43rd District Court Judge Robert Turner says it is one of the worst pieces of legislation he has ever seen. He made that assessment of the Michigan Medical Marijuana Act (MMA) back in June 2009 when dismissing pot growing charges brought by the Oakland County Prosecutor against Robert Lee Redden and Torey Alison Clark. Last week, the Michigan Court of Appeals affirmed Oakland Circuit Court Judge Martha Anderson’s reinstatement of the criminal charges against Redden and Clark. Now, the accused Madison Heights couple will either have to plead or go to trial. At the time of the raid on the couple’s residence, the Oakland County Sheriff seized 1.5 ounces of pot, some nominal cash, and about 21 small plants. Three weeks prior to the raid, each defendant had submitted to a medical certification exam with Dr. Eric Eisenbud (not making it up) of Colorado (and of the recently founded Hemp and Cannabis Foundation Medical Clinic) and applied for a medical marijuana card pursuant to the MMA. Their cards, however, had not been issued at the time of the raid. At the couple’s preliminary examination before Judge Turner, the prosecutor argued that: a) the defendants were required to abstain from “medicating” with marijuana while their applications to the State of Michigan’s Department of Community Health were pending; and b) the defendants did not have a bona fide physician-patient relationship with Dr. Eisenbud. Judge Turner indicated that the MMA was confusing relative to what constituted a reasonable amount of marijuana. The defendants in this case were found with an ounce and a half; the MMA allows 2.5 ounces. Judge Turner made the following ruling:
For that reason, I believe that section 8 entitles the defendants to a dismissal, even though they did not possess the valid medical card, because section 8 says if they can show the fact that a doctor believed that they were likely to receive a therapeutic benefit, and this doctor testified to that. And Dr. Eisenbud is a physician licensed by the State of Michigan. And that’s the only requirement that the statute has. You don’t have to be any type of physician, you just have to be a licensed physician by the State of Michigan.
So, based on that, I find section 8 does apply. And I believe I’m obligated to dismiss this matter based on section 8 of the statute.
Under the applicable court rules, the prosecutor appealed the district court dismissal to the Oakland Circuit Court. In reversing her district court counter-part, Judge Anderson held that Judge Turner improperly acted as a finder of fact in dismissing the case. Judge Anderson also questioned whether the couple could avail themselves of the MMA’s affirmative defenses at all, due to their purported failures to comply with the provisions of the act; i.e. keeping the pot segregated and locked-up, and waiting until they received their cards from the Department of Community Health prior to growing their pot. At the time of the Madison Heights bust, however, the couple could not have received marijuana cards because the DCH had not started issuing the cards. To date, almost 30,000 certifications have been issued. In their opinion last week affirming Judge Anderson, the Court of Appeals held that the MMA’s affirmative defenses were available to defendants even though they did not have their cards at the time their pot was confiscated. The Court of Appeals held against defendants, however, on the basis that, at the time of their preliminary examination in district court, their affirmative defense under the MMA was incomplete and thus created fact questions. The Court found the following fact issues to be unresolved at the conclusion of the exam: the bona fides of the physician-patient relationship; whether the amount of marijuana found in the residence was “reasonable” under the Act; and whether the marijuana was being used by defendants for palliative purposes, as required by the Act. The most interesting thing about the Court of Appeals’ Redden decision is the scathing concurring opinion of Judge Peter D. O’Connell. Judge O’Connell wrote separately because he would have more narrowly tailored the affirmative defenses available in the MMA, and because he wished to “elaborate” on some of the general discussion of the Act set forth in the briefs and at oral argument. Elaborate he did. Judge O’Connell’s 30-page opinion first notes that the possession, distribution and manufacture of marijuana remains a federal crime and further notes that Congress has expressly found the plant to have “no acceptable medical uses.” In what will undoubtedly become a classic line from his opinion, Judge O’Connell writes, “I will attempt to cut through the haze surrounding this legislation.” The judge is skeptical that folks are really using pot to “medicate” and suspects that they are using the plant for recreational purposes. He also takes note of the poor quality of the legislation to the extent that it conflicts with other provisions set forth in the Health Code. Judge O’Connell next takes a tour de force through the legislative history of the MMA. Here, we learn that the act was based on model legislation proposed by lobbyists known as the Marijuana Policy Project of Washington D.C. The group advances both the medicinal and recreational uses of marijuana. “Confusion”, and lots of it, is how Judge O’Connell views the MMA. In one of the many footnotes to his opinion, the Judge warns against all marijuana use until the score is settled, once and for all, by the Michigan Supreme Court:
Until our Supreme Court provides a final comprehensive interpretation of this act, it would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to risk violating state law. I again issue a stern warning to all: please do not attempt to interpret this act on your own. Reading this act is similar to participating in the Triwizard Tournament described in Harry Potter and the Goblet of Fire: the maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove the haze from this act.
