A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

A Guide to Understanding the MICHIGAN MEDICAL MARIJUANA ACT

“WE MUST INCREASE AWARENESS TO INCREASE ACCEPTANCE”

MYCOMPASSION.ORG

OUR FOCUS: Medical Cannabis Education

OUR OUTREACH: People, Patients, Caregivers, Healthcare Professionals, Research and Universities, Local and State Government A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

- Table of Contents -

In a recent industry study published by Medical Marijuana Business Daily, “Marijuana Business Fact book 2013,” the State of Michigan was given a FAILING GRADE for stability in the regulatory structure of the Michigan Medical Marihuana Act with future projections of high volatility and low stability. This grade was the same grade given to the state of Montana where they have experienced a complete collapse of their medical cannabis law. Yet the most interesting facet of this study is that Michigan is cited as having the second largest medical cannabis market in the United States. This contrast of facts is very concerning.

It’s ironic that this guide is subtitled “play by the rules,” as many of the characteristics of the conduct of the Michigan government have been similar to gamesmanship. It is the goal of every stakeholder within the protection of the Michigan Medical Marihuana Act to maintain compliance with the Act. At its present state, we are being sent signals by the Michigan government and courts that compliance is a moving target and if you think you are compliant today, you may not be compliant tomorrow.

Many stakeholders have tried hard to self-regulate their activities to their best interpretation of the Act and industry standards practiced in other states only to have all established practices thrown out with the next, new wave of interpretations.

It is the goal of this guide to help you to better understand the regulatory web that is now the framework for the Michigan Medical Marihuana Act. This guide is intended for informational purposes and should not be relied upon as a substitute for professional legal advice.

This guide is the first widely published and distributed guide on the Michigan Medical Marihuana Act. Funding for the production of this guide is from generous donations received through Michigan Compassion, a 501(c)(3) exempt organization. Michigan Compassion’s mission, in part, is to educate the public on the Michigan Medical Marihuana Act. Your support for Michigan Compassion will ensure that we can continue to put out high quality programs like this guide to the general public. Please visit Michigan Compassions website for more information on its mission or to donate to the 2013 program initiatives, at www.mycompassion.org.

James Campbell CPA Co-Founder and Governing Board Secretary Michigan Compassion

FORWARD TABLE OF CONTENTS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

- Table of Contents - Materials Compiled by Brad Forrester ~ 2013

Amended Copy of the Michigan Marihuana Act 6 - 13

Michigan Medical Marihuana Program 2012 Annual Report 14 - 18

Legislation that Affected Medical Cannabis Patients and Caregivers 19 - 22

Maps 23 - 28

Be Active in Your Own Municipality 29 - 32

Michigan Legislators 33 - 36

Summary of Legal Opinions and Court Findings 37 - 47

Understanding the Judicial Process 48 - 49

Being a Responsible Cannabis Consumer 50

FORWARD TABLE OF CONTENTS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Amended Copy of the Michigan Medical Marihuana Act Includes Initiated Law 1 of 2008 including the 2012 Amendments

AN INITIATION of Legislation to allow under state law Section 333.26430 Severabilty. the medical use of marihuana; to provide protections for the medical use of marihuana; to provide for a 333.26421 Short title. system of registry identification cards for qualifying patients and primary caregivers; to impose a fee for 1. Short Title. registry application and renewal; to provide for the Sec. 1. This act shall be known and may be cited as the promulgation of rules; to provide for the administration Michigan Medical Marihuana Act. of this act; to provide for enforcement of this act; to provide for affirmative defenses; and to provide for 333.26422 Findings, declaration. penalties for violations of this act. 2. Findings. History: 2008, Initiated Law 1, Eff. Dec. 4, 2008 Sec. 2. The people of the State of Michigan find and © 2009 Legislative Council, State of Michigan declare that:

The People of the State of Michigan enact: (a) Modern medical research, including as found by the National Academy of Sciences’ Institute of Medicine Document Description in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, Section 333.26421 Short title. nausea, and other symptoms associated with a variety of debilitating medical conditions. Section 333.26422 Findings, declaration. (b) Data from the Federal Bureau of Investigation Section 333.26423 Definitions Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately Section 333.26424 Qualifying patient or primary 99 out of every 100 marihuana arrests in the United caregiver; arrest, prosecution, or penalty prohibited; States are made under state law, rather than under conditions; presumption; compensation; physician federal law. Consequently, changing state law will subject to arrest, prosecution, or penalty prohibited; have the practical effect of protecting from arrest the marihuana paraphernalia; person in presence or vicinity vast majority of seriously ill people who have a medical to medical use of marihuana; registry identification need to use marihuana. issued outside of department; sale of marihuana as felony; penalty. (c) Although federal law currently prohibits any use of marihuana except under very limited circumstances, Section 333.26425 Rules. states are not required to enforce federal law or prosecute people for engaging in activities prohibited Section 333.26426 Administration and enforcement of by federal law. The laws of Alaska, California, Colorado, rules by department. Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington Section 333.26427 Scope of act; limitations. do not penalize the medical use and cultivation of marihuana. Michigan joins in this effort for the health Section 333.26428 Defenses. and welfare of its citizens.

Section 333.26429 Failure of department to adopt rules or issue valid registry identification card.

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3. Definitions. (3) Any other medical condition or its treatment approved by the department, as provided for in section Sec. 3. As used in this act: 6(k).

(a) “Bona fide physician-patient relationship” means (c) “Department” means the department of licensing a treatment or counseling relationship between a and regulatory affairs. physician and patient in which all of the following are present: (d) “Enclosed, locked facility” means a closet, room, or other comparable, stationary, and fully enclosed (1) The physician has reviewed the patient’s relevant area equipped with secured locks or other functioning medical records and completed a full assessment security devices that permit access only by a registered of the patient’s medical history and current medical primary caregiver or registered qualifying patient. condition, including a relevant, in-person, medical Marihuana plants grown outdoors are considered to be evaluation of the patient. in an enclosed, locked facility if they are not visible to the unaided eye from an adjacent property when viewed (2) The physician has created and maintained records by an individual at ground level or from a permanent of the patient’s condition in accord with medically structure and are grown within a stationary structure accepted standards. that is enclosed on all sides, except for the base, by chain-link fencing, wooden slats, or a similar material (3) The physician has a reasonable expectation that that prevents access by the general public and that is he or she will provide follow-up care to the patient to anchored, attached, or affixed to the ground; located monitor the efficacy of the use of medical marihuana on land that is owned, leased, or rented by either the as a treatment of the patient’s debilitating medical registered qualifying patient or a person designated condition. through the departmental registration process as the primary caregiver for the registered qualifying patient (4) If the patient has given permission, the physician or patients for whom the marihuana plants are grown; has notified the patient’s primary care physician of the and equipped with functioning locks or other security patient’s debilitating medical condition and certification devices that restrict access to only the registered for the use of medical marihuana to treat that condition. qualifying patient or the registered primary caregiver who owns, leases, or rents the property on which the (b) “Debilitating medical condition” means 1 or more of structure is located. Enclosed, locked facility includes the following: a motor vehicle if both of the following conditions are met: (1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency (1) The vehicle is being used temporarily to transport syndrome, hepatitis C, amyotrophic lateral sclerosis, living marihuana plants from 1 location to another with Crohn’s disease, agitation of Alzheimer’s disease, nail the intent to permanently retain those plants at the patella, or the treatment of these conditions. second location.

(2) A chronic or debilitating disease or medical (2) An individual is not inside the vehicle unless he or condition or its treatment that produces 1 or more of she is either the registered qualifying patient to whom the following: cachexia or wasting syndrome; severe the living marihuana plants belong or the individual and chronic pain; severe nausea; seizures, including designated through the departmental registration but not limited to those characteristic of epilepsy; or process as the primary caregiver for the registered severe and persistent muscle spasms, including but qualifying patient. not limited to those characteristic of multiple sclerosis. (e) “Marihuana” means that term as defined in section 7106 of the public health code, 1978 PA 368, MCL 333.7106.

