “medical use” to include “the acquisition, possession . . . transfer, or transportation of marihuana” (emphasis added).
Section 4 of the MMMA provides immunity from arrest, prosecution or any penalty for what would otherwise be the illegal or prohibited behavior punishable in the Public health Code MCL 333.7401, MCL 333.7401(a), MCL 333.7403, MCL 333.7404, MCL 333.7405.
Specifically section 4 (a)(b) protects patients and caregivers if they are in compliance with the limitations set forth in the MMMA. The MMMA section 4 is void of any requirement that the medical marihuana be located in any specific area or enclosed in any case within the vehicle. Section 750.474 of the Mich Penal Code, an entirely different statute, was passed pursuant to a legislative enacted law, requiring only a 50% or majority vote.
Any changes or amendments to the protections outlined in the MMMA can only be done by a supermajority vote, or 75% votes of the entire Michigan Legislature.
Section 750.474 of the Mich Penal Code was not enacted into law by this process. On its face, it should not, in any way impact the protections outlined in any portions of the MMMA. The protection from arrest for the possession of cannabis in the vehicle of the patient or caregiver should not result in arrest, prosecution or any penalty.
The transport law in fact, provides an illegal method and opportunity for Law Enforcement officers to arrest, ticket and confiscate your medicine.
Equally significant in this analysis is Section 7(e) of the MMMA which states, “[a]ll 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. Section 3(f) further defines “medical use” to include “the acquisition, possession, transfer, or transportation of marihuana” (emphasis added).
Clearly the prohibitions outlined in the Mich Penal code 750.474 are in direct conflict with the MMMA’s section 4(a)(b) protections. Section 7 (e) of the MMMA unequivocally indicates that because 750.474 directly conflicts with the protections of the MMMA, these inconsistency and prohibitions, penalties or criminal charges authorized by this statute should not, and do not apply.
Additionally Article 4 Section 25 of the Michigan Constitution states, “No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”
As reflected above the 750.474 is a poorly contemplated law. It is clear that its application has consequences for the medical cannabis community for both patients and caregivers.
Despite such a poorly contemplated law, in some instances, the Transport Law has in fact worked to the advantage of patients and caregivers. Because the statute punishes only “ persons transporting or possessing “usable marihuana” as defined in section 26423 of the public health code, the law acknowledges that but for the location of the marihuana within the vehicle, no arrest, prosecution or penalty would have been alleged.
In some instances where the accused finds themselves outside of the limitations of the MMMA, sections 4(a) or (b), a resolution to an illegal Transport Violation may be a good result. Many factors should be taken into consideration when patients and caregivers are forced to decide how they want to proceed with their case.
These are some factors to consider.
If charged with a felony drug charge arising out of the Public health Code MCL 333.7401, MCL 333.7401(a), MCL 333.7403, MCL 333.7404, MCL 333.7405, sometime the concern of the liability of losing your license is the last thing on your mind. Often times the concerns for the accused relate to the felony conviction itself and the related consequences.
Additionally there is always the issue of incarceration. In every case, the determination of how to proceed with your case, should take into consideration the totality of all of the factors.
Sometimes patients or caregivers may be motivated to seek a resolution of their case, seeking a plea to the reduced charge of a transport law violation, in lieu of a felony drug charge, if the likelihood of success at the section 8 evidentiary hearing, is not a high percentage. The decision to resolve or continue to litigate and ultimately try your case, amongst other considerations, must evaluate the strengths and weakness of the evidence available to succeed at the section 8 evidentiary hearing.
In order to prevail, with either a dismissal or the right to present an affirmative defense of medical necessity to the jury it is imperative that the accused be aware of the burden of proof, the elements that must be established and the requisite evidence to establish the necessary proofs at the evidentiary hearing. If the analysis of these factors results in an unlikely positive outcome, it may be in the accused best interest to resolve that matter with a plea bargain to a reduced charged. For the reasons stated, and amongst the traditional plea agreements entered into to resolve marihuana cases, a plea to the reduced misdemeanor charge of illegally transporting medical marihuana may be the best option for the accused.
In many cities across the state of Michigan, people do not have access to Public Transportation, and the penalty for losing your license to drive can have a chilling effect on a person and their family.