Euan Abercrombie, 1st year student at the Hogwarts school would probably remark; “Wow”. For their part, the criminal defense bar, commenting via listserv, have basically gone wild over the concurring opinion, with its multiple web site references and pictures of marijuana advertisements. The consensus among the defense bar, however, is that the majority opinion is correct and that Judge Anderson, at the end of the day, got it right; Redden was not the cleanest case to dismiss under the Act. Finally, it seems that the Oakland County Sheriff and Prosecutor correctly anticipated last week’s Court of Appeals’ decision. A few weeks prior to the issuance of the Redden decision, they conducted a series of dispensary raids, ruffling tons of feathers along the way. For some preliminary guidance, we have prepared a legal guide for the MMA for those seeking to use marijuana for legitimate palliative purposes under the Act. Take note, however, that at least one appellate jurist would have folks managing chronic “pain” with prescription meds until the medical marijuana mess is sorted out by our Supreme Court.
Monday, September 20, 2010
April 2011 Update: As we’ve warned our readers, and as Judge O’Connell warned in his opinion, marijuana possession remains a federal crime. This week, the feds raided a warehouse-style dispensary in Commerce Township. The law enforcement action is covered in this article in the Oakland Press.
Statistical Report with Program Information and Financial Data For Fiscal Year 2016
(Pursuant to MCL 333.26426 (i) (1), (2), (3), (4) and (5) and Section 507 of Public Act 268 of 2016)
December 22, 2016
(l) The amount collected from the medical marihuana program application and renewal fees authorized in section 5 of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26425.
$9,841,058.49
(m) The costs of administering the medical marihuana program under the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430.
When Deborah Young of Ferndale sent her $60 fee to Lansing this year to register as a medical-marijuana user, she assumed the state would use her money to review her paperwork and print her ID card.
The fees are “for the operation and oversight of the Michigan medical marihuana program,” says state law — spelling marijuana with an “h,” the old-fashioned way as in federal law.
Last month, though, Young said she and other card holderswere shocked to learn that Michigan’s Department of Licensing and Regulatory Affairs — LARA — had built up so much in fees that it gave $1.2 million to 18 county sheriffs, including those in Wayne, Oakland and Macomb counties. The grants are intended via legislative approval to be used by sheriffs for training and enforcement of Michigan’s medical marijuana act.
“They’re raiding the same people who paid those fees,” said Young, 58, who has glaucoma, a serious eye disease approved for medical-marijuana treatment in Michigan.
“We couldn’t believe it,” said Young. Ferndale residents learned not only that the Oakland County Sheriff received fee revenue from the ID cards but that their own city’s police department was set to get a share of it for use in medical-marijuana investigations.
The Oakland County Sheriff’s Office received $323,725 this year from LARA, according to a county memo sent to cities getting the grant offers. According to the memo, the county sheriff plans to spend $98,000 on 28 raid-style bulletproof vests, $80,000 on a Chevrolet van, pickup and trailer to transport seized marijuana plants; $10,000 to train investigators, and $134,000 for overtime pay to medical-marijuana investigators. Much of the overtime pay is being offered to 15 communities in Oakland County that lend officers to OAKNET — the Oakland County Narcotics Enforcement Team.
The Ferndale City Council rubber-stamped the grant without discussion in mid-July. Rochester and Royal Oak city councils also voted last month to accept grant money. Ferndale’s share of $5,582 was to pay overtime for officers in countywide medical-marijuana raids, according to the county memo.
When Young and other residents began calling the city to complain, the council put the grant back on its agenda. And it prompted Young to stand before the council members to demand that they rescind their decision.
“Why would we need a medical-marijuana oversight grant in Ferndale? Why would we even be a part of something to harass sick people?” she told council members.