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(f) “Medical use” means the acquisition, possession, the patient’s medical history and current medical cultivation, manufacture, use, internal possession, condition, including a relevant, in-person, medical delivery, transfer, or transportation of marihuana evaluation. or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying (3) In the physician’s professional opinion, the patient patient’s debilitating medical condition or symptoms is likely to receive therapeutic or palliative benefit from associated with the debilitating medical condition. the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms (g) “Physician” means an individual licensed as a associated with the debilitating medical condition. physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an 333.26424 Qualifying patient or primary caregiver; osteopathic physician under Part 175 of the public arrest, prosecution, or penalty prohibited; health code, 1978 PA 368, MCL 333.17501 to conditions; presumption; compensation; 333.17556. physician subject to arrest, prosecution, or penalty prohibited; marihuana paraphernalia; (h) “Primary caregiver” or “caregiver” means a person person in presence or vicinity to medical use of who is at least 21 years old and who has agreed to marihuana; registry identification issued outside of assist with a patient’s medical use of marihuana and department; sale of marihuana as felony; penalty. who has not been convicted of any felony within the past 10 years and has never been convicted of a felony 4. Protections for the Medical Use of Marihuana. involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code Sec. 4. (a) A qualifying patient who has been issued of criminal procedure, 1927 PA 175, MCL 770.9a. and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, (i) “Qualifying patient” or “patient” means a person or denied any right or privilege, including but not limited who has been diagnosed by a physician as having a to civil penalty or disciplinary action by a business or debilitating medical condition. occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with (j) “Registry identification card” means a document this act, provided that the qualifying patient possesses issued by the department that identifies a person as an amount of marihuana that does not exceed 2.5 a registered qualifying patient or registered primary ounces of usable marihuana, and, if the qualifying caregiver. patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for (k) “Usable marihuana” means the dried leaves and the qualifying patient, 12 marihuana plants kept in flowers of the marihuana plant, and any mixture or an enclosed, locked facility. Any incidental amount of preparation thereof, but does not include the seeds, seeds, stalks, and unusable roots shall also be allowed stalks, and roots of the plant. under state law and shall not be included in this amount. The privilege from arrest under this subsection (l) “Visiting qualifying patient” means a patient who is applies only if the qualifying patient presents both his not a resident of this state or who has been a resident or her registry identification card and a valid driver of this state for less than 30 days. license or government- issued identification card that bears a photographic image of the qualifying patient. (m) “Written certification” means a document signed by a physician, stating all of the following: (b) A primary caregiver who has been issued and possesses a registry identification card shall not (1) The patient’s debilitating medical condition. be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including (2) The physician has completed a full assessment of

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but not limited to civil penalty or disciplinary action by (e) A registered primary caregiver may receive a business or occupational or professional licensing compensation for costs associated with assisting a board or bureau, for assisting a qualifying patient to registered qualifying patient in the medical use of whom he or she is connected through the department’s marihuana. Any such compensation shall not constitute registration process with the medical use of marihuana the sale of controlled substances. in accordance with this act. The privilege from arrest under this subsection applies only if the primary (f) A physician shall not be subject to arrest, caregiver presents both his or her registry identification prosecution, or penalty in any manner, or denied card and a valid driver license or government-issued any right or privilege, including but not limited to civil identification card that bears a photographic image penalty or disciplinary action by the Michigan board of of the primary caregiver. This subsection applies medicine, the Michigan board of osteopathic medicine only if the primary caregiver possesses an amount of and surgery, or any other business or occupational marihuana that does not exceed: or professional licensing board or bureau, solely for providing written certifications, in the course of a (1) 2.5 ounces of usable marihuana for each qualifying bona fide physician-patient relationship and after the patient to whom he or she is connected through the physician has completed a full assessment of the department’s registration process; and qualifying patient’s medical history, or for otherwise stating that, in the physician’s professional opinion, (2) for each registered qualifying patient who has a patient is likely to receive therapeutic or palliative specified that the primary caregiver will be allowed benefit from the medical use of marihuana to treat or under state law to cultivate marihuana for the qualifying alleviate the patient’s serious or debilitating medical patient, 12 marihuana plants kept in an enclosed, condition or symptoms associated with the serious or locked facility; and debilitating medical condition, provided that nothing shall prevent a professional licensing board from (3) any incidental amount of seeds, stalks, and sanctioning a physician for failing to properly evaluate unusable roots. a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions. (c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, (g) A person shall not be subject to arrest, prosecution, unless the person’s behavior is such that it creates an or penalty in any manner, or denied any right or unreasonable danger to the minor that can be clearly privilege, including but not limited to civil penalty or articulated and substantiated. disciplinary by the public to include additional medical conditions and treatments. In considering such (d) There shall be a presumption that a qualifying petitions, the department shall include public notice patient or primary caregiver is engaged in the medical of, and an opportunity to comment in a public hearing use of marihuana in accordance with this act if the upon, such petitions. The department shall, after qualifying patient or primary caregiver: hearing, approve or deny such petitions within 180 days of the submission of the petition. The approval (1) is in possession of a registry identification card; and or denial of such a petition shall be considered a final department action, subject to judicial review pursuant (2) is in possession of an amount of marihuana that to the administrative procedures act of 1969, 1969 PA does not exceed the amount allowed under this act. 306, MCL 24.201 to 24.328. Jurisdiction and venue The presumption may be rebutted by evidence that for judicial review are vested in the circuit court for the conduct related to marihuana was not for the purpose county of Ingham. of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the (b) Not later than 120 days after the effective date debilitating medical condition, in accordance with this of this act, the department shall promulgate rules act. pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, that govern the

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manner in which it shall consider applications for and (7) If the qualifying patient designates a primary renewals of registry identification cards for qualifying caregiver, a designation as to whether the qualifying patients and primary caregivers. The department’s patient or primary caregiver will be allowed under state rules shall establish application and renewal fees that law to possess marihuana plants for the qualifying generate revenues sufficient to offset all expenses patient’s medical use. of implementing and administering this act. The department may establish a sliding scale of application (b) The department shall not issue a registry and renewal fees based upon a qualifying patient’s identification card to a qualifying patient who is under family income. The department may accept gifts, the age of 18 unless: grants, and other donations from private sources in order to reduce the application and renewal fees. (1) The qualifying patient’s physician has explained the potential risks and benefits of the medical use of 333.26426 Administration and enforcement of marihuana to the qualifying patient and to his or her rules by department. parent or legal guardian;

6. Administering the Department’s Rules. (2) The qualifying patient’s parent or legal guardian submits a written certification from 2 physicians; and Sec. 6. (a) The department shall issue registry identification cards to qualifying patients who submit (3) The qualifying patient’s parent or legal guardian the following, in accordance with the department’s consents in writing to: rules: (A) Allow the qualifying patient’s medical use of (1) A written certification; marihuana;

(2) Application or renewal fee; (B) Serve as the qualifying patient’s primary caregiver; and (3) Name, address, and date of birth of the qualifying patient, except that if the applicant is homeless, no (C) Control the acquisition of the marihuana, the address is required; dosage, and the frequency of the medical use of marihuana by the qualifying patient. (4) Name, address, and telephone number of the qualifying patient’s physician; (c) The department shall verify the information contained in an application or renewal submitted (5) Name, address, and date of birth of the qualifying pursuant to this section, and shall approve or deny patient’s primary caregiver, if any; an application or renewal within 15 business days of receiving it. The department may deny an application (6) Proof of Michigan residency. For the purposes or renewal only if the applicant did not provide the of this subdivision, a person shall be considered to information required pursuant to this section, or if the have proved legal residency in this state if any of the department determines that the information provided following apply: was falsified. Rejection of an application or renewal is considered a final department action, subject to judicial (i) The person provides a copy of a valid, lawfully review. Jurisdiction and venue for judicial review are obtained Michigan driver license issued under the vested in the circuit court for the county of Ingham. Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or an official state personal identification card (d) The department shall issue a registry identification issued under 1972 PA 222, MCL 28.291 to 28.300. card to the primary caregiver, if any, who is named in a qualifying patient’s approved application; provided (ii) The person provides a copy of a valid Michigan that each qualifying patient can have no more than 1 voter registration.

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primary caregiver, and a primary caregiver may assist and supporting information submitted by qualifying no more than 5 qualifying patients with their medical patients, including information regarding their primary use of marihuana. caregivers and physicians, are confidential.

(e) The department shall issue registry identification (2) The department shall maintain a confidential list cards within 5 business days of approving an of the persons to whom the department has issued application or renewal, which shall expire 2 years after registry identification cards. Except as provided in the date of issuance. Registry identification cards shall subdivisions (3) and (4), individual names and other contain all of the following: identifying information on the list are confidential and are exempt from disclosure under the freedom of (1) Name, address, and date of birth of the qualifying information act, 1976 PA 442, MCL 15.231 to 15.246. patient. (3) The department shall verify to law enforcement (2) Name, address, and date of birth of the primary personnel whether a registry identification card is valid, caregiver, if any, of the qualifying patient. without disclosing more information than is reasonably necessary to verify the authenticity of the registry (3) The date of issuance and expiration date of the identification card. registry identification card. (4) A person, including an employee, contractor, or (4) A random identification number. official of the department or another state agency or local unit of government, who discloses confidential (5) A photograph, if the department requires one by information in violation of this act is guilty of a rule. misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than (6) A clear designation showing whether the primary $1,000.00, or both. Notwithstanding this provision, caregiver or the qualifying patient will be allowed department employees may notify law enforcement under state law to possess the marihuana plants for about falsified or fraudulent information submitted to the qualifying patient’s medical use, which shall be the department. determined based solely on the qualifying patient’s preference. (i) The department shall submit to the legislature an annual report that does not disclose any identifying (f) If a registered qualifying patient’s certifying physician information about qualifying patients, primary notifies the department in writing that the patient has caregivers, or physicians, but does contain, at a ceased to suffer from a debilitating medical condition, minimum, all of the following information: the card shall become null and void upon notification by the department to the patient. (1) The number of applications filed for registry identification cards. (g) Possession of, or application for, a registry identification card shall not constitute probable cause (2) The number of qualifying patients and primary or reasonable suspicion, nor shall it be used to support caregivers approved in each county. the search of the person or property of the person possessing or applying for the registry identification (3) The nature of the debilitating medical conditions of card, or otherwise subject the person or property of the qualifying patients. the person to inspection by any local, county or state governmental agency. (4) The number of registry identification cards revoked.

