Michigan Medical Marihuana - People v Nicholson - MMMA Cardholders - Patients and Caregivers - Criminal Defense Lawyer, Josh Jones

A short yet important topic that impacts Michigan Medical Marijuana patients and caregivers revolves around medical marijuana cards and paperwork. The Court of Appeals indicated that patients and caregivers must have their paper or medical marijuana card on them in order to receive protection under the Michigan Medical Marijuana Act (MMMA). See People v Nicholson.

The facts of the case, in Nicholson, indicated that the defendant was a passenger in a vehicle and was holding one ounce of marijuana. The defendant had applied for his medical marijuana card, yet he had not received actually it. Moreover, the paperwork that indicating he was authorization to use medical marijuana was in his own vehicle, which they were not driving at the time of the arrest.

The court inevitably concluded that immunity would not be granted to the defendant because he did not have his paperwork accessible to him at the time of arrest. However, the court went on to indicate that the defendant is immune from prosecution because he does possess his card prior to the time of prosecution. The court inevitably remanded the case back to the circuit court for further investigation into whether the activities on the date of arrest involved the medical use of marijuana.

Therefore, the issue, in Nicholson, came down to whether he had his card/paperwork prior to prosecution and whether his actions that lead to his arrest qualify as medical use as indicated in the MMMA. It should be noted that the defendant was arrested because he did not have his paperwork on him, which any medical marijuana patient and/or caregiver should take note of. You should ALWAYS carry your paperwork or card, even if you are not holding.

PLEASE DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. WE HOPE TO SPEAK WITH YOU SOON. 

Judges & Medical Marihuana Immunity [People v Jones] - MMMA Case - Michigan Criminal Lawyer, Josh Jones

Judges Deciding Immunity - People v Jones

On July 9, 2011, the Michigan Court of Appeals brought about further interpretation on the Michigan Medical Marihuana Act (aka MMMA). More specifically, People v Jones explained that the decision of Section 4 Immunity is left up to the judge, but in what cases or circumstances?

Generally, an issue of fact (or a factual issue) is to be decided by a Jury (or the trier of fact), yet an issue of law (or a legal issue) is to be decided by the judge. This is long standing procedure. However, here in the State of Michigan and in certain situations and instances a judge still determines factual issues within a case. These situations include entrapment, voluntariness of statements, suppression of physical evidence, or consenting to search, to name a few.

The issues at hand in the Jones case dealt with whether or not the Defendant was a resident of the State at the time of her application and whether she was possessing marihuana for the medical use as a caregiver and patient.

The court paralleled Section 4 to the Entrapment Defense, and ultimately determined that Section 4 “fact-finding is a question for the trial court to decide. Accordingly, the trial court’s decision finding that [Section] 4 immunity fact-finding is a question for the jury is reversed.” Jones. 

People v Carruthers - Retroactivity MMMA - Criminal Defense Attorney Josh Jones - July 14, 2013 - Michigan Medical Marihuana Act

People v Carruthers - Part II - Retroactivity 

The Michigan Court of Appeals provided multiple insights into the Michigan Medical Marihuana Act (aka MMMA) with its opinion in People v Carruthers. The biggest and boldest was how it defined “usable marihuana.” However, it also explained how the MMMA can be retroactive in his ability to apply its applicable defenses in certain cases or circumstances.

The court explained that the trial court committed plain error when it failed to allow the defendant to raise a Section 8 (Affirmative Defense) during an evidentiary hearing or during trial. The trial court held that the defendant did not meet the strict requirements of Section 4 (Immunity), and thus was precluded from asserting any defense under the MMMA. It must be noted, however, as the Court of Appeals did, that the opinion in People v Kolanek had not yet been penned, and thus was not controlling on the trial court in Carruthers.

Remember, pursuant to Kolanek, the Michigan Supreme Court explained that two identifiable defenses are found within the MMMA, Immunity and an Affirmative Defense. The defendant MUST NOW raise his or her affirmative defense in a pretrial motion in order to maintain his or her right to assert such a defense. Therefore, the trial court in Carruthers did not have the guidance of the Kolanek opinion. The most important part of the Carruthers opinion is that the defendant was able to have his case remanded back to the trial court and assert his affirmative defense, since he did not qualify for Immunity due to the resin based brownies being considered non-usable marihuana. 

When it comes to the MMMA it is essential to not only know the law, but to understand the law, especially when it is constantly in flux with itself. The MMMA protects certain individuals from criminal prosecution, and it provides a defense to others; however, it is imperative to obtain counsel when or if you are in trouble with the law while dealing with the MMMA. We have your back.

DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. HOPE TO SPEAK WITH YOU SOON.