Her questions also prompted bigger ones: Whether medical-marijuana users are primarily law-abiding Michiganders who merely seek a respite from pain and other conditions approved for medical-marijuana treatment; or whether they’re mainly seeking a sensory high, with the aid of complicit doctors willing to sign forms, and of drug dealers bent on making big profits while dodging federal drug laws.
Oakland County Sheriff Michael Bouchard said he sees dispensary operators as a serious threat to society.
“These grants aren’t to prosecute someone who’s not breaking the law,” Bouchard said. Oakland County’s memo offering grants to local police departments, provided to 15 city councils and township boards, said that medical marijuana “is being smuggled, mailed and transported into Oakland County from other states on a regular basis.” Michigan’s medical marijuana act, a vague law passed by voters in 2008, is an invitation to drug dealing, profiteering and the involvement of organized crime, Bouchard said.
Bouchard is unabashed about his vigorous campaign to wipe outdispensaries in Oakland County, citing a state Supreme Court ruling in 2011, which Michigan Attorney General Bill Schuette has said means that most dispensaries were illegal in Michigan. Law enforcement officials in some counties, including Wayne, have tolerated the spread of dispensaries, but Bouchard said he is adamantly opposed to such leniency.
Oakland County investigators recently learned that two workers at a chain of four dispensaries, operating in Wayne and Oakland counties, were shot by a rival group, he said.
“One individual was murdered. The other was shot several times, but survived,” Bouchard said, adding: “I don’t care what some other counties are doing. The law says these types of facilities are illegal (and) they put law-abiding citizens at risk.”
The practice of turning medical-marijuana users’ fees against them by police agencies is not new in Michigan, although this year’s escalation of grants was shocking, said Rick Thompson, editor of the online Compassion Chronicles, a blog for medical-marijuana patients.
“This started out as a small, hidden part of the state’s budget in fiscal year 2014,” Thompson said. As the medical-marijuana funds swelled from cranking out ID cards, the Legislature began earmarking grant money for county sheriffs, Thompson said.
“The language said it would be for education about and enforcement of Michigan’s medical marijuana act, but you can see what that turned into,” he said. In the first year, four counties spent $116,000, state records show.
This year, the grant money grew tenfold, said State Representative Jeff Irwin, D-Ann Arbor. The Macomb County Sheriff is allowed up to$254,125, and the Wayne County Sheriff got $473,256, Irwin said.
The grants could expand dramatically again next year because LARA now has a whopping $31 million in its medical-marijuana fund, mainly from fees paid for ID cards by nearly 200,000 Michiganders, who were either approved to use medical marijuana or approved to be caregivers and provide medical marijuana to others.
The fee revenue this year flows in at nearly $9 million a year, $3 million more than the cost to administer the program, Irwin said.
Funneling fresh windfalls to law enforcement could mean more raids of dispensaries, home growing operations and other medical-marijuana sites, Irwin said.
Michigan is one of only two states that allows medical marijuana but doesn’t allow dispensaries, said Karen O’Keefe, a lawyer who is director of state policies for the Washington, D.C.-based nonprofit Marijuana Policy Project.
“The big problem in Michigan is that the Legislature just has not updated the law” to allow dispensaries, O’Keefe said.
“It just does not make sense that you tell people, your only legal option is to plant a seed and wait four to five months” for it to grow the plant, said O’Keefe, in Grosse Pointe Woods last week to visit her parents.
Law-enforcement leaders have lobbied to block bills in Lansing that would’ve allowed and regulated dispensaries. This fall’s lame-duck session of the state Legislature could change that, said State Sen. Rick Jones, R-Grand Ledge.
“Right now, we have a package of bills that would do that, and in a way that would be acceptable to police, acceptable to the cities and townships, and acceptable I think to most of the patients,” said Jones, a former sheriff of Eaton County and chair of the powerful Senate Judiciary Committee.
“The only people who oppose this are the ones who are profiting greatly” by hiding criminal enterprises behind the cover of Michigan’s medical marijuana law, he said. In the meantime, police must keep the pressure on those who’ve turned dispensaries into dens of illegal drug dealing, he said.
At the Ferndale City Council meeting late last month, another speaker who opposed accepting the county’s grant was former Ferndale mayor Craig Covey, a strong supporter of fully legalized marijuana. Covey is running in November against Bouchard for Oakland County Sheriff.
