Feb 12, 2021 | Blog
Medical marijuana patients have had their doctor recommended use of cannabis while on probation in restricted for a long time.
Lead trial attorney and advocate for marijuana law reform Michael Komorn and his dedicated team of attorneys (specifically Ally McCormick) secured a victory in the Michigan Court of Appeals for Medical Marijuana Patients
As many battles for marijuana patients, caregivers and business clients represented by the Komorn Law Firm loom in the background – a decision has been made to set the tone for future cases involving those on probation.
Here are the key factors from the ruling as to why you should have the protections of being a medical marijuana patient.
Case background
The case involved 40-year-old Michael Thue of Traverse City, who pleaded guilty in 2019 to a road-rage incident of assault and battery, then was sentenced to a year on probation — but without permission to use medical marijuana.
Komorn Law Gets Involved
Thue, being a state registered medical marijuana patient retained Michael Komorn and the legal team at Komorn Law to argue for the right to use doctor recommended medical marijuana.
Note: Komorn Law was not involved in the original case.
The Prosecution Argued
“The prosecution argued that the district court had the ability to place restrictions on a defendant’s medication. The district court denied defendant’s motion to modify the terms of his probation, holding that it was bound by the “Circuit Court’s decision on this issue,”
The Sentence of Probation
“A sentence of probation is an alternative to confining a defendant in jail or prison and is granted as a matter of grace in lieu of incarceration.”
“Because probation is a privilege, the revocation of probation is a penalty or the denial of a privilege. Under MCL 333.26424(a) a person is protected from penalty in any manner, or denial of any right or privilege, for the lawful use of medical marijuana.”
The Court of Appeals Opinion
Below are quotes from the Court Of Appeals Opinion
“Therefore, a court cannot revoke probation upon the use of medical marijuana that otherwise complies with the terms of the MMMA.”
“a statute or provision of a statute that conflicts with a defendant’s right to MMMA-compliant use of marijuana is preempted or superseded by the MMMA”
“protection from arrest, prosecution, or penalty of any kind”.
“In other words, a condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.”
“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. The MMMA is substantially similar to the medical marijuana acts adopted in other states, including those discussed here, and immunizes persons from being subject to a penalty of any kind for the lawful use of medical marijuana.”
“We conclude that provisions of the Michigan Probation Act that allow a court to prohibit a probationer’s MMMA-compliant use of marijuana impermissibly conflict with MCL 333.26427(a) and (e) of the MMMA and are unenforceable. Further, the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” in violation of MCL 333.26424(a) of the MMMA.”
Attorney Michael Komorn
From MLive
“This opinion says the law is the law,” said Komorn, who represented the appellant in the case, “and we’re going to make the ruling that the Medical Marijuana Act and the card associated with the patient protect them from … penalty of any kind.”
It’s taken 13 years, but Michigan courts are finally fully recognizing the rights instilled by the 2008 voter-passed Medical Marijuana Act, said Farmington Hills-based defense attorney.
In Komorn’s opinion, although the ruling doesn’t address the issue, the precedent should also apply to parolees or defendants on bond with release conditions that prohibit legal medical marijuana use.
From The Detroit Free Press
That policy has become widely used in Michigan courts, applied not only when judges set conditions for probation but also when they release defendants on bond prior to trial, and when offenders are paroled. Komorn said he believed that the decision should apply to all of those situations, although the ruling doesn’t address parolees or defendants out on bond. The possession of a state registry card to use marijuana legally and for medical purposes “is exactly what this law is intended to protect, but the irony is that it’s taken this long to get recognition of this fundamental principle,” he said.
Komorn’s client, Thue, “had an accident as a kid (and) has a rod in his arm,” and to alleviate pain he uses medical marijuana instead of pharmaceutical drugs such as opioids, Kormorn said.
“He’s convinced that he’s better off with medical cannabis,” he said. Besides arguing the case in his brief to the state Court of Appeals, Komorn fought for Thue in a circuit court hearing in Grand Traverse County. In that hearing, he recalled how a prosecutor had claimed that allowing Thue to use medical marijuana was tantamount to letting people drink alcohol while on probation for drunken driving. Komorn said he shot back: “Really? Since when has there been a medical alcohol law?”
Read the Detroit Free Press article here – Michigan appeals court OKs medical marijuana for those on probation.
Read the MLive article here – Michigan judges can’t stop medical marijuana use by probationers, court rules.
But… Recreational vs Medical is a Different Story
“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.”
So having a medical marijuana patient card offers certain protections verses using cannabis recreationally. Especially when they go after your blood… to be continued.
Don’t Challenge the System To Secure Your Use.
Contact Us 248-357-2550 to notify and defend your right to utilize your doctor recommended Medical Marijuana. It will be less costly and easier than doing it from jail.
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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.
Oct 24, 2017 | Blog, Michigan Medical Marhuana Regulation, Michigan Medical Marijuana Act
FREQUENTLY ASKED QUESTIONS
When can I apply for my license?
After December 15, 2017.
What does the Medical Marihuana Licensing Board (“the board”) do?
The Medical Marihuana Licensing Board is comprised of 5 members, appointed by the Governor (with input from the Senate Majority Leader and the Speaker of the House), to administer the Medical Marihuana Facilities Licensing Act. This includes reviewing applications, issuing licenses, revoking/suspending licenses, renewing licenses, and investigating individuals who are applying for licensure or complaints received about someone who holds a license.
What are the different licenses I can apply for?
You may apply for the following licenses:
Grower
Processor
Transporter
Provisioning Center
Safety Compliance Facility
What costs are associated with a license?