The penalties and sanctions for a conviction for prohibited behavior in the Public Health Code, or the crimes usually charged against patients and caregivers, result in licensing sanctions.
Because the Transport Law, 750.474 is not a public health code violation and the statute itself does not sanction the defendant’s driver’s license privileges. Therefore in some instances, and despite the unconstitutionality of the Transport Law, until it is officially overturned by the Michigan Court of Appeals or the Michigan Supreme Court, it can provide an alternative resolution for patients and caregivers, in some situations.
Additionally, it is possible that if and when the higher courts do in fact decide that Section 750.747 “The Transport Law” is in fact unconstitutional, a good argument can be made that any convictions for said crime on a person’s record would likewise be constitutionally invalid. By no means should this speculation be the basis of any decision for any persons charged with a crime.
However after considering the totality of all the factors and after consulting with counsel, in some instances, a resolution of your case with a reduced plea from a felony or misdemeanor charged in the Public Health Code ( subjecting the Defendant to Licensing Sanctions) to the misdemeanor Transport Law Violation should be considered.
Unlike Convictions for Use of, Possession of, Possession with the Intent to deliver, Delivery or the Manufacture of Marihuana, and maintaining a Drug House, a conviction for a Transport Violation does include Licensing Sanctions. The Public health Code MCL 333.7401, MCL 333.7401(a), MCL 333.7403, MCL 333.7404, MCL 333.7405.
That means that even if the charges arise out of an incident involving the accused walking or from a raid at a house that have nothing to do with the driving of or operation of a motor vehicle, a conviction of any kind results in licensing sanctions.
The license is suspended for 180 days, and a limited restricted driver’s license is available to the driver after 30 days plus a fee.
Relief must be brought before the court of jurisdictions by way of motion.
Public Health Code Violations result in a 1 year suspension with eligibility available for the driver after 60 days plus a fee, also this relief must be brought before the court of jurisdictions by way of motion.
As reflected in 333.7408a 333.7408a(1)(a)(b) of the public health code, as well as the the Secretary of State “Mandatory Driver License Suspensions and Revocations” administrative rules, any and all Drug Convictions, specifically those found within the public health code– Section 333.7408a(1)(a)(b), will result in a an automatic suspension of your driver’s license.
The suspension is Court Ordered, however it will be the Secretary of State notice of Suspension that will be your official notification of losing your privilege to drive. The Secretary of State mails notices to your last known address, which would be the address on your driver’s license, or registered address associated with your driver’s license.
Mandatory Driver License Suspensions and Revocations
From the Michigan Secretary of State web site…
The privilege to drive is often taken for granted, but you may lose this privilege for a variety of reasons. The law requires the Secretary of State to automatically suspend or revoke your driver license for certain violations. The action taken against your driver license will depend on a number of factors, including the type of violation or unsafe driving behavior involved, your driving record, and your willingness to comply with assessment recommendations and requirements.
Licensing actions range from restrictions to revocations. The most serious action is a revocation, defined in MCL 257.52 as the termination of the operator’s license and privilege to operate a motor vehicle. The driver is only eligible to reapply to the Department for license restoration after the expiration of one year following a first revocation, and after the expiration of five years for a subsequent revocation within seven years of a prior revocation. There is no guarantee that the license will be returned after the minimum period of revocation. The pivotal issue is whether the person can be considered a safe driver based upon documentary evidence and testimony.
A suspension is for a definite period and carries a “from” and “through” date. When the “through” date is reached, the driver merely needs to appear at a branch office and pay the reinstatement fee for relicensure. (That is, if no additional violations occur during the period of suspension.) If the reinstatement fee is not paid, the driver is on an “invalid” license status.
However, restrictions or suspensions may also be “indefinite” in nature, and will not terminate until approved for relicensure by the Department or a court. For example, if an indefinite suspension is imposed by a Department analyst for a medical reason, the driver must submit a favorable medical statement for evaluation before relicensure is authorized.
Follow these links for complete detail and any current updates.
Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry as well as consulting and legal representation for Medical Maruhuana Patients and Caregivers.
If you or someone you know has been arrested as a result of Medical Marijuana, DUI, Drugs, Forfeiture, Criminal Enterprise or any other criminal charges please contact our office and ensure you’re defended by an experienced lawyer.
Attorney Michael Komorn is recognized as an expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation 800-656-3557.
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