“So the money that’s coming back to Ferndale (as a grant to police) is coming from people with glaucoma, people with pain conditions, people who are legal patients using medical marijuana, and it’s being used to shut down compassion clubs and dispensaries,” Covey told the city council.
Standing nearby, Ferndale police Chief Timothy Collins already was counting on having an extra $5,000 in his budget.
“This is simply a vehicle for the city to be reimbursed for some of our overtime. Royal Oak accepted it two weeks ago,” Collins told the city council.
After a short debate, the council voted 3-1 to rescind its previous vote. The grant had been rejected. “Thank you, Ferndale!” shouted Young, as she and others applauded. But moments earlier, the audience heard Councilman Dan Martin’s dire assessment of the vote: “I understand that this is a symbolic stance — the county’s going to do what it’s going to do.”
Bill Laitner , Detroit Free Press 10:39 p.m. EDT August 6, 2016
An advisory panel is recommending not to add an eye disease that qualify for medical marijuana in Michigan.
The petition was filed by Melba Velez Ortiz, a professor at Grand Valley State University. She would like to add retinitis pigmentosa to the list of ailments to qualify for medical marijuana use.
It’s an inherited disease that affects the retina and can possibly lead to night blindness and loss of vision. Ortiz claims there’s research showing marijuana can slow the progress of the disease.
Just one of six members on the review panel was in favor.
AN ACT to establish a statewide monitoring system to track marihuana and marihuana products in commercial trade; to monitor compliance with laws authorizing commercial traffic in medical marihuana; to identify threats to health from particular batches of marihuana or medical marihuana; to require persons engaged in commercial marihuana trade to submit certain information for entry into the system; to provide the powers and duties of certain state departments and agencies; to provide for remedies; and to provide for the promulgation of rules.
The People of the State of Michigan enact:
Sec. 1. This act shall be known and may be cited as the “marihuana tracking act”.
Sec. 2. As used in this act:
(a) “Department” means the department of licensing and regulatory affairs.
(b) “Licensee” means that term as defined in section 102 of the medical marihuana facilities licensing act.
(c) “Marihuana” means that term as defined in section 7106 of the public health code, 1978 PA 368, MCL 333.7106.
(d) “Registered primary caregiver” means that term as defined in section 102 of the medical marihuana facilities licensing act.
(e) “Registered qualifying patient” means that term as defined in section 102 of the medical marihuana facilities licensing act.
(f) “Registry identification card” means that term as defined in section 3 of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26423.
(g) “Statewide monitoring system” or “system” means an internet-based, statewide database established, implemented, and maintained directly or indirectly by the department that is available to licensees, law enforcement agencies, and authorized state departments and agencies on a 24-hour basis for all of the following:
(i) Verifying registry identification cards.
(ii) Tracking marihuana transfer and transportation by licensees, including transferee, date, quantity, and price.
(iii) Verifying in a commercially reasonable time that a transfer will not exceed the limit that the registered qualifying patient or registered primary caregiver is authorized to receive under section 4 of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26424.
Sec. 3. (1) The department shall establish a statewide monitoring system for use as an integrated marihuana tracking, inventory, and verification system. The system must allow for interface with third-party inventory and tracking systems as described in section 207 of the medical marihuana facilities licensing act to provide for access by this state, licensees, and law enforcement personnel, to the extent that they need and are authorized to receive or submit the information, to comply with, enforce, or administer this act; the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430; or the medical marihuana facilities licensing act.
(2) At a minimum, the system must be capable of storing and providing access to information that, in conjunction with 1 or more third-party inventory control and tracking systems under section 207 of the medical marihuana facilities licensing act, allows all of the following:
(a) Verification that a registry identification card is current and valid and has not been suspended, revoked, or denied.
(b) Retention of a record of the date, time, quantity, and price of each sale or transfer of marihuana to a registered qualifying patient or registered primary caregiver.
(c) Determination of whether a particular sale or transfer transaction will exceed the permissible limit established under the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430.
(d) Effective monitoring of marihuana seed-to-sale transfers.
(e) Receipt and integration of information from third-party inventory control and tracking systems under section 207 of the medical marihuana facilities licensing act.
