Michigan Medical Marihuana Act Recent Court Decisions

[dropcap class=”kp-dropcap”]A[/dropcap]t the end of 2015, Michigan appellate courts issued several important opinions.

The Michigan Court of Appeals held that smoking cannabis in a vehicle in a parking lot open to the public constitutes smoking in a public place, an activity specifically prohibited by the MMMA. (People v. Robert Carlton, No. 321630, issued November 24, 2015). The Court made clear that it is not prohibited to smoke in a private place which is in public view, but it is illegal to smoke in any place generally open to the public. Parking spaces at a casino are generally open to the public.

On December 8, another panel of the Court of Appeals held that it was permissible for seven uniformed and armed police to wake residents at home to do a “knock and talk” at around 4 a.m. or 5 a.m. in order to persuade suspects to allow a “consent search”; one allowed “voluntarily” without demand for a warrant, but in a manner which many people would find unduly coercive. Those cases (People v. Frederick and People v. VanDoorne, case nos. 323642 and 323643) are likely to be appealed to the Michigan Supreme Court.

Both the above-cited opinions are “published” opinions of the Court of Appeals—setting precedent for courts throughout Michigan.

As bad as those decisions are, which stand until reversed by the Michigan Supreme Court, there is hope for eventual reversal by the higher court.

The Michigan Supreme Court also rendered recent decisions as well. Both People v. Ryan Bylsma and People v. David Overholt, Michigan Supreme Court (no. 148440) were remanded to the Court of Appeals for consideration in each case “of whether the defendant, who possessed, cultivated, manufactured or delivered marijuana to a patient or caregiver to whom he was not connected through the registration process of the MMMA [“]may assert the medical purpose for using marijuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person show the elements listed in subsection (a).[“]

While the McQueen case decided in 2012 considered Section 4 of the act (regarding cards and their effect), it has taken the appellate courts much longer to address the broad protections of Section 8 of the MMMA. Section 8 provides that a person is protected if three elements are met: A doctor recommended it, the quantity is “no more than reasonably necessary” to supply the patient(s), and the cannabis is for medical use. So long as none of the prohibitions are violated (such as possession on school property), any case should be dismissed.

The Section 8 argument is one which has taken much time to come to the court, and in fact, the Court of Appeals had to be ordered to decide these cases “as on leave granted” which was something they refused to do on their own. The right to a separate potential defense also had to go to the Michigan Supreme Court to be established several years ago, in the Kolanek and King cases, No. 142695, decided in 2012.

Ryan Bylsma’s case already has been to the Michigan Supreme Court, which held that collective or cooperative growing is not allowed under Section 4 of the act. The issue now pending is that although such growing may not be allowed, the Section 8 defense is broad enough to protect against criminal charges for that act. This case could be an eventual opportunity for the Michigan Supreme Court to revisit the bizarre holding in McQueen, which had to reach so far to avoid protecting transfers between any card holders, that it resulted in the crazy notion that the MMMA is “asymmetrical:” A patient is protected from prosecution no matter the source where they obtain their medicine, but the person on the other end of the transfer, who is selling, donating, giving or otherwise transferring or delivering cannabis to a patient is protected only if they are the caregiver for that patient connected through the official registry of the MMMA.

Finally, the Michigan Supreme Court let stand the 2012 ballot measure decriminalizing cannabis in Grand Rapids. Meanwhile, MI Legalize expects to make the ballot in 2016.