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?

Controlled Substance Classifications Outlined - Michigan Criminal Defense Attorney Josh Jones

Controlled Substances And Their Classifications Explained, Kind Of

A controlled substance is “a drug, substance, or immediate precursor that is included in schedules 1 to 5.” MCL § 333.7104. The Board of Pharmacy determines which drugs, substances, and immediate precursors are assigned to each of the schedules. As set forth in MCL § 333.7202, the following factors are to be used by the Board of Pharmacy in determining a controlled substance’s placement on one of the five schedules:

1.     The drug’s actual or relative potential for abuse.


2.     If known, the scientific evidence of the drug’s pharmacological effect.

3.     The state of current scientific knowledge about the drug.

4.     The historical and contemporary patterns of the drug’s abuse.

5.     The scope, duration, and significance of the drug’s abuse.

6.     The public health risk related to the drug.

7.     The drug’s potential for producing psychic or physiological dependence liability.

8.     Whether the drug is an immediate precursor of another drug already regulated under the Act.

Schedule 1 Outlined:

MCL § 333.7211, requires that controlled substance classified as schedule 1 drug must have a high potential for abuse and either:

1.     has no accepted medical use in treatment in the United States, or

2.     lacks accepted safety for use in treatment under medical supervision, and it includes marijuana, opiates and opium derivatives (e.g., heroin), hallucinogenics (e.g., LSD, peyote, mescaline, and psilocybin), synthetic equivalents of the substance found in marijuana, MDMA (ecstasy), BZP, naphyrone (“rave”), mephedrone, methylenedioxypyrovalerone (“bath salts”), and other related substances.

Note: 11‐carboxy‐THC, “a byproduct of metabolism created when the body breaks down the psychoactive ingredient of marijuana,” is not a schedule 1 controlled substance because it fails to meet the requirements of a schedule 1 controlled substance under MCL § 333.7212. See also People v Feezel.

Schedule 2 


MCL § 333.7213 explains that a substance classified as a schedule 2 drug must meet the following requirements:

1.     its potential for abuse is high,

2.     it has currently accepted medical use in treatment in the United States or it has currently accepted medical use with severe restrictions, and 


3.     its abuse could lead to severe psychic or physical dependence. 


Schedule 2 drugs include opium and opiate and their derivatives (e.g., codeine, morphine, methadone, hydrocodone, and oxycodone), coca leaves and derivatives (cocaine and cocaine‐related substances), amphetamines, any substance containing methamphetamine, and central nervous system depressants (e.g., methaqualone and secobarbital). 


Schedule 3 


MCL § 333.7215, classifies a substance as a schedule 3 drug if it meets all of the following requirements:

1.     it has less potential for abuse than the substances in schedules 1 and 2,

2.     it has currently accepted medical use in treatment in the United States, and

3.     its abuse could lead to moderate or low physical dependence or high psychological dependence. 


Schedule 3 substances include certain stimulants and depressants, and materials, compounds, mixtures, or preparations containing limited quantities of certain listed narcotic drugs, which can be found in MCL § 333.7216.

Schedule 4 and 5 decrease in the amount of abuse that can be found with using the substances listed. The chemical compounds and substances on these lists are determined by MCL § 333.7218 and MCL § 333.7220

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.

Constructive Possession Explained - Josh Jones, Criminal Defense Attorney

Constructive Possession - It Applies To All Sorts Of Items

The extension of possession without actually having possession is known as constructive possession. This means that an individual can be charged with a possession crime even though he or she may not actually and physically possess the criminal item or thing. 

Constructive possession can only occur if the individual being charged has control or dominion over the thing in question. Meaning, for example, and individual who owns and holds the only key to a security box would always have constructive possession over it. Therefore, if contraband were found inside the box then the owner could be charged for the contraband because he would be the only individual who could access or control what goes in and out of the box. However, there must still be proof shown that the individual owner knew of the contents or existence.

The theories of possession, and thus constructive possession, vary according to statute and the particular item of contraband in question. For example, a conviction for felony-firearm under Michigan law requires knowledge of the firearm and the firearm being reasonably accessible to the defendant. However, for a controlled substance charged, an individual can or could be convicted of a possession charge simply by having it in his house, if he were the sole owner and knew of the substance.

So in the end, constructive possession cases that bring about criminal possession charges will be case-by-case dealings. They will revolve around the circumstances of each individual’s case.

PLEASE DO NOT RELY upon any of the information contained in this article when trying to represent yourself. You should always consult with an attorney before relying upon any written advice, article, blog etc.