For the last 13 years of the Michigan Medical Marijuana Act (“MMMA”), patients on probation have asked that simple question. Relying on the simple plain language in the act that protects a medical marijuana patient from denial of any right or privilege (probation), as well as protection from penalty in ANY MANNER, as long as they followed the medical marijuana laws and rules.
Until now, it was up to each individual courtroom to decide the patients fate. The judges, prosecutors, probation officers and drug testing labs decided which medicines a probationer could use. In some cities and townships medical marijuana was allowed, but in others, patients had to fight. Some were successful, most were banned from using their doctor recommended medicine, and would likely face serious penalties and jail time if they broke those probation rules. Thousands of patients were sent back to jail because of testing “dirty.”
As president of the Michigan Medical Marijuana Association, Michael Komorn has fought for every patient on this issue in courtrooms across the state, by trying to secure their rights under the law to not be penalized for the legal use of medical marijuana. Komorn has fought for patients on bond to be able to use medical marijuana as a bond condition. With over 300,000 registered medical marijuana patients in Michigan, thousands of patients had their bond revoked due to choosing their medicine, as recommended by a doctor.
The justice system has crushed medical marijuana caregivers and patients for more than a decade on many issues. Usually with the excuse that “marijuana is illegal” or “a trial court has considerable discretion to set conditions of probation.”
Four years ago, this was the excuse in People v Magyari that the Michigan Court of Appeals used to deny a registered medical marijuana patient from administering medical marijuana for his condition. The Court stated in its opinion:
“Defendant has failed to offer any persuasive argument for the proposition that the MMMA prohibits a trial court from ever imposing a probationary condition barring the use of medical marijuana. The challenged probationary condition is reasonably related to the goal of defendant’s rehabilitation, including preventing future criminality, as well as protecting the public. Affirmed.”
Until February 2021, when People v Thue was published, that was the law of the land.
Today, attorneys Michael Komorn and Alyssa McCormick, of Komorn Law, provided the “persuasive argument” for medical marijuana on probation. That persuasive argument boiled down to the plain language of the law that so many courts have ignored and disparaged for the last 13 years. The plain language of the law in section 4, for the right to use medical marijuana, has not changed, so why did it take this long to have a correct ruling? No one knows.
The Court ruled:
“The Michigan Probation Act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3. However, provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.”
The Court went on to state:
“We also conclude that the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” under MCL 333.26424(a) of the MMMA.”
Most times, courts will not rule on both of these issues. Due to the “first out” rule, the appeals courts usually decline to rule on further issues such as penalties.
One of the more incredible rulings in this opinion was on the issue of mootness. Because of the details of the case, Komorns client’s probation ended before the appeal could be heard. The court in its wisdom understood that this issue was of such public importance and issued an opinion even though the client no longer had standing.
The only other medical marijuana case Komorn can remember that issued a ruling where the defendant did not have standing was when the Michigan Court of Appeals issued an opinion against a patient for taking his plants out of his enclosed locked facility for spraying with pesticide. He lacked standing because he died before the court could issue its opinion. The court issued its opinion anyway, post-mortem. Issues of standing and mootness are the FIRST requirements of having a court review an issue.
Having a court rule favorably while overlooking standing and mootness is quite extraordinary. One can only chalk it up to experience and strategy, or as some call it, “lawyer magic.”
Some judges have called the MMMA the worst law they’ve ever seen.
Courts have ruled against patients in all kinds of cases because they personally feel that marijuana is bad.
The Michigan Court of Appeals in Magyari even claimed that marijuana was addictive! “Further, the trial court found that defendant would simply be replacing one addictive drug—alcohol, for another—marijuana.”
The courts have been wildly inconsistent with opinions, rulings, reversals and remands on the medical marijuana law.
Some predictions are that this ruling will also apply to patients on bond or parolees. While this might be true, we have seen most recently that the Michigan Supreme Court has upended even the simplest of understandings of the plain language of the MMMA, specifically in the case of Deruiter v Byron Township. In Deruiter, the Court unanimously said that a township could craft an ordinance that added requirements to the MMMA. This flies in the face of earlier rulings from the MSC where the justices said in oral arguments that you cannot add surplusage or make any words nugatory within the act.
