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?