(h) The following confidentiality rules shall apply: (5) The number of physicians providing written certifications for qualifying patients. (1) Subject to subdivisions (3) and (4), applications

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(j) The department may enter into a contract with MCL 333.26427 Scope of act; limitations. a private contractor to assist the department in performing its duties under this section. The 7. Scope of Act. contract may provide for assistance in processing and issuing registry identification cards, but the Sec. 7. (a) The medical use of marihuana is allowed department shall retain the authority to make the final under state law to the extent that it is carried out in determination as to issuing the registry identification accordance with the provisions of this act. card. Any contract shall include a provision requiring the contractor to preserve the confidentiality of (b) This act shall not permit any person to do any of information in conformity with subsection (h). the following:

(k) Not later than 6 months after the effective date of (1) Undertake any task under the influence of the amendatory act that added this subsection, the marihuana, when doing so would constitute negligence department shall appoint a panel to review petitions or professional malpractice. to approve medical conditions or treatments for addition to the list of debilitating medical conditions (2) Possess marihuana, or otherwise engage in the under the administrative rules. The panel shall meet medical use of marihuana: at least twice each year and shall review and make a recommendation to the department concerning (A) in a school bus; any petitions that have been submitted that are completed and include any documentation required by (B) on the grounds of any preschool or primary or administrative rule. secondary school; or

(1) A majority of the panel members shall be (C) in any correctional facility. licensed physicians, and the panel shall provide recommendations to the department regarding whether (3) Smoke marihuana: the petitions should be approved or denied. (A) on any form of public transportation; or (2) All meetings of the panel are subject to the open meetings act, 1976 PA 267, MCL 15.261 to 15.275. (B) in any public place.

(l) The Michigan medical marihuana fund is created (4) Operate, navigate, or be in actual physical control within the state treasury. All fees collected under this of any motor vehicle, aircraft, or motorboat while under act shall be deposited into the fund. The state treasurer the influence of marihuana. may receive money or other assets from any source for deposit into the fund. The state treasurer shall (5) Use marihuana if that person does not have a direct the investment of the fund. The state treasurer serious or debilitating medical condition. shall credit to the fund interest and earnings from fund investments. Money in the fund at the close of the (c) Nothing in this act shall be construed to require: fiscal year shall remain in the fund and shall not lapse to the general fund. The department of licensing and (1) A government medical assistance program or regulatory affairs shall be the administrator of the fund commercial or non-profit health insurer to reimburse for auditing purposes. The department of licensing and a person for costs associated with the medical use of regulatory affairs shall expend money from the fund, marihuana. upon appropriation, for the operation and oversight of the Michigan medical marihuana program. (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.

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(d) Fraudulent representation to a law enforcement hearing where the person shows the elements listed in official of any fact or circumstance relating tothe subsection (a). medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be (c) If a patient or a patient’s primary caregiver in addition to any other penalties that may apply for demonstrates the patient’s medical purpose for using making a false statement or for the use of marihuana marihuana pursuant to this section, the patient and the other than use undertaken pursuant to this act. patient’s primary caregiver shall not be subject to the (e) All other acts and parts of acts inconsistent with this following for the patient’s medical use of marihuana: act do not apply to the medical use of marihuana as provided for by this act. (1) disciplinary action by a business or occupational or professional licensing board or bureau; or 333.26428 Defenses. (2) forfeiture of any interest in or right to property.

8. Affirmative Defense and Dismissal for Medical 333.26429 Failure of department to adopt rules or Marihuana. issue valid registry identification card. Sec. 8. (a) Except as provided in section 7(b), a patient and a patient’s primary caregiver, if any, may assert the 9. Enforcement of this Act. medical purpose for using marihuana as a defense to Sec. 9. (a) If the department fails to adopt rules to any prosecution involving marihuana, and this defense implement this act within 120 days of the effective shall be presumed valid where the evidence shows date of this act, a qualifying patient may commence that: an action in the circuit court for the county of Ingham (1) A physician has stated that, in the physician’s to compel the department to perform the actions professional opinion, after having completed a full mandated pursuant to the provisions of this act. assessment of the patient’s medical history and (b) If the department fails to issue a valid registry current medical condition made in the course of a identification card in response to a valid application bona fide physician-patient relationship, the patient is or renewal submitted pursuant to this act within 20 likely to receive therapeutic or palliative benefit from days of its submission, the registry identification card the medical use of marihuana to treat or alleviate shall be deemed granted, and a copy of the registry the patient’s serious or debilitating medical condition identification application or renewal shall be deemed a or symptoms of the patient’s serious or debilitating valid registry identification card. medical condition; (2) The patient and the patient’s primary caregiver, 333.26430 Severabilty. if any, were collectively in possession of a quantity of marihuana that was not more than was 10. Severability. reasonably necessary to ensure the uninterrupted Sec. 10. Any section of this act being held invalid availability of marihuana for the purpose of treating as to any person or circumstances shall not affect or alleviating the patient’s serious or debilitating the application of any other section of this act that medical condition or symptoms of the patient’s can be given full effect without the invalid section or serious or debilitating medical condition; and application. (3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, Neither the publisher nor the sponsors of this cultivation, manufacture, use, delivery, transfer, guide are responsible for typographical errors or or transportation of marihuana or paraphernalia misprints. All errors are unintentional and are not relating to the use of marihuana to treat or alleviate meant to mislead any reader. the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating None of the text in this Year End Review Guide is medical condition. intended as legal advice, rather a compilation of (b) A person may assert the medical purpose for using general information for educational purposes. marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary

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Michigan Medical Marihuana Program 2012 Annual Report

Per the Michigan Medicai Marihuana Act, initiated Law 1 of 2008, Section 60) requires the following statistical data be reported to the Legislature in an annual report. The statistical data for this program for Fisce! Year 2012 which is October 1, 2011 through September 30, 2012 is:

The Number of Applications Filed for Registry Identification Cards 1. (Applications Received)

F/Y 2012 F/Y 2012 F/Y 2012 F/Y 2012 F/Y 2012 F/Y 2012 Total Original Original Renewal Total Denials Originals Renewal and Renewal Applications Applications Denials Denials Applications Received Received (03/12 - (03/12 - Received (03/12 - 09/12) (03/12 - 09/12) 09/12) 09/12) 122,463 36,575 43,272 6,687 1,964 2,434

The Number of Qualifying Patients and Primary Caregivers 2. Approved in Each County

County Patients Patients Under 18 Caregivers

Alcona 229 81 Alger 169 44 Allegan 1,573 673 Alpena 382 120 Antrim 528 243

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Continued . . . The Number of Qualifying Patients and Primary Caregivers Approved in Each County

County Patients Patients Under Caregivers 18 Arenac 377 141 Baraga 87 29 Barry 905 415 Bay 1,419 2 558 Benzie 389 204 Berrien 2,371 1 1,091 Branch 663 268 Calhoun 2,268 1 945 Cass 627 1 204 Charlevoix 510 210 Cheboygan 414 191 Chippewa 480 139 Clare 798 306 Clinton 799 423 Crawford 254 70 Delta 685 299 Dickinson 377 161 Eaton 1,889 858 Emmet 530 191 Genesee 8,231 4 3,336 Gladwin 461 170 Gogebic 236 78 Grand Traverse 1,696 736 Gratiot 625 258 Hillsdale 784 304 Houghton 412 182 Huron 196 37 Ingham 4,893 2 2,276 Ionia 951 375 Iosco 414 151 Iron 208 79

MICHIGAN MEDICAL MARIHUANA PROGRAM 2012 ANNUAL REPORT 15 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Continued . . . The Number of Qualifying Patients and Primary Caregivers Approved in Each County

County Patients Patients Under Caregivers 18 Isabella 899 383 Jackson 3,729 1,454 Kalamazoo 3,063 1,150 Kalkaska 501 192 Kent 6,002 1 2,246 Keweenaw 40 19 Lake 290 106 Lapeer 1,494 646 Leelanau 279 166 Lenawee 2,275 1 905 Livingston 1,867 2 804 Luce 102 32 Mackinac 236 103 Macomb 8,319 2 3,542 Manistee 409 120 Marquette 1,002 419 Mason 469 138 Mecosta 590 198 Menominee 261 123 Midland 793 1 263 Missaukee 230 121 Monroe 2,118 2 806 Montcalm 1,316 765 Montmorency 280 106 Muskegon 2,615 1 1,016 Newaygo 767 1 318 Oakland 11,117 12 4,425 Oceana 540 174 Ogemaw 310 96 Ontonagon 149 67 Osceola 524 185

16 MICHIGAN MEDICAL MARIHUANA PROGRAM 2012 ANNUAL REPORT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Continued . . . The Number of Qualifying Patients and Primary Caregivers Approved in Each County