Said another way, because of the ruling in Deruiter, what would stop a locality from drafting an ordinance with additional requirements to administer medical marijuana while on probation?
“As in Qualls and Miller, the local ordinance goes further in its regulation but not in a way that is counter to the MMMA’s conditional allowance on the medical use of marijuana. We therefore hold that the MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.,13 so long as the municipality does not prohibit or penalize all medical marijuana cultivation, like the city of Wyoming’s zoning ordinance did in Ter Beek II, and so long as the municipality does not impose regulations that are “unreasonable and inconsistent with regulations established by state law.” Qualls, 434 Mich at 363.”
It is also suggested that because the MMMA and the 2018 Michigan Regulation and Taxation of Marijuana (MRTMA) use similar language that this ruling could be used to have the same protective effects of all adults 21 and over to use marijuana while on probation.
Sec. 4. (a) A qualifying patient … is not subject to … penalty in any manner, or denied any right or privilege… for the medical use of marihuana in accordance with this act
1. Notwithstanding any other law or provision of this act … the following acts by a person 21 years of age or older are … not grounds for … penalty in any manner … and are not grounds to deny any other right or privilege …
Both laws have sections stating that all other laws do not apply to them. The intent of both laws is the same– to give people the right to have medical marijuana and legal marijuana. Under no other circumstances can an individual be denied access to marijuana, as long as they follow the MMMA and or MRTMA.
HANDS OFF OUR MARIJUANA ALREADY. THE PEOPLE HAVE SPOKEN.
Strangely, there is an unattributed quote, possibly from one of the judges in the case which addresses this in the opinion:
“We note, however, that the MMMA is inapplicable to the recreational use of marijuana, and thus, a trial court may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use, as well as for marijuana use in violation of the MMMA.”
While the opinion did not directly address the MRTMA (notwithstanding the weird uncited and dicta quotation at the bottom of page 6-7 of the slip opinion), it seems that the statutory language in MCL 333.27955(1) and MCL 333.27954(5) would compel a similar outcome with respect to adult-use marijuana.
The Thue opinion relies on the preemption language in MCL 333.26427(e) and finds that revocation of probation is a “penalty” in violation of Section 4 of the MMMA.
Similarly, Section 5(1) of the MRTMA provides, “Notwithstanding any other law or provision of this act, and except as otherwise provided in section 4 of this act, the following acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege . . .”
While Section 4(5) of the MRTMA provides, “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”
It would seem that the takeaway of Thue opinion is that revocation of probation is a “penalty” and the MRTMA prohibits the imposition of a penalty for conduct that is permitted by the MRTMA, it would stand to logically follow that the MRTMA similarly protects those who are age 21+ from having their probation revoked for engaging in conduct that is protected by the MRTMA.
An issue to be fought in court in the future.
Don’t face the system alone– Hire The Best If you want your right to use marijuana while on bond or probation Call Komorn Law PLLC248-357-2550
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain.
Lorincz lost custody of his 6-year-old son in part due to this felony.
After reporting on the case over nine months, FOX 17 exclusively reported a shocking email chain that spans months between Michigan State Police Forensic Science Division employees and the Attorney General’s office.
Obtained through the Freedom of Information Act, these emails show debates on how the state’s crime labs changed how they report marijuana. The defense, attorney Michael Komorn and Komorn Law, PLLC, is charging state agencies with directing the lab employees to falsely present results on marijuana products, including cases where plant material is not seen.
The result: felony charges Komorn argues are lies.
Komorn showed evidence in emails that MSP Forensic Science Division is being directed by the Attorney General’s office and the Prosecuting Attorneys Association of Michigan (PAAM) to change the way marijuana is reported to create felonies. PAAM is a non-profit, which is governed by a board of directors including the Attorney General.