(3) The department shall promulgate rules to govern the process for incorporating information concerning registry identification card renewal, revocation, suspension, and changes and other information applicable to licensees, registered primary caregivers, and registered qualifying patients that must be included and maintained in the statewide monitoring system.
(4) The department shall seek bids to establish, operate, and maintain the statewide monitoring system under this section. The department shall do all of the following:
(a) Evaluate bidders based on the cost of the service and the ability to meet all of the requirements of this act; the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430; and the medical marihuana facilities licensing act.
(b) Give strong consideration to the bidder’s ability to prevent fraud, abuse, and other unlawful or prohibited activities associated with the commercial trade in marihuana in this state, and the ability to provide additional tools for the administration and enforcement of this act; the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430; and the medical marihuana facilities licensing act.
(c) Institute procedures to ensure that the contract awardee does not disclose or use the information in the system for any use or purpose except for the enforcement, oversight, and implementation of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430, or the medical marihuana facilities licensing act.
(d) Require the contract awardee to deliver the functioning system by 180 days after award of the contract.
(5) The department may terminate a contract with a contract awardee under this act for a violation of this act. A contract awardee may be debarred from award of other state contracts under this act for a violation of this act.
Sec. 4. The information in the system is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246. Information in the system may be disclosed for purposes of enforcing this act; the Michigan medical marihuana act, 2008 IL 1, MCL 333.26421 to 333.26430; and the medical marihuana facilities licensing act.
Enacting section 1. This act takes effect 90 days after the date it is enacted into law.
Enacting section 2. This act does not take effect unless House Bill No. 4209 of the 98th Legislature is enacted into law.
This act is ordered to take immediate effect.
STATE OF MICHIGAN – 98TH LEGISLATURE – REGULAR SESSION OF 2016
Introduced by Rep. Kesto
Michigan Medical Marihuana Laws are constantly changing. Please Research New Laws and Updates
AN ACT to amend 2008 IL 1, entitled “An initiation of Legislation to allow under state law the medical use of marihuana; to provide protections for the medical use of marihuana; to provide for a system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for registry application and renewal; to provide for the promulgation of rules; to provide for the administration of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for penalties for violations of this act,” by amending the title and sections 3, 4, 6, and 7 (MCL 333.26423, 333.26424, 333.26426, and 333.26427), sections 3 and 4 as amended by 2012 PA 512 and section 6 as amended by 2012 PA 514, and by adding sections 4a and 4b.
The People of the State of Michigan enact:
TITLE
An initiation of Legislation to allow under state law the medical use of marihuana; to provide protections for the medical use of marihuana; to provide for a system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for registry application and renewal; to make an appropriation; to provide for the promulgation of rules; to provide for the administration of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for penalties for violations of this act.
Definitions.
Sec. 3. As used in this act:
(a) “Bona fide physician-patient relationship” means a treatment or counseling relationship between a physician and patient in which all of the following are present:
(1) The physician has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.
(2) The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.
(3) The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marihuana as a treatment of the patient’s debilitating medical condition.
(4) If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the medical use of marihuana to treat that condition.
(b) “Debilitating medical condition” means 1 or more of the following:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions.EHB 4210
(2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.
(3) Any other medical condition or its treatment approved by the department, as provided for in section 6(k).
(c) “Department” means the department of licensing and regulatory affairs.
(d) “Enclosed, locked facility” means a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient. Marihuana plants grown outdoors are considered to be in an enclosed, locked facility if they are not visible to the unaided eye from an adjacent property when viewed by an individual at ground level or from a permanent structure and are grown within a stationary structure that is enclosed on all sides, except for the base, by chain-link fencing, wooden slats, or a similar material that prevents access by the general public and that is anchored, attached, or affixed to the ground; located on land that is owned, leased, or rented by either the registered qualifying patient or a person designated through the departmental registration process as the primary caregiver for the registered qualifying patient or patients for whom the marihuana plants are grown; and equipped with functioning locks or other security devices that restrict access to only the registered qualifying patient or the registered primary caregiver who owns, leases, or rents the property on which the structure is located. Enclosed, locked facility includes a motor vehicle if both of the following conditions are met:
(1) The vehicle is being used temporarily to transport living marihuana plants from 1 location to another with the intent to permanently retain those plants at the second location.