County Patients Patients Under Caregivers 18 Oscoda 151 76 Otsego 518 246 Ottawa 2,498 2 959 Presque Isle 189 66 Roscommon 587 240 Saginaw 1,951 691 Saint Clair 2,293 909 Saint Joseph 783 257 Sanilac 753 1 311 Schoolcraft 182 91 Shiawassee 1,433 659 Tuscola 976 412 Van Buren 1,524 692 Washtenaw 4,458 1 1,805 Wayne 14,736 7 5,515 Wexford 683 325

Totals 124,131 44 50,188

MICHIGAN MEDICAL MARIHUANA PROGRAM 2012 ANNUAL REPORT 17 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

The Nature of the Debilitating Medical Conditions of the 3. Qualifying Patients

Number of Patients

Original Renewals Debilitating (10/1/11 - (10/1/11 - Condition 9/30/12) 9/30/12) The Number of Registry Identification AIDS 119 151 4. Cards Revoked Alzheimers 18 17 Rule 25 of the General Rules states: Lateral 11 14 Sclerosis “A registered qualifying patient or Cachexia 274 337 registered primary caregiver who has been convicted of selling marihuana Cancer 1,160 1,366 to someone who is not ailowed to use Chron’s Disease 299 579 marihuana for medical purposes under the act, shall have his or her registry Glaucoma 391 721 identification card revoked...” Hepatits C 548 1,069 HIV 128 158 0 registry cards were revoked in FY 2012 Nail Patela 25 13 Seizures - 612 802 Epilepsy Severe and 34,218 45,095 Chronic Pain

Severe and 8,697 13,553 The Number of Physicians Providing Persistent 5. Written Certifications for Qualifying Muscle Spasms Patients. Severe Nausea 4,064 5,020 Wasting 320 342 There were 1,928 physicians who Syndrome issued certifications for patients in FY12.

• 125,000 “registered patients” - Add 40,000 unregistered patients who qualify but can’t or won’t apply

• 50,000 “registered caregivers” - Add 15,000 unregistered caregivers who may or may not qualify, and

who are not registered in the medical marihuana program

• Patients and caregivers in every single county (100+ patients in all but two counties)

• Nearly 2,000 participating physicians out of 40,000+ Michigan physicians

• NONE of the over 170,000 medical marijuana program registry identification cards was revoked in 2012

18 MICHIGAN MEDICAL MARIHUANA PROGRAM 2012 ANNUAL REPORT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Legislation that Affected Medical Cannabis Patients and Caregivers

HB 4834 amends Section 6 of the MMMAct (MCL 333.26426) Date of effect April 1, 2013

1. There is now a requirement that patients and caregivers be Michigan residents.

PROOF OF MICHIGAN RESIDENCY

For the purposes of this subdivision, a person shall be considered to have proved legal residency in this state if any of the following apply:

(i) The person provides a copy of a valid, lawfully obtained Michigan Driver License issued under the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 to 257.923, or an official State Personal Identification Card issued under 1972 PA 222, MCL 28.291 to 28.300.

(ii) The person provides a copy of a valid Michigan voter registration.

2. The MMMAct states the department shall verify an application within 15 days from the day it is received by the department. This was changed to 15 BUSINESS days (M-F), weekends no longer count toward the 15 day verification process.

3. The MMMAct states the department has 5 days to mail out card to qualifying patients and caregivers. This was changed to 5 BUSINESS days (M-F), weekends no longer count toward the 5 days the department has to mail out your card.

4. The MMMAct states that MMP Registry I.D. cards are good for one year. This was extended to two (2) years.

5. The legislature added the word CONTRACTOR to the list of people who are authorized to access confidential patient and caregiver information from the MMP Registry. This was done to allow the Department to subcontract the administrative duties of the program out to a third party vendor.

6. The following provisions were also added to Section 6:

(i) A provision to allow a third party vendor to manage the administrative duties of the program

(ii) A provision that mandates the assembly of a panel to review new conditions

(iii) A provision to establish a Medical Marihuana Trust Fund where all monies paid in application fees would remain within the program and not be transferred into the General Fund at the beginning of a new fiscal year.

LEGISLATION THAT AFFECTED PATIENTS AND CAREGIVERS 19 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

HB 4851 amends Sections 3, 4, and 8 (MCL 333.26423, 333.26424, and 333.26428) Date of effect April 1, 2013

Section 3 amendments:

1. Adds a new definition for Bona Fide Physician-Patient Relationship

Bona Fide Physician-Patient Relationship means a treatment or counseling relationship between a physician and patient in which all the following are present:

(i) The physician has reviewed the patient’s medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.

(ii) The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.

(iii) The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marihuana as a treatment of the patient’s debilitating medical condition.

(iv) If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the use of medical marihuana to treat that condition.

2. The “Department” now means the Department of Licensing and Regulatory Affairs

3. An “Enclosed, locked facility” now means and includes:

“Enclosed, locked facility” means a closet, room, or other COMPARABLE, STATIONARY, AND FULLY enclosed area equipped with SECURED locks or other FUNCTIONING security devices that permit access only by a registered primary caregiver or registered qualifying patient. MARIHUANA PLANTS GROWN OUTDOORS ARE CONSIDERED TO BE IN AN ENCLOSED, LOCKED FACILITY IF THEY ARE NOT VISIBLE TO THE UNAIDED EYE FROM AN ADJACENT PROPERTY WHEN VIEWED BY AN INDIVIDUAL AT GROUND LEVEL OR FROM A PERMANENT STRUCTURE AND ARE GROWN WITHIN A STATIONARY STRUCTURE THAT IS ENCLOSED ON ALL SIDES, EXCEPT FOR THE BASE, BY CHAIN-LINK FENCING, WOODEN SLATS, OR A SIMILAR MATERIAL THAT PREVENTS ACCESS BY THE GENERAL PUBLIC AND THAT IS ANCHORED, ATTACHED, OR AFFIXED TO THE GROUND; LOCATED ON LAND THAT IS OWNED, LEASED, OR RENTED BY EITHER THE REGISTERED QUALIFYING PATIENT OR A PERSON DESIGNATED THROUGH THE DEPARTMENTAL REGISTRATION PROCESS AS THE PRIMARY CAREGIVER FOR THE REGISTERED QUALIFYING PATIENT OR PATIENTS FOR WHOM THE MARIHUANA PLANTS ARE GROWN; AND EQUIPPED WITH FUNCTIONING LOCKS OR OTHER SECURITY DEVICES THAT RESTRICT ACCESS TO ONLY THE REGISTERED QUALIFYING PATIENT OR THE REGISTERED PRIMARY CAREGIVER WHO OWNS, LEASES, OR RENTS THE PROPERTY ON WHICH THE STRUCTURE IS LOCATED. ENCLOSED, LOCKED FACILITY INCLUDES A MOTOR VEHICLE IF BOTH OF THE FOLLOWING CONDITIONS ARE MET:

(i) THE VEHICLE IS BEING USED TEMPORARILY TO TRANSPORT LIVING MARIHUANA PLANTS FROM 1 LOCATION TO ANOTHER WITH THE INTENT TO PERMANENTLY RETAIN THOSE PLANTS AT THE SECOND LOCATION.

20 LEGISLATION THAT AFFECTED PATIENTS AND CAREGIVERS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Continued... HB 4851 amends Sections 3, 4, and 8 (MCL 333.26423, 333.26424, and 333.26428) Date of effect April 1, 2013

(ii) AN INDIVIDUAL IS NOT INSIDE THE VEHICLE UNLESS HE OR SHE IS EITHER THE REGISTERED QUALIFYING PATIENT TO WHOM THE LIVING MARIHUANA PLANTS BELONG OR THE INDIVIDUAL DESIGNATED THROUGH THE DEPARTMENTAL REGISTRATION PROCESS AS THE PRIMARY CAREGIVER FOR THE REGISTERED QUALIFYING PATIENT.

4. A “Primary caregiver” OR “CAREGIVER” means a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has NOT BEEN CONVICTED OF ANY FELONY WITHIN THE PAST 10 YEARS AND HAS NEVER BEEN CONVICTED OF A FELONY INVOLVING ILLEGAL DRUGS OR A FELONY THAT IS AN ASSAULTIVE CRIME AS DEFINED IN SECTION 9A OF CHAPTER X OF THE CODE OF CRIMINAL PROCEDURE, 1927 PA 175, MCL 770.9A.

5. “Qualifying patient” OR “PATIENT” means a person who has been diagnosed by a physician as having a debilitating medical condition.

6. “Written certification” means a document signed by a physician, stating ALL OF THE FOLLOWING:

(i) THE patient’s debilitating medical condition

(ii) THE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT OF THE PATIENT’S MEDICAL HISTORY AND CURRENT MEDICAL CONDITION, INCLUDING A RELEVANT, IN-PERSON, MEDICAL EVALUATION

(iii) IN the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

Section 4 amendments:

1. The following language was added at the end of Section 4(a): THE PRIVILEGE FROM ARREST UNDER THIS SUBSECTION APPLIES ONLY IF THE QUALIFYING PATIENT PRESENTS BOTH HIS OR HER REGISTRY IDENTIFICATION CARD AND A VALID DRIVER LICENSE OR GOVERNMENT-ISSUED IDENTIFICATION CARD THAT BEARS A PHOTOGRAPHIC IMAGE OF THE QUALIFYING PATIENT.