“What is unique about this case is that they [the prosecution] are relying on the lab to report these substances so that they can escalate these crimes from misdemeanors to felonies,” said Komorn.
Documents obtained via FOIA, showcase emails about meetings (for instance, July 2013) and direct communication between MSP Forensic Science Division directors, scientists, PAAM, as well as officials with the AG’s office.
An excerpt from an email dated Dec. 13, 2013 suggests an AG official influenced the state crime labs on whether it is the lab’s responsibility to determine if THC tested is natural or synthetic; again, this is the difference between a misdemeanor and a felony.
A technical leader of controlled substances with MSP crime labs wrote an email to colleagues and quoted Ken Stecker, an official with the AG’s office:
“That is my opinion, THC is a schedule 1 drug regardless of where it comes from. I hope that helps. Ken”
Then, the technical leader of controlled substances at a state lab continues to direct other state lab personnel and write:
“Examiner’s that are identifying food products or other non-plant materials as marihuana without the visualization of any plant material should discontinue this practice. The final identification of all phases of testing can only be marihuana when plant fragments, portions, samples, plant hairs or actual plants are visualized by the scientist. To my knowledge, the only other two laboratories that have expressed this concern are Northville and Lansing.”
Komorn believes this policy change is not science-based.
“This is like a political decision, and somewhere in there they say well Ken Stecker is going to be the consultant on this going forward, and his position is that THC is a schedule 1,” said Komorn.
“That’s not the law. That’s an incorrect, illegal misinterpretation of the law that he then decrees as the policy for the state lab.”
This AG official’s “opinion” was written into lab procedure. Several emails show other MSP lab supervisors and scientists vehemently oppose it.
For example, a MSP Lansing controlled substances supervisor wrote his disagreements with this policy to colleagues, including an excerpt from an email dated Feb. 14, 2014:
“Prosecutor’s rely on our reports to determine what to charge a person with. A report that states delta-1-THC without any other statement would lead a Prosecutor to the synthetic portion of the law since this is the only place where THC is specifically listed. 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.”
This supervisor wrote further concerns in an email to many colleagues nearly one year later, dated Jan. 28, 2015, writing in part:
“Upon reading this correspondence I immediately thought about the Guiding Principles training we receive yearly. Under Professionalism it states that “Conclusions are based on the evidence and reference material relevant to the evidence, not on extraneous information, political pressure, or other outside influences.” Whether or not an individual has a medical marijuana card is immaterial to how we report out our results.
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 marihuana it would lead to Prosecutors charging people with synthetic THC. This appears to be what the agency wants.”
Another MSP Northville lab scientist wrote the following to colleagues, stating concerns with new reporting policy:
“In order to place the actual compound THC in schedule 1, the criteria of ‘synthetic equivalent’ should be met. Since we really can’t do this, there are many of us who feel that these new evidentiary materials containing THC without any botanical morphology characteristics (candy, butter, etc..) should be identified as resinous extracts of Marihuana.
If you are to call it ‘THC,’ at a minimum, a statement should be provided in the additional information stating that the ‘origin, whether naturally occurring or synthetic could not be determined.’ Also, by going out on that limb and calling it THC, you now jump from a misdemeanor to a felony charge.
We’re bringing this up because there seemed to be some concern about uniformity in making these calls. Further, it is highly doubtful that any of these Med. Mar. products we are seeing have THC that was synthesized. This would be completely impractical. We are more likely seeing naturally occurring THC extracted from the plant!”
“The most damning evidence is that their own forensic scientists, when they’re objecting to the way the lab is going to change their reporting policies, calls them out that they can’t do it based on forensic science, and yet they do it anyways,” said Komorn.
Thursday afternoon, the Prosecuting Attorneys Association of Michigan’s President Michael Wendling responded to FOX 17’s questions with the following statements:
“The Michigan State Police Forensic Science Division sets its own testing and reporting protocols. Neither PAAM nor county prosecutors make those protocols.”