(2) An individual is not inside the vehicle unless he or she is either the registered qualifying patient to whom the living marihuana plants belong or the individual designated through the departmental registration process as the primary caregiver for the registered qualifying patient.
(e) “Marihuana” means that term as defined in section 7106 of the public health code, 1978 PA 368, MCL 333.7106.
(f) “Marihuana-infused product” means a topical formulation, tincture, beverage, edible substance, or similar product containing any usable marihuana that is intended for human consumption in a manner other than smoke inhalation. Marihuana-infused product shall not be considered a food for purposes of the food law, 2000 PA 92, MCL 289.1101 to 289.8111.
(g) “Marihuana plant” means any plant of the species Cannabis sativa L.
(h) “Medical use of marihuana” means the acquisition, possession, cultivation, manufacture, extraction, use, internal possession, delivery, transfer, or transportation of marihuana, marihuana-infused products, or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.
(i) “Physician” means an individual licensed as a physician under part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556.
(j) “Plant” means any living organism that produces its own food through photosynthesis and has observable root formation or is in growth material.
(k) “Primary caregiver” or “caregiver” means a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.
(l) “Qualifying patient” or “patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.
(m) “Registry identification card” means a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver.
(n) “Usable marihuana” means the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant.
(o) “Usable marihuana equivalent” means the amount of usable marihuana in a marihuana-infused product that is calculated as provided in section 4(c).
(p) “Visiting qualifying patient” means a patient who is not a resident of this state or who has been a resident of this state for less than 30 days.
(q) “Written certification” means a document signed by a physician, stating all of the following:
(1) The patient’s debilitating medical condition.EHB 4210
(2) The physician has completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation.
(3) In the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.
4. Protections for the Medical Use of Marihuana.
Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.
(b) A primary caregiver who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses marihuana in forms and amounts that do not exceed any of the following:
(1) For each qualifying patient to whom he or she is connected through the department’s registration process, a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents.
(2) For each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.
(3) Any incidental amount of seeds, stalks, and unusable roots.
(c) For purposes of determining usable marihuana equivalency, the following shall be considered equivalent to 1 ounce of usable marihuana:
(1) 16 ounces of marihuana-infused product if in a solid form.
(2) 7 grams of marihuana-infused product if in a gaseous form.
(3) 36 fluid ounces of marihuana-infused product if in a liquid form.
(d) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.
(e) There is a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver complies with both of the following:
(1) Is in possession of a registry identification card.
(2) Is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that 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.
(f) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation does not constitute the sale of controlled substances.
(g) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient’s medical history, or for otherwise stating that, in the physician’s professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions.
(h) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana.
(i) Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.
(j) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.
(k) A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient’s medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department.
(l) Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed the medical use of marihuana under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.
(m) A person shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for manufacturing a marihuana-infused product if the person is any of the following:
(1) A registered qualifying patient, manufacturing for his or her own personal use.
(2) A registered primary caregiver, manufacturing for the use of a patient to whom he or she is connected through the department’s registration process.
(n) A qualifying patient shall not transfer a marihuana-infused product or marihuana to any individual.
(o) A primary caregiver shall not transfer a marihuana-infused product to any individual who is not a qualifying patient to whom he or she is connected through the department’s registration process.
Sec. 4a. (1) This section does not apply unless the medical marihuana facilities licensing act is enacted.
(2) A registered qualifying patient or registered primary caregiver shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for any of the following:
(a) Transferring or purchasing marihuana in an amount authorized by this act from a provisioning center licensed under the medical marihuana facilities licensing act.
(b) Transferring or selling marihuana seeds or seedlings to a grower licensed under the medical marihuana facilities licensing act.
(c) Transferring marihuana for testing to and from a safety compliance facility licensed under the medical marihuana facilities licensing act.
Sec. 4b. (1) Except as provided in subsections (2) to (4), a qualifying patient or primary caregiver shall not transport or possess a marihuana-infused product in or upon a motor vehicle.
(2) This section does not prohibit a qualifying patient from transporting or possessing a marihuana-infused product in or upon a motor vehicle if the marihuana-infused product is in a sealed and labeled package that is carried in the trunk of the vehicle or, if the vehicle does not have a trunk, is carried so as not to be readily accessible from the interior of the vehicle. The label must state the weight of the marihuana-infused product in ounces, name of the manufacturer, date of manufacture, name of the person from whom the marihuana-infused product was received, and date of receipt.