2. The following language was added to Section 4(b): THE PRIVILEGE FROM ARREST UNDER THIS SUBSECTION APPLIES ONLY IF THE PRIMARY CAREGIVER PRESENTS BOTH HIS OR HER REGISTRY IDENTIFICATION CARD AND A VALID DRIVER LICENSE OR GOVERNMENT-ISSUED IDENTIFICATION CARD THAT BEARS A PHOTOGRAPHIC IMAGE OF THE PRIMARY CAREGIVER. THIS SUBSECTION APPLIES ONLY IF the primary caregiver possesses an amount of marihuana that does not exceed......

Section 8 amendment:

1. The only change made to Section 8 is in the very first sentence: Except as provided in section 7(B), a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana...

LEGISLATION THAT AFFECTED PATIENTS AND CAREGIVERS 21 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

HB 4853 is a bill to amend 1927 PA 175, MCL 777.13(n) Date of effect April 1, 2013 This bill is NOT an amendment to the Michigan Medical Marihuana Act. It is stand alone legislation that adds the penalties enumerated in MCL 333.26424(k) to the Public Health Code. It appears to have no direct impact on patients or caregivers who comply with the law.

HB 4856 is a bill to amend 1931 PA 328, MCL 750.1 to 750.568, by adding Section 474 Date of effect IMMEDIATE This bill is NOT an amendment to the Michigan Medical Marihuana Act. It is stand alone legislation that adds restrictions to “land travel” with medical marijuana. This bill takes effect immediately and patients and caregivers should comply with it as completely as possible. Advocates contend this law conflicts with the immunity provisions set forth in MCL 333.26424, and this will ultimately be decided by the Michigan Supreme Court. Please try to avoid being the test case!

SECTION 474. 1. A PERSON SHALL NOT TRANSPORT OR POSSESS USABLE MARIHUANA AS DEFINED IN SECTION 26423 OF THE PUBLIC HEALTH CODE, 1978 PA 368, MCL 333.26423, IN OR UPON A MOTOR VEHICLE OR ANY SELF PROPELLED VEHICLE DESIGNED FOR LAND TRAVEL UNLESS THE USABLE MARIHUANA IS 1 OR MORE OF THE FOLLOWING: (i) ENCLOSED IN A CASE THAT IS CARRIED IN THE TRUNK OF THE VEHICLE (ii) ENCLOSED IN A CASE THAT IS NOT READILY ACCESSIBLE FROM THE INTERIOR OF THE VEHICLE, IF THE VEHICLE IN WHICH THE PERSON IS TRAVELING DOES NOT HAVE A TRUNK.

2. A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 93 DAYS OR A FINE OF NOT MORE THAN $500.00, OR BOTH.

SB 321 is a bill to amend 1956 PA 218, MCL 500.3107 Date of effect IMMEDIATE This bill is NOT an amendment to the Michigan Medical Marihuana Act. It is stand alone legislation that permits insurance companies to disallow medical marijuana expenses as part of their general business policies. This bill takes effect immediately. The following new language was added as 2(b) to MCL 500.3107:

An insurer shall not be required to provide coverage for the medical use of marihuana or for expenses related to the medical use of marihuana.

SB 933 is a bill to amend 1969 PA 317, MCL 418.101 to 418.941, by adding Section 315(a) Date of effect IMMEDIATE This bill is NOT an amendment to the Michigan Medical Marihuana Act. It is stand alone legislation that exempts employers reimbursing an employee for medical marijuana treatment expenses. This bill takes effect immediately. The following new language was added to Chapter 3 of Act 317 of 1969 as 315(a):

Notwithstanding the requirements in section 315, an employer is not required to reimburse or cause to be reimbursed charges for medical marihuana treatment.

22 LEGISLATION THAT AFFECTED PATIENTS AND CAREGIVERS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

U.S. HOUSE DISTRICTS

MAPS 23 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

MI SENATE DISTRICTS

24 MAPS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

S.E. MI SENATE DISTRICTS

MAPS 25 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

MI HOUSE DISTRICTS

26 MAPS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

MID. MI HOUSE DISTRICTS

MAPS 27 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

S.E. MI HOUSE DISTRICTS

28 MAPS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Be Active in Your Own Municipality

As a citizen, you can help insure good legislation on state and national levels by communicating with your elected representatives at the proper time.

Too many people never have any contact with those who represent them in government — whose vote may decide what price they will pay for the acts of government, sometimes in terms of dollars, or in changes in standards of living, or in regulatory inconveniences.

Personal contacts can be a meaningful way to influence a legislator.

Before contacting any legislators, take the time to read all available background material on the bill or issue which concerns you. Although it is obviously beneficial for you to know a great deal about the 1. specifics of bills and issues, it is not essential that you know everything. The primary goal of your visit is to express your concern over a particular bill or issue.

Know when and where to contact a legislator. The best times to find a legislator in the office in Lansing are 2. Tuesday, Wednesday, and Thursday. (House sessions are normally held on Tuesdays and Wednesdays at 1:30 p.m. and Thursdays at 12:00 noon, while Senate sessions normally begin at 10:00 a.m. on Tuesdays, Wednesdays, and Thursdays.)

It is usually possible, when the House and Senate are in session, to send in a message to legislators informing them that you wish to speak with them. Check from the visitors balconies on the third floor to 3. see if the legislator you wish to meet with is in the chamber. The sergeant-at-arms on the second floor in front of each chamber will send your message to the Representative or Senator. It is generally, but not always, possible for a legislator to come out to meet briefly with you.

Occasionally, legislators will be able to see you if you simply walk into their office, but the best approach is to call ahead and make an appointment. Let the legislator know what you wish to discuss. If you cannot get an appointment, or if the matter is too urgent to wait for an appointment, do not hesitate to 4. go to the office anyway. You may at least be able to talk to staff, and you will have made them aware of your concern.

Calling your own legislator at home on the weekend sometimes makes sense on an issue of great 5. importance or urgency. Don’t abuse this method of contact.

If you have genuine expert knowledge, share it with the legislator. It will be welcomed. No legislator can be an expert on everything. (All views are important, but expertise is especially valued. Remember, any 6. lobbyist’s most useful role for a legislator is as a source of information.) If you have read the bill carefully and/or understand the issues involved as a result of personal knowledge or research, you may be of great assistance to the legislator.

Be constructive. If a bill deals with a problem you admit exists, but you believe the bill is the wrong approach, 7. explain what you believe is the right approach. If you want to suggest amendments to a bill that has been

BE ACTIVE IN YOUR OWN MUNICIPALITY 29 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

introduced, it is important that you have: a) a clear idea of what you want to be included or deleted; b) the reasons to justify the proposed change; and c) good, strong facts to back up your position before you contact your legislator. If possible, leave copies of your position and/or suggested changes with the legislator.

It is usually a waste of time (for both of you) to lobby legislators who are already supporting your 8. position, although they may be helpful in making suggestions for your lobbying efforts.

You do not need a crowd to lobby. One, or possibly two, well-informed lobbyists on the same subject are 9. more effective and less confusing than a large group gathered at the same time.

When you introduce yourself, save time by making it clear who you are and what organization, if any, 10. you are working with. If you are cooperating with some group from the legislator’s home district, mention it and the fact that the home district group may also be trying to reach the legislator.

Do not “overkill.” Most legislators have many demands on their time. An elaborate sales job or long, emotional speech will not be appreciated. They do, however, want your well-prepared facts and views, 11. presented in a straightforward manner. Make sure their time is well spent in talking to you. Stick to the issues that you came to discuss; don’t wander into other issues.

It is easy, particularly when dealing with legislators who disagree with you, to become angry and frustrated. If you disagree, a calm, reasonable attitude and a set of well-prepared reasons for your 12. position may change their minds on the issue. It is generally advisable not to get into arguments which may trigger prejudices. Remember, you may not have all the facts on an issue or bill.

Let legislators explain their views—listen without interrupting—they often have input from many 13. resources to which you may not have access, such as fiscal agencies, state departments, other groups with expertise on the issue, and legislation from other states.

Take a few notes about their comments, noting any questions they have. Give the answers you know, 14. and offer to get answers to the other questions, if possible. Understanding their views of the facts and where they come from will help your organization develop counterarguments.

Don’t demand a commitment before the facts are in. Give your legislator a fair chance to examine all sides of an issue. The legislative process is very complex, and bills change their shape in committee and on the floor of both houses of the Legislature. A bill rarely becomes law in the sameformas 15. introduced. It is possible that the bill you supported originally is so changed in the process that you would oppose its final form. A legislator may be forced to vote on the bill as a whole, weighing the good with the bad and the needs of all constituents and/or the state as a whole, rather than those of a particular group or individual.

