Some Good Law on the Books, For Now

egislation to protect and
buttress the Michigan Medical Marijuana Association (MMMA)–or a lack thereof–has
taken the air time from two canna-friendly appellate court decisions that are
the law of the land for the foreseeable future. Let’s take a brief moment to
relish in a little good news.

The first decision actually
happened last year. The Braska case states that a medical cannabis patient
cannot be denied unemployment benefits by the state for simply failing a drug
test for cannabis. The Michigan Unemployment Security Act prohibits
unemployment benefits for a person who possesses, uses, or is under the
influence of illegal drugs at work, who refuses a drug test or who fails a drug
test. However a “drug test” is defined as a test to detect the illegal use of a
controlled substance, and the court has found that a registered medical cannabis
patient is not using cannabis illegally. Although the courts haven’t hung their
hats on the actual test, it is also important to note that urine testing does
not detect THC, but only the presence of “marihuana” based on the secondary metabolites.
It is well settled law in Michigan that the secondary metabolites of cannabis
are not controlled substances and, therefore, it is usually impossible for the
employer to prove that the person tested positive for a controlled substance
anyway.

MICHIGAN- Although the case has been
submitted to the Michigan Supreme Court, the court will likely not hear it, as
the language of the statute is unambiguous. Nevertheless, employers continue to
fight these claims and the MESC incredulously continues to deny them. Remember,
Braska does not prevent employers from firing you for cannabis use, nor does it
give you the right to possess or use cannabis at work, but if you are denied
unemployment benefits for failing a cannabis drug test, and you were a
registered patient at the time of the test, consult a reputable attorney to
determine your appeal rights.

The Randall case is more
likely to be heard by the Michigan Supreme Court. This one partially solved the
mystery of what that stuff is after you cut the stalk off of a cannabis plant
but before it’s dried and usable—the stuff narcotics officers like to weigh and
then report in the local paper that they seized over a hundred pounds of cannabis.
Turns out, according to the Randall court, it’s nothing. It’s not a cannabis
plant, or usable cannabis that counts toward your possession limits. It’s not
even plain old cannabis. It’s just “incidental,” a word that had been presumed
widely to mean “miniscule.” However, Randall corrected that presumption,
stating that “incidental” basically just means whatever happens to be left over,
but not necessarily a very small amount.

Even though we will not have
a Supreme Court opinion for at least nine months, do not take Randall to mean
you should not continue to harvest carefully and conservatively. Until we have
ultimate clarity on this “stuff,” I would discourage trusting to the
forbearance of law enforcement on this issue.