(3) This section does not prohibit a primary caregiver from transporting or possessing a marihuana-infused product in or upon a motor vehicle if the marihuana-infused product is accompanied by an accurate marihuana transportation manifest and enclosed in a case carried in the trunk of the vehicle or, if the vehicle does not have a trunk, is enclosed in a case and carried so as not to be readily accessible from the interior of the vehicle. The manifest form must state the weight of each marihuana-infused product in ounces, name and address of the manufacturer, date of manufacture, destination name and address, date and time of departure, estimated date and time of arrival, and, if applicable, name and address of the person from whom the product was received and date of receipt.
(4) This section does not prohibit a primary caregiver from transporting or possessing a marihuana-infused product in or upon a motor vehicle for the use of his or her child, spouse, or parent who is a qualifying patient if the marihuana-infused product is in a sealed and labeled package that is carried in the trunk of the vehicle or, if the vehicle does not have a trunk, is carried so as not to be readily accessible from the interior of the vehicle. The label must state the weight of the marihuana-infused product in ounces, name of the manufacturer, date of manufacture, name of the qualifying patient, and, if applicable, name of the person from whom the marihuana-infused product was received and date of receipt.
(5) For purposes of determining compliance with quantity limitations under section 4, there is a rebuttable presumption that the weight of a marihuana-infused product listed on its package label or on a marihuana transportation manifest is accurate.
(6) A qualifying patient or primary caregiver who violates this section is responsible for a civil fine of not more than $250.00.
6. Administering the Department’s Rules.
Sec. 6. (a) The department shall issue registry identification cards to qualifying patients who submit the following, in accordance with the department’s rules:
(1) A written certification;
(2) Application or renewal fee;
(3) Name, address, and date of birth of the qualifying patient, except that if the applicant is homeless, no address is required;
(4) Name, address, and telephone number of the qualifying patient’s physician;
(5) Name, address, and date of birth of the qualifying patient’s primary caregiver, if any;
(6) Proof of Michigan residency. For the purposes of this subdivision, a person shall be considered to have proved legal residency in this state if any of the following apply:
(i) The person provides a copy of a valid, lawfully obtained Michigan driver license issued under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or an official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300.
(ii) The person provides a copy of a valid Michigan voter registration.
(7) If the qualifying patient designates a primary caregiver, a designation as to whether the qualifying patient or primary caregiver will be allowed under state law to possess marihuana plants for the qualifying patient’s medical use.
(b) The department shall not issue a registry identification card to a qualifying patient who is under the age of 18 unless:
(1) The qualifying patient’s physician has explained the potential risks and benefits of the medical use of marihuana to the qualifying patient and to his or her parent or legal guardian;
(2) The qualifying patient’s parent or legal guardian submits a written certification from 2 physicians; and
(3) The qualifying patient’s parent or legal guardian consents in writing to:
(A) Allow the qualifying patient’s medical use of marihuana;
(B) Serve as the qualifying patient’s primary caregiver; and
(C) Control the acquisition of the marihuana, the dosage, and the frequency of the medical use of marihuana by the qualifying patient.
(c) The department shall verify the information contained in an application or renewal submitted pursuant to this section, and shall approve or deny an application or renewal within 15 business days of receiving it. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified. Rejection of an application or renewal is considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the circuit court for the county of Ingham.
(d) The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient’s approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.EHB 4210
(e) The department shall issue registry identification cards within 5 business days of approving an application or renewal, which shall expire 2 years after the date of issuance. Registry identification cards shall contain all of the following:
(1) Name, address, and date of birth of the qualifying patient.
(2) Name, address, and date of birth of the primary caregiver, if any, of the qualifying patient.
(3) The date of issuance and expiration date of the registry identification card.
(4) A random identification number.
(5) A photograph, if the department requires one by rule.
(6) A clear designation showing whether the primary caregiver or the qualifying patient will be allowed under state law to possess the marihuana plants for the qualifying patient’s medical use, which shall be determined based solely on the qualifying patient’s preference.
(f) If a registered qualifying patient’s certifying physician notifies the department in writing that the patient has ceased to suffer from a debilitating medical condition, the card shall become null and void upon notification by the department to the patient.
(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.
