Michigan’s medical marijuana law circumvented by crime labs’ THC reports, attorney charges

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Posted on MLive 10/30/15

OTTAWA COUNTY, MI – An attorney claims prosecutors pressured state police crime labs to change the way THC, the active ingredient in marijuana, is reported in an effort to circumvent Michigan’s medical marijuana law.

 

Michael Komorn alleges scientists were told to report an unknown origin for THC contained in oil, wax or perhaps a brownie if no visible plant material was present. The THC would then be declared a synthetic substance rather than marijuana – turning a misdemeanor pot charge to a two-year felony.

 

“The crime lab is systematically biased towards falsely reporting Schedule 1 synthetic THC, a felony, instead of plant-based marijuana, a misdemeanor, ” Komorn, a Southfield attorney known for handling medical marijuana cases, told The Grand Rapids Press and MLive.

 

In the case of Max Lorincz, a 35-year-old Spring Lake man with a medical marijuana card, the change could turn him into a felon, Komorn said.

 

Lorincz’s troubles started in September 2014 after calling 911 for medical assistance for his wife. A police officer responded and spotted a small amount – “a smudge,” Komorn said – of hash oil.

 

Ottawa County prosecutors charged him in January with marijuana possession, a misdemeanor. He refused to plead guilty because he was a valid medical marijuana user. The charge was dropped in February, only to be replaced by the felony synthetic THC charge.

 

Komorn used the Freedom of Information Act to obtain numerous emails from state police crime lab workers, some raising concern about the way they had to report THC cases. Others testified in court about the new policy of denying evidence of THC coming from a marijuana plant if no material is found.

 

He contends that the Prosecuting Attorneys Association of Michigan and state Attorney General Bill Schuette, an opponent of medical marijuana, influenced state police policy.

 

“It is scandalous, scandalous. How can you trust the state lab when they are influenced by politicians?” he said.

 

State police said in a statement: “The ultimate decision on what to charge an individual with rests with the prosecutor. The role of the laboratory is to determine whether marihuana or THC are present. Michigan state police laboratory policy was changed to include the statement “origin unknown” when it is not possible to determine if THC originates from a plant (marihuana) or synthetic means. This change makes it clear that the source of the THC should not be assumed from the lab results.”

 

Ottawa County Prosecutor Ronald Frantz could not be reached for comment.

 

A hearing in Lorincz’s case is set for Nov. 9 in Ottawa County Circuit Court.

 

In an email Komorn obtained from authorities, a state police crime lab supervisor, Kyle Hoskins, said examiners need to see plant material because they would have no idea how it was produced unless they watched its production. He noted the debate and asked the opinion of Ken Stecker of the Prosecuting Attorney Association of Michigan, who reportedly responded: “That is my opinion, THC is a schedule 1 drug regardless of where it comes from. I hope that helps. Ken.”

 

Marijuana is a Schedule 2 drug under state law.

 

Related: ‘It’s been a nightmare,’ man says of contested synthetic marijuana charge

 

Lt. James Pierson, director of the Grand Rapids laboratory, said that police are finding a “significant amount of THC wax and oil,” which he said are not covered by the medical marijuana law.

 

If police seize wax or oil from a medical marijuana patient, and the lab test identifies the substance as marijuana, rather than delta-1-THC, there is no probable cause to arrest, Pierson said in an email referenced by Komorn in court filings.

 

He said he learned that if a “speck” of plant material is in the oil, the test will come back as marijuana.

 

“Is there any way to get this changed? Our prosecutors are willing to argue that one speck of marijuana does not turn the larger quantity of oil/wax into marijuana,” Pierson wrote.

 

Bradley Choate, supervisor of the Controlled Substances Unit in Lansing, disagreed with the changes. He said analysts are left with two choices when finding THC: identify it as marijuana, which is a misdemeanor for possession, or a synthetic equivalent of THC, which is a felony if possessed.

 

“There is not a third choice,” Choate wrote. “The question then becomes is the THC from a natural source, i.e., marihuana, or a synthetic source. The presence of other cannabinoids indicates that the substance is from a natural source. I don’t know of any other way to determine that THC was synthesized unless a lab was found and the pre cursor substances to make THC were present.”

 

He said prosecutors rely on their reports in filing charges. A report that says delta-1-THC with no explanation would lead a prosecutor to think the substance was synthetic.

 

“This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual. For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the Division and the Department.”

 

As forensic scientists, Choate said they had to apply science to the law.

 

“I have a problem with the procedure manual stating that a conclusion of marihuana cannot be stated in the report. … The conclusion is incorrect because the resins are Marihuana. Apparently analysts in our system (are) hung up on the fact that to identify marihuana they need to see plant material.”

 

Choate said that “Guiding Principles” training says “that ‘Conclusions are based on the evidence and the reference material relevant to the evidence, not on extraneous information, political pressure, or other outside influences.”

 

“When we made the previous changes I made it very apparent that I did not agree with it. One of my concerns was that by reporting out THC instead of marijuana it would lead Prosecutors charging people with synthetic THC. This appears to be what the agency wants. The question I would pose to all of our analysts is how they would answer questions on the stand.

 

“In the scenario described how would they answer the question that absent the plant material speck, in their opinion is the rest of the wax material marihuana or not and in their opinion is the THC identified synthetic or natural? Again the legal definition of marihuana includes the resinous extract which contains cannabinoids and we can identify those cannabinoids.”

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John Agar covers crime for MLive/Grand Rapids Press E-mail John Agar: jagar@mlive.com and follow him on Twitter at twitter.com/ReporterJAgar