30 BE ACTIVE IN YOUR OWN MUNICIPALITY A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Letter Writing and E-Mail A personal letter or message via e-mail or the Internet may be the most effective way of contacting your legislator, whether in Lansing or Washington. Many offices prefer e-mail. If you’re new at this type of letter writing, here are some suggestions on how your letters can be most effective:

1. ADDRESS IT PROPERLY: Know your legislator’s full name and correct spelling. Examples:

U.S. SENATOR U.S. REPRESENTATIVE The Honorable (full name) The Honorable (full name) United States Senator United States Representative Address Address Dear Senator (last name): Dear Congressman/woman (last name):

STATE SENATOR STATE REPRESENTATIVE The Honorable (full name) The Honorable (full name) State Senator State Representative State Capitol State Capitol P.O. Box 30036 P.O. Box 30014 Lansing, MI 48909-7536 Lansing, MI 48909-7514 Dear Senator (last name): Dear Representative (last name):

2. ALWAYS INCLUDE YOUR LAST NAME AND ADDRESS ON THE LETTER OR E-MAIL. A letter cannot be answered if there is no return address and this shows you are a constituent.

3. USE YOUR OWN WORDS. Avoid form letters and petitions. They tend to be identified as organized pressure campaigns and are often answered with form replies. However, a petition does let the legislator know that the issue is of concern to a large number of people (addresses with zip codes should be given for each signature). One thoughtful, factual, and well-reasoned letter carries more weight than 100 form letters or printed postcards.

4. TIME THE ARRIVAL OF YOUR LETTER OR E-MAIL. Try to write to your legislator, and the chairperson of the committee dealing with a bill, while a bill is still in committee and there is still time to take effective action. Sometimes a bill is out of committee, or has been passed, before a helpful, informative letter arrives which could have made a difference in the way the bill was written or in the final decision.

5. KNOW WHAT YOU ARE WRITING ABOUT. Identify the bill or issue of concern to you. Thousands of bills and resolutions are introduced in each session. If you write about a bill, try to give the bill number or describe it by popular title, such as “the Whistleblower’s Act,” or “the School Code.”

6. BE REASONABLY BRIEF. Many issues are complex, but a single page, presenting your opinions, facts, arguments, or proposals as clearly as possible, is preferred and welcomed by most legislators.

BE ACTIVE IN YOUR OWN MUNICIPALITY 31 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

7. GIVE REASONS FOR YOUR POSITION. Explain how the issue would affect you, your family, business, or profession—or the effect on your community or our state. If you have specialized knowledge, SHARE IT WITH YOUR LEGISLATOR. Concrete, expert arguments for or against the bill can be used by the legislator in determining the final outcome of a bill.

8. BE CONSTRUCTIVE. If a bill deals with a problem you admit exists, but you believe the bill is the wrong approach, explain what you believe to be the right approach.

9. GROUPS AND INDIVIDUALS SHOULD DETERMINE THEIR PRIORITY CONCERNS and contact the legislator on those specific issues rather than on every issue. The “pen pal” who writes every few days on every conceivable subject tends to become a nuisance, rather than an effective voice of concern.

10. YOU MAY NOT ALWAYS RECEIVE A LONG, DETAILED RESPONSE. Legislators are very busy and usually cannot respond with long, personal replies to each correspondent.

11. WRITE TO EXPRESS APPRECIATION when you feel a legislator has done a good job. Legislators are Michigan U.S. & State Legislators human too and seldom receive “thank you” letters of encouragement.

Remember, on any one issue, even a few letters or e-mails to one legislator can have an important impact. Sometimes just one letter or e-mail, with a new perspective, or with clear-cut, persuasive arguments can be the decisive factor in a legislator’s action.

MYCOMPASSION.ORG

By making a monetary contribution to Michigan Compassion, you make it possible to educate thousands of patients, Caregivers and Healthcare professionals about the benefits of Medical Cannabis. Your donation allows us to continue community outreach programs just like this one! Michigan Compassion is a qualified 501(c)(3) tax-exempt organization and your donations are tax-deductible.

32 BE ACTIVE IN YOUR OWN MUNICIPALITY A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Michigan Legislators

You can become an agent of change and make a positive impact by simply contacting your legislators and telling them how you feel. Contact all your state and federal representatives by phone, email, or snail mail and give them your reasons for opposing cannabis prohibition. When hundreds of people apply pressure this way, legislators sometimes hear the message, and it’s a very effective way for everyone to “do something”!

Michigan U.S. & State Legislators

US Senators

Carl Levin Debbie Stabenow (202) 224-6221 (202) 224-4822 Make the Call Today! US Representatives

D1 - Dan Benishek D5 - Daniel Kildee D9 - Sander Levin D13 - John Conyers Jr. 202-225-4735 202-225-3611 202-225-4961 202-225-5126

D2 - Bill Huizenga D6 - Fred Upton D10- Candice Miller D14 - Gary Peters 202-225-4401 202-225-3761 202-225-2106 202-225-5802

D3 - Justin Amish D7 - Tim Walberg D11 - Kerry Bentivolio 202-225-3831 202-225-6276 202-225-8171

D4 - Dave Camp D8 - Mike Rogers D12 - John Dingall 202-225-3561 202-225-4872 202-225-4071

MICHIGAN LEGISLATORS 33 A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

State Senators

D1 Coleman A. Young II D11 Jack Brandenburg D21 John Proos D31 Mike Green 517-373-7346 517-373-7670 517-373-6960 517-373-1777

D2 Bert Johnson D12 Jim Marleau D22 Joe Hune D32 Roger Kahn 517-373-7748 248-724-2442 517-373-2420 517-373-1760

D3 Morris Hood III D13 John Pappageorge D23 Gretchen Whitmer D33 Judy Emmons 517-373-0990 517-373-2523 517-373-1734 517-373-3760

D4 Virgil Smith D14 Vincent Gregory D24 Rick Jones D34 Goeff Hansen 517-373-7918 517-373-7888 517-373-3447 517-373-1635

D5 Tupac Hunter D15 Mike Kowall D25 Phil Pavlov D35 Darwin Booher 517-373-0994 517-373-1758 517-373-7708 517-373-1725

D6 Glenn Anderson D16 Bruce Caswell D26 David Robertson D36 John Moolenaar 517-373-1707 517-373-5932 517-373-1636 517-373-7946

D7 Patrick Colbeck D17 Randy Richardville D27 John Gleason D37 Howard Walker 517-373-7350 517-373-3543 517-373-XXXX 517-373-2413

D8 Hoon-Yung Hopgood D18 Rebekah Warren D28 Mark Jansen D38 Tom Casperson 517-373-7800 517-373-2406 517-373-0797 517-373-7840

D9 Steve Bieda D19 Mike Nofs D29 Dave Hildenbrand 517-373-8360 517-373-2426 517-373-1801

D10 Tory Rocca D20 Tonya Schuitmaker D30 Arlan Meekhof 517-373-7315 517-373-0793 517-373-6920

MAKE A CALL, MAKE A DIFFERENCE!

34 MICHIGAN LEGISLATORS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

State Representatives

D001 Brian Banks D015 George Darany D029 Tim Greimel D043 Gail Haines (517) 373-0154 (517) 373-0847 (517) 373-0475 (517) 373-0615

D002 Alberta Talabi D016 Robert Ko- D030 Jeff Farrington D044 Eileen Kowall (517) 373-1776 sowski (517) 373-7768 (517) 373-2616 (517) 373-2576 D003 John Olumba D031 Marilyn Lane D045 Tom McMillin (517) 373-0144 D017 Bill LaVoy (517) 373-0159 (517) 373-1773 (517) 373-1530 D004 Rose Mary Rob- D032 Andrea LaFon- D046 Bradford Ja- inson D018 Sarah Roberts taine cobsen (517) 373-1008 (517) 373-1180 (517) 373-8931 (517) 373-1798

D005 Fred Durhal D019 John Walsh D033 Ken Goike D047 Cindy Denby (517) 373-0844 (517) 373-3920 (517) 373-0820 (517) 373-8835

D006 Rashida Tlaib D020 Kurt Heise D034 Woodrow Stanley D048 Pam Faris (517) 373-0823 (517) 373-3816 (517) 373-8808 (517) 373-7557

D007 Thomas Stallworth D021 Dian Slavens D035 Rudy Hobbs D049 Jim Ananich (517) 373-2276 (517) 373-2575 (517) 373-1788 (517) 373-7515

D008 David Nathan D022 Harold Haugh D036 Pete Lund D050 Charles Smiley (517) 373-3815 (517) 373-0854 (517) 373-0843 (517) 373-3906

D009 Harvey Santana D023 Pat Somerville D037 Vicki Barnett D051 Joseph Graves (517) 373-6990 (517) 373-0855 (517) 373-1793 (517) 373-1780