(h) The following confidentiality rules shall apply:
(1) Subject to subdivisions (3) and (4), applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.
(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Except as provided in subdivisions (3) and (4), individual names and other identifying information on the list are confidential and are exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(3) The department shall verify to law enforcement personnel and to the necessary database created in the marihuana tracking act as established by the medical marihuana facilities licensing act whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
(4) A person, including an employee, contractor, or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.
(i) The department shall submit to the legislature an annual report that does not disclose any identifying information about qualifying patients, primary caregivers, or physicians, but does contain, at a minimum, all of the following information:
(1) The number of applications filed for registry identification cards.
(2) The number of qualifying patients and primary caregivers approved in each county.
(3) The nature of the debilitating medical conditions of the qualifying patients.
(4) The number of registry identification cards revoked.
(5) The number of physicians providing written certifications for qualifying patients.
(j) The department may enter into a contract with a private contractor to assist the department in performing its duties under this section. The contract may provide for assistance in processing and issuing registry identification cards, but the department shall retain the authority to make the final determination as to issuing the registry identification card. Any contract shall include a provision requiring the contractor to preserve the confidentiality of information in conformity with subsection (h).
(k) Not later than 6 months after the effective date of the amendatory act that added this subsection, the department shall appoint a panel to review petitions to approve medical conditions or treatments for addition to the list of debilitating medical conditions under the administrative rules. The panel shall meet at least twice each year and shall review and make a recommendation to the department concerning any petitions that have been submitted that are completed and include any documentation required by administrative rule.
(1) A majority of the panel members shall be licensed physicians, and the panel shall provide recommendations to the department regarding whether the petitions should be approved or denied.
(2) All meetings of the panel are subject to the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.7 EHB 4210
(l) The marihuana registry fund is created within the state treasury. All fees collected under this act shall be deposited into the fund. The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earnings from fund investments. Money in the fund at the close of the fiscal year shall remain in the fund and shall not lapse to the general fund. The department of licensing and regulatory affairs shall be the administrator of the fund for auditing purposes. The department shall expend money from the fund, upon appropriation, for the operation and oversight of the Michigan medical marihuana program. For the fiscal year ending September 30, 2016, $8,500,000.00 is appropriated from the marihuana registry fund to the department for its initial costs of implementing the medical marihuana facilities licensing act and the marihuana tracking act.
7. Scope of Act.
Sec. 7. (a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.
(b) This act does not permit any person to do any of the following:
(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.
(2) Possess marihuana, or otherwise engage in the medical use of marihuana at any of the following locations:
(A) In a school bus.
(B) On the grounds of any preschool or primary or secondary school.
(C) In any correctional facility.
(3) Smoke marihuana at any of the following locations:
(A) On any form of public transportation.
(B) In any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.
(6) Separate plant resin from a marihuana plant by butane extraction in any public place or motor vehicle, or inside or within the curtilage of any residential structure.
(7) Separate plant resin from a marihuana plant by butane extraction in a manner that demonstrates a failure to exercise reasonable care or reckless disregard for the safety of others.
(c) Nothing in this act shall be construed to require any of the following:
(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.
(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution is punishable by a fine of $500.00, which is in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.
(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.
Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.
Enacting section 2. This amendatory act clarifies ambiguities in the law in accordance with the original intent of the people, as expressed in section 2(b) of the Michigan medical marihuana act, 2008 IL 1, MCL 333.26422:
“(b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.”. [Emphasis added.]
This amendatory act is curative and applies retroactively as to the following: clarifying the quantities and forms of marihuana for which a person is protected from arrest, precluding an interpretation of “weight” as aggregate weight, and excluding an added inactive substrate component of a preparation in determining the amount of marihuana, medical marihuana, or usable marihuana that constitutes an offense. Retroactive application of this amendatory act does not create a cause of action against a law enforcement officer or any other state or local governmental officer, employee, department, or agency that enforced this act under a good-faith interpretation of its provisions at the time of enforcement.
STATE OF MICHIGAN
98TH LEGISLATURE
REGULAR SESSION OF 2016
Introduced by Reps. Lyons, Goike, Bumstead, Yonker, Kelly, Pettalia, Callton, Pscholka, Potvin, Dillon, Irwin, Hoadley, Maturen, Singh, Sarah Roberts and Kosowski