“The MSP Forensic Science Division makes its own decisions relative to the lab protocol. Any decision to report that the source of THC is undetermined does not create a misdemeanor or felony offense. Lab reports document the findings of scientific testing. Those findings, in conjunction with other relevant evidence are considered by prosecutors may be used in when the decision whether to charge a crime and which crime to charge is made.”
“Prosecutors do not receive requests to charge criminal cases from the MSP Forensic Science Division. The MSP Forensic Division reports scientific findings. Prosecutors receive those reports and use them to make decisions regarding whether there is sufficient evidence to pursue criminal charges. Any accusation that the Lab and PAAM are directing lab personnel to report crimes without evidence is untrue. PAAM has no authority over, nor does it direct the MSP Forensic Science Division.”
Yet again in this case, several lab scientists and supervisors expressed they are against this new marijuana reporting protocol.
As FOX 17 reported, the defense filed several motions in Ottawa County Circuit Court this week. The motions ask for Max Lorincz’s charges to be dismissed, as well as asking the accused organizations’ employees to show cause, or credible evidence to show science backs their protocol, in order to not be held in contempt of court.
Medical marihuana: licenses; definition of applicant; modify. Amends sec. 102 of 2016 PA 281 (MCL 333.27102). Last Action: 04/17/2019 – ASSIGNED PA 0003’19 WITH IMMEDIATE EFFECT
Medical marihuana; other; requirement for health warning labels on medical marihuana products sold in Michigan; provide for. Amends sec. 206 of 2016 PA 281 (MCL 333.27206). Last Action: 02/20/2020 – assigned PA 32’20 with immediate effect
Medical marihuana; licenses; operating a facility without a license; provide prohibition for ineligibility to receive a license. Amends sec. 402 of 2016 PA 281 (MCL 333.27402). Last Action: 04/30/2019 – REFERRED TO COMMITTEE OF THE WHOLE
Weapons; firearms; possessing or carrying a firearm while having a certain level of tetrahydrocannabinol in blood; allow prohibition. Amends sec. 7 of 2008 IL 1 (MCL 333.26427). TIE BAR WITH: HB 4501’19, HB 4503’19, HB 4502’19 Last Action: 04/30/2019 – bill electronically reproduced 04/25/2019
Health occupations; veterinarians; consulting with animal owner on the use of marihuana and CBD oil; allow under certain circumstances. Amends 1978 PA 368 (MCL 333.1101 – 333.25211) by adding sec. 18817. Last Action: 02/26/2020 – referred to Committee on Ways and Means, with substitute (H-1)
Medical marihuana: other; marihuana that contains or has been combined with vitamin E acetate; prohibit the processing and sale of. Amends secs. 102, 502 & 504 of 2016 PA 281 (MCL 333.27102 et seq.) & adds sec. 407b. Last Action: 02/11/2020 – REFERRED TO COMMITTEE ON REGULATORY REFORM
Medical marihuana; administration; court-appointed individual to operate medical marihuana facility; allow, and require promulgation of rules to establish procedures. Amends secs. 102 & 206 of 2016 PA 281 (MCL 333.27102 & 333.27206) & adds sec. 206a. Last Action: 07/22/2020 – REFERRED TO COMMITTEE OF THE WHOLE
Medical marihuana; other; number of marihuana plants a licensee may grow; increase based on license type. Amends sec. 501 of 2016 PA 281 (MCL 333.27501). Last Action: 02/26/2020 – bill electronically reproduced 02/26/2020
Food; service establishments; issuance of a food service license to a licensed marihuana facility; allow if smoking marihuana is prohibited. Amends sec. 4107 of 2000 PA 92 (MCL 289.4107). Last Action: 03/03/2020 – bill electronically reproduced 03/03/2020
Medical marihuana; other; sale of marihuana to a registered qualifying patient who is visibly intoxicated; prohibit, and create cause of action for harm that the registered qualifying patient causes. Amends 2016 PA 281 (MCL 333.27101 – 333.27801) by adding sec. 504a. Last Action: 03/12/2020 – referred to Committee on Government Operations
Medical marihuana; licenses; eligibility for medical marihuana license; modify. Amends sec. 102 & 402 of 2016 PA 281 (MCL 333.27102 & 333.27402). Last Action: 06/04/2020 – REFERRED TO COMMITTEE ON JUDICIARY AND PUBLIC SAFETY