D010 Phil Cavanagh D024 Anthony Forlini D038 Hugh D. Crawford D052 Gretchen (517) 373-0857 (517) 373-0113 (517) 373-0827 Driskell (517) 373-0828 D011 David Knezek D025 Henry Yanez D039 Klint Kesto (517) 373-0849 (517) 373-2275 (517) 373-1799 D053 Jeff Irwin (517) 373-2577 D012 Douglas Geiss D026 Jim Townsend D040 Michael McCready (517) 373-0852 (517) 373-3818 (517) 373-8670 D054 David Rutledge (517) 373-1771 D013 Andrew Kandrevas D027 Ellen Lipton D041 Martin Howrylak (517) 373-0845 (517) 373-0478 (517) 373-1783 D055 Adam Zemke (517) 373-1792 D014 Paul Clemente D028 Jon Switalski D042 Bill Rogers (517) 373-0140 (517) 373-1772 (517) 373-1784 D056 Dale Zorn (517) 373-2617

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...State Representatives

D057 Nancy Jenkins D071 Theresa Abed D085 Ben Glardon D098 Jim Stamas (517) 373-1706 (517) 373-0853 (517) 373-0841 (517) 373-1791

D058 Kenneth Kurtz D072 Ken Yonker D086 Lisa Posthumus D099 Kevin Cotter (517) 373-1794 (517) 373-0840 Lyons (517) 373-0154 (517) 373-0846 D059 Matt Lori D073 Peter MacGregor D100 Jon Bumstead (517) 373-0832 (517) 373-0218 D087 Mike Callton (517) 373-7317 (517) 373-0842 D060 Sean McCann D074 Rob VerHeulen D101 Ray Franz (517) 373-1785 (517) 373-8900 D088 Roger Victory (517) 373-0825 (517) 373-1830 D061 Margaret O’Brien D075 Brandon Dillon D102 Phil Potvin (517) 373-1774 (517) 373-2668 D089 Amanda Price (517) 373-1747 (517) 373-0838 D062 Kate Segal D076 Winnie Brinks D103 Bruce Rendon (517) 373-0555 (517) 373-0822 D090 Joe Haveman (517) 373-3817 (517) 373-0830 D063 Jase Bolger D077 Tom Hooker D103 Wayne Schmidt (517) 373-1787 (517) 373-2277 D091 Collene (517) 373-0154 Lamonte D064 Earl Poleski D078 Dave Pagel (517) 373-3436 D105 Greg MacMaster (517) 373-1795 (517) 373-1796 (517) 373-0829 D092 Marcia Hovey- D065 Mike Shirkey D079 Al Pscholka Wright D106 Peter Pettalia (517) 373-1775 (517) 373-1403 (517) 373-2646 (517) 373-0833

D066 Aric Nesbitt D080 Bob Genetski D093 Tom Leonard D107 Frank Foster (517) 373-0839 (517) 373-0836 (517) 373-1778 (517) 373-2629

D067 Tom Cochran D081 Dan Lauwers D094 Tim Kelly D108 Ed McBroom (517) 373-0587 (517) 373-1790 (517) 373-0837 (517) 373-0156

D068 Andy Schor D082 Kevin Daley D095 Stacy Oakes D109 John Kivela (517) 373-0826 (517) 373-1800 (517) 373-0152 (517) 373-0498

D069 Sam Singh D083 Paul Muxlow D096 Charles Brunner D110 Scott Dianda (517) 373-1786 (517) 373-0835 (517) 373-0158 (517) 373-0850

D070 Rick Outman D084 Terry Brown D097 Joel Johnson (517) 373-0834 (517) 373-0476 (517) 373-8962

36 MICHIGAN LEGISLATORS A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT A GUIDE TO UNDERSTANDING THE MICHIGAN MEDICAL MARIJUANA ACT

Summary of Legal Opinions and Court Findings

Findings from the Michigan Supreme Court

1. People v. Bylsma • Collective cultivation of cannabis plants This case was about a caregiver who was growing 24 plants for his patients, who also allowed two other caregivers to grow an additional 40± plants in the same enclosed, locked facility. The Court found that Bylsma in fact had dominion and control over all the plants, thus he was in violation of Section 4 (MCL 333.26424) and not entitled to use that provision in his defense. The Court also found that Bylsma could assert a Section 8 (MCL 333.26428) defense, in a pre-trial motion, because he satisfied it’s requirements.

Relevant findings: In this prosecution for the manufacture of marijuana in violation of the Public Health Code, MCL 333.740 (1) and (2)(d), we must determine whether § 4 of the Michigan Medical Marihuana Act (MMMA)1 provides a registered primary caregiver with immunity when growing marijuana collectively with other registered primary caregivers and registered qualifying patients. We hold that § 4 does not contemplate such collective action. As a result, defendant is not entitled to its grant of immunity from arrest, prosecution, or penalty, and we affirm the judgment of the Court of Appeals to the extent that it concluded that defendant was not entitled to § 4 immunity.

The “Court of Appeals erred when it concluded that defendant (Ryan Bylsma) was not entitled to assert the [Section] 8 affirmative defense solely because he did not satisfy the possession limits of [Section] 4. Rather, in People v Kolanek, we held that a defendant need not establish the elements of § 4 immunity in order to establish the elements of the § 8 defense.

2. People v. King/Kolanek • Established separate Section 4 & Section 8 protections The Supreme Court heard the appeal of King and Kolanek and issued a single finding that clarified the specific protections granted to registered patients and caregivers by the MMMAct. Justices found that two separate protections existed, Section 4 (MCL 333.26424), and Section 8 (MCL 333.26428),and established parameters for a patient or a caregiver to qualify for each.

Relevant findings: Given the plain language of the statute, we hold that a defendant asserting the § 8 affirmative defense is not required to establish the requirements of § 4, MCL 333.26424, which pertains to broader immunity granted by the act. The Court of Appeals erred by reaching the opposite conclusion in People v King, and we therefore reverse the Court of Appeals’ judgment in King.

Further, to establish the affirmative defense under § 8, we hold that a defendant must show under § 8(a)(1) that the physician’s statement was made after enactment of the MMMA but before commission of the offense.

The Court of Appeals reached this conclusion in People v Kolanek, and we affirm the Court of Appeals in this regard. However, the Court of Appeals also held that defendant could reassert the affirmative defense at trial, despite his failure at the evidentiary hearing to establish the existence of a timely physician’s statement under § 8(a)(1). This was error, and we reverse that portion of the Court of Appeals’ holding.

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This last requirement is significant because it indicates that the § 8 defense cannot be asserted for the first time at trial, but must be raised in a pretrial motion for an evidentiary hearing.

3. People v. McQueen • If sales of medical cannabis are permitted, what transfers of medical cannabis are immune under § 4, does operation of defendants business constitute a public nuisance, and more The Supreme Court heard the appeal of Brandon McQueen and Matthew Taylor who were sued by the Isabella County Prosecutor for operating a medical cannabis business named the Compassionate Apothecary, LLC, a business the Prosecutor claims was a public nuisance because it was not authorized by any provision of the Michigan Medical Marihuana Act. This has been called “the case that decides whether dispensaries are legal or not”, below is the Majority’s opinion, you decide.

Relevant findings: Contrary to the conclusion of the Court of Appeals, the definition of “medical use” in the MMMA includes the sale of marijuana. However, the Court of Appeals reached the correct result because the act does not permit a registered qualifying patient to transfer marijuana for another registered qualifying patient’s medical use. Accordingly, the prosecuting attorney was entitled to injunctive relief to enjoin the operation of defendants’ business because it constituted a public nuisance.

1. The MMMA authorizes the medical use of marijuana to the extent that it is carried out in accordance with the provisions of the act. Section 3(e) of the act, MCL 333.26423(e), defines “medical use” broadly to include the transfer of marijuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition. Because a transfer is any mode of disposing of or parting with an asset or an interest in an asset, including the payment of money, the word “transfer,” as part of the statutory of “medical use,” also includes sales. The Court of Appeals erred by concluding that a sale of marijuana was not a medical use, and that portion of its judgment was reversed.

2. Under § 7(a) of the MMMA, MCL 333.26427(a), any medical use of marijuana must occur in accordance with the provisions of the act. Absent a situation triggering the affirmative defense of § 8 of the MMMA (MCL 333.26428), § 4 of the act (MCL 333.26424) sets forth the requirements for a person to be entitled to immunity for the medical use of marijuana. MCL 333.26424(d) creates a presumption of medical use and then states how that presumption may be rebutted. A rebutted presumption of medical use renders immunity under § 4 of the MMMA inapplicable. Under the statute, the presumption may be rebutted upon a showing that the conduct related to marijuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the medical condition in accordance with the act. The definite article in § 4(d) refers to the qualifying patient who is asserting § 4 immunity. Because the MMMA’s immunity provision contemplates that a registered qualifying patient’s medical use of marijuana only occur for the purpose of alleviating his or her own debilitating medical condition or symptoms associated with that condition, and not another patient’s condition or symptoms, § 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient. Similarly, to be eligible for § 4 immunity, a registered primary caregiver must be engaging in marijuana-related conduct for the purpose of alleviating the debilitating medical condition, or symptoms associated with the medical condition, of a registered qualifying patient to whom the caregiver is connected through the registration process of Michigan’s Department of Community Health. Thus, § 4 does not offer immunity to a registered primary caregiver who transfers marijuana to anyone other than a registered qualifying patient to whom the caregiver is connected through the state’s registration process. Defendants’ business facilitated patient-to-patient sales, but those transfers did not qualify for § 4 immunity because they encompassed marijuana-related conduct that was not for the purpose of alleviating the transferor’s debilitating medical condition or its symptoms. Because defendants’ medical use of marijuana did not comply with the immunity provisions of §§ 4(a), (b), and (d), defendants could not claim that § 4 insulated them from a public nuisance claim.