Payment to secure transporters for transferring marihuana, as needed;
Annual, nonrefundable fee (of up to $5,000) to be set by, and paid to, your local municipality.
These fees are used to offset administrative and enforcement costs associated with the operation of a marihuana facility in the municipality;
An application fee per category and class of license;
Investigation and processing fees not covered by the application fee;
An annual regulatory assessment fee;
A renewal fee;
Late fees if renewal fee is not paid on time;
Provisioning centers will pay 3% on gross retail receipts
Does my municipality have any involvement with my license?
Yes, a municipality (city, township or village) has the following involvement:
Must pass an ordinance which authorizes the type of facility you wish to open;
May limit the number of each type of facility within the municipality’s boundaries;
Any other ordinances relating to marihuana facilities;
May adopt zoning regulations relating to facilities within its jurisdiction;
The municipality must receive notice from you that you have applied for any one of the five licenses;
May establish an annual fee to be paid by you; the fee can be as much as $5,000.00;
Must approve your request to have your license transferred, sold or purchased.
Does my criminal history prevent me from obtaining a license?
It depends on whether the following are true:
The applicant is ineligible if he or she has been convicted of or released from incarceration for a felony under the laws of this state, any other state, or the United States (federal law) within the past 10 years or has been convicted of a controlled substance-related felony within the past 10 years.
The applicant is ineligible if he or she has been convicted of a misdemeanor involving a controlled substance, theft, dishonesty, or fraud in any state within the past 5 years.
The applicant is ineligible if he or she has been found responsible for violating a local ordinance in any state involving a controlled substance, dishonesty, theft, or fraud that substantially corresponds to a misdemeanor in that state within the past 5 years.
The Board may take into consideration the following:
Whether the applicant has been indicted for, charged with, arrested for, or convicted of, pled guilty or nolo contendere to, forfeited bail concerning, or had expunged any relevant criminal offense under the laws of any jurisdiction, either felony or misdemeanor, not including traffic violations, regardless of whether the offense has been expunged, pardoned, or reversed on appeal or otherwise.
What prohibits a person from obtaining a license?
An applicant cannot obtain a license if any of the following is true:
The applicant is ineligible if he or she has knowingly submitted an application for a license under this act that contains false information.
The applicant cannot be a member of the Medical Marihuana Licensing Board.
The applicant is ineligible if he or she fails to demonstrate the ability to maintain
adequate premises liability and casualty insurance for its proposed marihuana facility (an insurance policy that covers at a minimum of $100,000).
The applicant cannot hold an elective office of a governmental unit of this state, another state, or the federal government; is a member of or employed by a regulatory body of a governmental unit in this state, another state, or the federal government; or is employed by a governmental unit of this state. This subdivision does not apply to an elected officer of or employee of a federally recognized Indian tribe or to an elected precinct delegate.
The applicant, if an individual, is ineligible if he or she has been a resident of this state for less than a continuous 2-year period immediately preceding the date of filing the application. This requirement does not apply after June 30, 2018.
The applicant is ineligible if the Board determines he or she failed comply with section 205(1).
The applicant fails to meet other criteria established by rule.
The applicant is ineligible if he or she has been convicted of or released from
incarceration for a felony under the laws of this state, any other state, or the United States (federal law) within the past 10 years or has been convicted of a controlled substance-related felony within the past 10 years.
The applicant is ineligible if he or she has been convicted of a misdemeanor involving a controlled substance, theft, dishonesty, or fraud in any state within the past 5 years.
The applicant is ineligible if he or she has been found responsible for violating a local ordinance in any state involving a controlled substance, dishonesty, theft, or fraud that substantially corresponds to a misdemeanor in that state within the past 5 years.
What other things may potentially prevent an applicant from getting approved for a license?
The Board may take into consideration the following:
The integrity, moral character, and reputation; personal and business probity; financial ability and experience; and responsibility or means to operate or maintain a marihuana facility of the applicant and of any other person that either:
Controls, directly or indirectly, the applicant.
Is controlled, directly or indirectly, by the applicant or by a person who controls, directly or indirectly, the applicant.
The financial ability of the applicant to purchase and maintain adequate liability and casualty insurance.
The sources and total amount of the applicant’s capitalization to operate and maintain the proposed marihuana facility.
Whether the applicant has filed, or had filed against it, a proceeding for bankruptcy within the past 7 years.
Whether the applicant has been served with a complaint or other notice filed with any public body regarding payment of any tax required under federal, state, or local law that has been delinquent for 1 or more years.
Whether the applicant has a history of noncompliance with any regulatory requirements in this state or any other jurisdiction.
Whether at the time of application the applicant is a defendant in litigation involving its business practices.
Whether the applicant meets other standards in rules applicable to the license category.
Whether the applicant has been indicted for, charged with, arrested for, or convicted of, pled guilty or nolo contendere to, forfeited bail concerning, or had expunged any relevant criminal offense under the laws of any jurisdiction, either felony or misdemeanor, not including traffic violations, regardless of whether the offense has been expunged, pardoned, or reversed on appeal or otherwise.
Where can I find more information on each type of license?
Details on each license category can be found in Part 5 of the Michigan Medical Marihuana Facilities Licensing Act, 2016 PA 281.
See- http://legislature.mi.gov/doc.aspx?mcl-281-2016-PART-5-LICENSEES
http://komornlaw.com/wp-content/uploads/2017/03/LARA-Marihuana-Act-HB4209-HB4827-HB4210-Frequently-Asked-Questions.pdf
For more information visit these sites
More Info Regarding House Bills
Marihuana Act Business Development
MMMP.org
Komorn Law
Michigan Medical Marihuana