Medical marihuana; other; rule prohibiting medical marihuana businesses from donating to nonprofit organizations; prohibit marijuana regulatory agency from promulgating. Amends secs. 102 & 206 of 2016 PA 281 (MCL 333.27102 & 333.27206). Last Action: 06/24/2020 – bill electronically reproduced 06/24/2020
Medical marihuana; licenses; proof of financial responsibility criteria; modify. Amends sec. 408 of 2016 PA 281 (MCL 333.27408). TIE BAR WITH: HB 5923’20 Last Action: 07/21/2020 – bill electronically reproduced 07/21/2020
Medical marihuana; other; references to medical marihuana licensing board; replace with marijuana regulatory agency. Amends sec. 102 of 2016 PA 281 (MCL 333.27102). TIE BAR WITH: HB 5922’19 Last Action: 07/21/2020 – bill electronically reproduced 07/21/2020
Medical marihuana; caregivers; operation of medical marihuana caregivers in residential neighborhoods; prohibited unless allowed by ordinance. Amends sec. 4 of 2008 IL 1 (MCL 333.26424). Last Action: 08/06/2020 – bill electronically reproduced 08/06/2020
If you are interested in opening a cannabis business in Michigan you will need an attorney. Selecting a law firm is important and choosing one who has been fighting for medical marijuana patients and caregivers, adult recreational use and the legal rights of their clients for over 27 years is one of the first steps in achieving your goal in becoming a cannabis entrepreneur. Selecting an attorney who you are comfortable with and can develop a relationship with is extremely important. Search the internet and research our law firm and see how involved we are in the marijuana community. To learn more contact the office 248-357-2550 or do some research on the website Komorn Law.
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney.
California Gov. Gavin Newsom made the announcement on Thursday night, asking nearly 40 million residents in the state to stay at home to prevent the spread of the coronavirus.
“There’s a mutuality, and there’s a recognition of our interdependence, that requires of this moment that we direct a statewide order for people to stay at home,” Newsom said.
The Department states cannabis is an essential medicine.
The Department adds,”Dispensaries can continue to operate as essential businesses during this time, while practicing social distancing and other public health recommendations.”
Michigan judge slams state for ‘freakish’ regulation of medical marijuana businesses
A year-long saga of changing compliance deadlines for 50 medical marijuana shops allowed to operate unlicensed is over.
Court of Claims Judge Stephen Borrello ordered Tuesday that Michigan regulators cannot set any new compliance deadline for unlicensed pot shops.
In his 12-page opinion, Borrello chastised officials in the Department of Licensing and Regulatory Affairs for being “ill-equipped” to handle the licensing process in a timely manner — which has led to the current market of unlicensed businesses.
“At the outset, the Court notes that LARA’s entire method of handling license applications has been ‘apt to sudden change, freakish, or whimsical,’” Borrello wrote.
Temporarily operating provisioning centers will be allowed to operate until their license applications are considered by the state — and officials can only ask them to shut down 60 days after their license application has been denied, Borrello ordered in a ruling that affects eight consolidated cases.
Borrello has left the issue of whether caregiver marijuana can be used to supply the licensed market up to the state to decide.
The state’s new Marijuana Regulatory Agency is reviewing the court orders before issuing a statement, said David Harns, spokesman for the agency.
The state has been trying to hold unlicensed businesses to a licensing deadline since June 2018 but have been thwarted by court orders. Borrello has previously extended the deadline. The most recent attempt to enforce a deadline was brought forward by Governor Gretchen Whitmer, who had proposed March 31 — but another barrage of last-minute legal filings from medical marijuana businesses stopped that under a ruling from Borrello.
Komorn Law has associated our law firm expanding its cannabis and hemp industry services across the globe. If you are thinking about starting a business in this area you will need legal guidance and corporate counsel.