People v Carruthers - Michigan Medical Marihuana Act (aka MMMA) - Defining "Usable Marihuana" - Criminal Defense Attorney Josh Jones

The Plain-Meaning Definition Of “Usable Marihuana

The Court of Appeal on July 11, 2011, provided an opinion that was high in parts, yet very low in other parts. See People v Carruthers. The court specially and repeatedly stated that resin (or THC extract) based brownies are not considered to be “usable marihuana” as explained in Section 4 (Immunity). However, the court also explained that because resin brownies are not considered to be “usable” an individual in possession of such brownies does not qualify for Section 4.

The court, in essence, found a loophole around qualifying an act, involving marihuana, as being covered by Section 4, similarly as the Michigan Supreme Court in People v McQueen found.

So…. Usable Marihuana is what?

Usable Marihuana is defined as:

“dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.” MCL § 333.2642(3)(k). 

Therefore, usable marihuana does not include all parts of the marihuana plant, meaning the resins, nor “every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” Marihuana on the other hand includes “all parts” of the cannabis plant, as well as “the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. See People v Carruthers.

The court dealt with the resin based product known as “Cannabutter,” which contained THC extract. The THC extract can be taken from any part of the plant, and it would still, under the Court of Appeals opinion, not be considered “usable marihuana” under the Michigan Medical Marihuana Act (aka MMMA).

So in the end, the Court of Appeals narrowed the definition of what constitutes “usable marihuana,” and explained that substance must contain plant material in order to be considered or attempting consider it “usable,” as required by Section 4. It also went on to explain that Section 8 (Affirmative Defense) does not maintain a narrow definition for marihuana used to treat or alleviate a medical condition. Therefore, it allows for Section 8 to be used when edibles are involved in the factual basis of the act at issue.

The court, however, did note that the potency of resin brownies, under a Section 8 defense, would come into play when determining whether the individual possessed an amount reasonably necessary to alleviate or treat the medical condition.  The court stated that “[g]iven the unmeasurable nature of the highly potent THC contained in such edibles, the health and welfare of Michigan citizens would be threatened, and prosecutions for possession and use of edibles containing higher-than-allowed quantities of THC would be systematically thwarted.” See People v Carruthers.

It is always necessary to know the law, know your rights, and maintain your ability to fight, especially when dealing with the MMMA. This opinion has made Section 4 narrower and more specific on what you can and cannot do in order to qualify for Immunity. So who has your back when you want to smoke or munch carefree?

People v Koon - Operating Under The Influence - MMMA - Michigan Marihuana Lawyer Josh Jones - Michigan Criminal Defense

People v Koon - Operating Under The Influence And The MMMA

It may be considered a landmark case for the Michigan Medical Marihuana community. The Michigan Supreme Court, in People v Koon, has held that individuals who qualify for immunity will not automatically be found to be driving “under the influence” simply because they internally possess medical marihuana.

The Court distinguished the Michigan Motor Vehicle Code, MCL 257.625(8), from the Michigan Medical Marihuana Act (aka MMMA), which allows for the use of medical marihuana. Moreover, the Court pointed out that the Act does forbid an individual from operating a motor vehicle under the influence of marihuana. MCL 333.26427(b). However, as the Court pointed out, the Act does not define what it means by “under the influence.”

Therefore, the Court concluded that the Motor Vehicle Code was not applicable in Koon case. The reason for this is because the MMMA specifically states that any and all other statutes within the State of Michigan that are inconsistent with the MMMA will not apply to such individuals, but of course they must first be immune as defined in the Act. It is important to note that the individuals must be engaged in the medical use of marihuana in order to qualify for this interpretation.

In the end, an individual qualifying for immunity under Section 4 will be allowed to internally possess medical marihuana and operate a motor vehicle. Yet that still begs the question of what qualifies as “under the influence” of marihuana as defined in Section 7 of the Act?

To answer this question the case will likely and seems to turn on other factors that occurred during and/or before the traffic stop, i.e. proving that you are visibly impaired or under the influence.

This means that swerving, weaving, rolling stops, speeding, and the like will all come into play when an officer is attempting to establish reasonable suspicion and probable cause that you are under the influence of marihuana or visibly impaired. More over, the factors just listed, do not include the care smelling like burnt marihuana, an individual’s eye’s being red, a roach sitting in the ashtray, or the like, which will also increase the risk and probable cause that you are driving while under the influence.

Remember, know the law, know your rights, and lawyer-up with Josh Jones. He has your back.

DO NOT RELY ON THESE LEGAL OPINIONS AND OBSERVATIONS WHEN REPRESENTING YOURSELF IN COURT. THESE ARTICLES ARE NOT MEANT TO COMPENSATE OR EFFECUATE LEGAL REPRESENTATION. YOU SHOULD AND MUST CONTACT AN ATTORNEY AND DISCUSS WITH HIM OR HER THE CONSEQUENCES OF ANY AND ALL IDEAS, STATEMENTS, OPINIONS, EXPRESSIONS OR OTHERWISE STATED ON THIS SITE. HOPE TO SPEAK WITH YOU SOON.