DEFINING CANNABIS
The Michigan Court of Appeals issued a published decision August 16 in an appeal from another cannabis prosecution in the case of People v. Lorenzo Enrique Ventura:
“This case presents an issue of first impression in Michigan, namely what constitutes a marijuana plant. More specifically, we must determine at what point does a cutting from a mature marijuana plant that is placed in ‘grow material’ become a ‘plant’ itself that may be separately counted as a plant for purposes of determining how many plants defendant had in his possession.”
Mr. Ventura had appealed from guilty verdicts, and also lost here. Those convictions now stand, pending unlikely review by the Michigan Supreme Court. Ventura had the right to grow 24 plants. There were 21 undisputed plants, plus 22 clones.
The court cited a federal case from 1993, U.S. v. Edge, which said that a cutting is a plant, and then held that any cutting with a leaf, stem and readily observable evidence of root formation is a plant.
“Michigan is a ‘plant count’ state, and every plant counts. Careful growers should make sure not to exceed their limit, regardless of the size of any plant.”
Michigan is a “plant count” state, and every plant counts. Careful growers should make sure not to exceed their limit, regardless of the size of any plant. Cultivators also should be in compliance with all the Section 4 criteria including cultivation only in an enclosed, locked facility, which if outdoors, must comply with the additional vague requirement to have the garden “enclosed on all sides but the base” with chain link, wood slats, or similar material. One can debate whether that means it needs a top (logic argues that the top is not a side, and the word side comes from the old English word for “fence,” and who would put wood slats on top of an outdoor garden?). A grower would be well advised to use chain link or chicken wire or something as a top. What was the intention behind requiring a top on an outdoor garden in the first place? There was no discussion about any actual need for a top at the time that amendment was passed by the hostile Michigan legislature, and the issue remains a matter of dispute several years later. Some cynics believe that the provision was drafted that way to allow police to use the ambiguity to raid, arrest and charge outdoor growers who don’t expend the extra money necessary to satisfy that vague statute.
When harvest time arrives, it is not unusual for a seasonal outdoor grower to expect to exceed the Section 4 permitted amounts of usable marijuana. A caregiver is allowed to possess at any time only 2.5 ounces of usable material—defined as the dried leaves and flowers—for each patient for whom they are the caregiver. If an entire harvest is dried at one time, the caregiver may need to be able to justify that the amount of dried leaves and flowers (note—not just the bud but the shake too). The affirmative defense under Section 8 of the MMMA would allow a caregiver to possess an amount which is “no more than reasonably necessary to assure an uninterrupted supply” of cannabis for the patients served. In addition to the difficulty of justifying a quantity for the annual use of specific patients, prosecutors often refuse to agree to the automatic validity of a medical cannabis card as proof of a bona-fide physician-patient relationship. The third element of Section 8 is that the cannabis be used only for medical purposes. The quantity issue should be thought out in advance, so that a productive grower can make sure to be able to account for all of the usable product on hand. In theory, a seasonal grower might be able to flash-freeze a plant, so that it can be thawed at any time and then dried and cured.
If we just could legalize it the right way, nobody would have to go to jail for a plant.
