Victory for Medical Marijuana Patients in Michigan Court of Appeals

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or provision of a statute that conflicts with a defendant’s right to MMMA-compliant use of marijuana is preempted or superseded by the MMMA”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.

Read the Court of Appeals Opinion Here

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.

NEWS ARTICLES ABOUT IT

• Free Press – Michigan appeals court OKs medical marijuana for those on probation
• MLive – Read The MLive News Article
• The Oakland Press – Court rejects restriction on use of medical marijuana

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