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3. Section 4(i) of the MMMA, MCL 333.26424(i), permits any person to assist a registered qualifying patient with using or administering marijuana, but the terms “using” and “administering” are limited to conduct involving the actual ingestion of marijuana. Section 4(i) did not apply to defendants’ actions, which involved assisting patients with acquiring and transferring marijuana.

4. The affirmative defense of § 8 of the MMMA, MCL 333.26428, applies only to criminal prosecutions involving marijuana, subject to limited exceptions contained in § 8(c) for disciplinary action by a business or occupational or professional licensing board or bureau or forfeiture of any interest in or right to property. Accordingly, § 8 did not provide defendants a basis to assert that their actions were in accordance with the MMMA.

5. Under MCL 600.3801, any building used for the unlawful manufacture, transporting, sale, keeping for sale, bartering, or furnishing of any controlled substance as defined in MCL 333.7104 is declared a nuisance. Marijuana is a controlled substance under MCL 333.7104. Because the medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the MMMA, the MMMA controlled whether defendants’ business constituted a public nuisance. While the Court of Appeals erred by excluding sales from the definition of “medical use,” it correctly concluded that the MMMA does not contemplate patient-to-patient sales of marijuana for medical use and that by facilitating such sales, defendants’ business constituted a public nuisance.

4. State v. Koon • Supremacy of “zero tolerance” while driving Koon appealed his conviction to the Supreme Court and Justices, in a unanimous opinion per curiam, in lieu of granting leave to appeal and without oral argument, held while the MMMAct does not permit all types of medical use of marijuana under all circumstances, the MMMA’s protections do extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. Consequently, MCL 257.625(8), the State’s so-called “zero tolerance” provision for THC, does not apply to the medical use of marijuana.

Relevant findings: The statutory definition of “medical use” includes “internal possession.” Therefore, the MMMA shields registered patients from prosecution for the internal possession of marijuana, provided that the patient does not otherwise possess more than 2.5 ounces of usable marijuana. But the MMMA does not provide carte blanche to registered patients in their use of marijuana. Indeed, MCL 333.26427(b) provides a list of activities that are not protected by the MMMA. Engaging in one of those activities removes a registered patient from the MMMA’s protection because he or she is no longer acting in accordance with the MMMA. One prohibited activity is driving while under the influence of marijuana. This act shall not permit any person to do any of the following: (4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

The MMMA, however, does not define what it means to be “under the influence” of marijuana. While we need not set exact parameters of when a person is “under the influence,” we conclude that it contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, taking the MMMA’s provisions together, the act’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. In contrast, the Michigan Vehicle Code’s zero-tolerance provision prohibits the operation of a motor vehicle by a driver with an infinitesimal amount of marijuana in his or her system even if the infinitesimal amount of marijuana has no influence on the driver.

The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with the Michigan Vehicle Code’s prohibition against a person driving with any amount of marijuana in his or her system. When the MMMA conflicts with another statute, the MMMA provides that “[a]ll other acts and parts of acts

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inconsistent with [the MMMA] do not apply to the medical use of marihuana . . . .” Consequently, the Michigan Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana.

In sum, we conclude that the MMMA is inconsistent with, and therefore supersedes, MCL 257.625(8) unless a registered qualifying patient loses immunity because of his or her failure to act in accordance with the MMMA.

Findings from the Michigan Court of Appeals 1. Ter Beek v. City of Wyoming • Limits of municipal zoning ordinances, and the issue of State and Federal preemption

This case was about a municipality attempting to regulate the cultivation and transfer of medical cannabis within their jurisdiction by passing Zoning Ordinance amendments that prohibited caregivers from cultivating and delivering medical cannabis to patients. The City of Wyoming also argued that the Michigan Medical Marijuana Act was preempted by federal statute, but Justices disagreed.

Relevant zoning findings: Applying the plain meaning of the words used in the immunity provision of the MMMA to defendant’s ordinance, there can be no doubt that enforcement of the ordinance could result in the imposition of sanctions that the immunity provision of the MMMA does not permit. Specifically, the provisions directly conflict because the ordinance expressly prohibits uses contrary to federal law, and therefore, provides for punishment of qualified and registered medical marijuana users in the form of fines and injunctive relief, which constitute penalties that the MMMA expressly prohibits. See Shelby Twp v Papesh, 267 Mich App 92, 105-106; 704 NW2d 92 (2005) (“A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.”).

Further, we find defendant’s arguments to the contrary unavailing. To the extent that defendant argues that its ordinance does not conflict with the MMMA because it does not require criminal or civil penalties, we note that civil penalties in response to zoning violations are expressly provided for in defendant’s city code. Wyoming Ordinance, § 1-27(a). The fact that civil penalties are not required does not save the ordinance from direct conflict with the MMMA because even permitting the imposition of a civil penalty directly conflicts with the plain language of MCL 333.26424(a). Moreover, defendant’s ordinance does not attempt to regulate lawful conduct, but rather, attempts to completely ban the medical use of marijuana on the basis of the authority of the CSA, a federal criminal statute. Thus, any sanction imposed pursuant to the ordinance rests on the premise that the medical use of marijuana permitted by the MMMA is criminal activity, a proposition that is in direct conflict with the MMMA. In addition, we reject the notion implied in defendant’s brief on appeal that enforcing the ordinance through the remedy of civil injunctive relief is not a penalty. We conclude that civil injunctive relief that could be used to prohibit any medical use of marijuana within the city would constitute a “penalty in any manner.” MCL 333.26424(a).

Accordingly, we hold that defendant’s ordinance, Wyoming Ordinance, § 90-66, is void and unenforceable to the extent it prohibits medical use of marijuana in accordance with the MMMA because it is preempted by MCL 333.26424(a). Id.

Relevant preemption findings: Therefore, when the immunity granted in MCL 333.26424(a) is read in context with MCL 333.26422(b) and (c), it is plain that the immunity provided for in § 4(a) was not intended to exempt qualified medical marijuana users from federal prosecutions. The language in MCL 333.26422(b) and (c) refers to changing state law and acknowledges that federal law prohibits marijuana. Moreover, the proclamation in MCL 333.26422(b) that changing state law will protect “the vast majority of seriously ill people who have a medical need to use marihuana” from arrest, instead of stating that the change in the law will protect all qualified medical cannabis users from arrest acknowledges that users of medical marijuana are still subject to federal prosecution.

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Further, construing MCL 333.26424(a) to grant immunity only from state prosecution and other penalties avoids the absurd result that the MMMA purportedly preempts federal prosecutions, and avoids conflict with the CSA. See Ryan, 259 Mich App at 30 (when construing multiple statutes together, this Court should arrive at a construction that avoids absurd results or conflicts, if possible). The court in Hicks, 722 F Supp 2d at 833, followed this approach when it cited MCL 333.26422(c) and noted that “the MMMA specifically acknowledges that it does not supercede [sic] or alter federal law.” Therefore, we conclude that the immunity granted under the statute was not intended to include protection from federal prosecutions. See id.; Ryan, 259 Mich App at 30.

Moreover, the MMMA’s decriminalization of the medical use of marijuana is not contrary to the CSA’s provisions punishing all uses of medical marijuana. The CSA provisions do not preempt the MMMA’s grant of immunity as found in MCL 333.26424(a) because it is well established that Congress cannot require the states to enforce federal law. See, e.g., Printz v United States, 521 US 898, 924; 117 S Ct 2365; 138 L Ed 2d 914 (1997) (“Even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts . . . .”) (citation and quotation omitted); New York v United States, 505 US 144, 166; 112 S Ct 2408; 120 L Ed 2d 120 (1992) (“We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.”). Thus, while Congress can criminalize all uses of medical marijuana, it cannot require the states to do the same. Id. Accordingly, Michigan is not required to criminalize all uses of medical marijuana and the immunity afforded to the medical use of marijuana by MCL 333.26424(a) is permissible. See id. Therefore, we conclude that the immunity provision of MCL 333.26424(a) is not preempted by the CSA because it only grants immunity from state prosecution and, therefore, does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Defendant’s ordinance is void and unenforceable to the extent that it purports to sanction the medical use of marijuana in conformity with the MMMA because the ordinance directly conflicts with MCL 333.26424(a). Walsh, 285 Mich at 636. Moreover, MCL 333.26424(a) is not preempted by the CSA because the limited grant of immunity from a “penalty in any manner” pertains only to state action and does not purport to interfere with federal enforcement of the CSA.

2. State v. Nicholson • Established parameters for immunity from arrest In this case the Court of Appeals clarified the elements required for a medical marihuana cardholder to be immune from arrest in a law enforcement encounter under MCL 333.26424. In this case defendant had applied with the State for the registry program, but did not have a copy of his application with him at the time of his encounter.

To be IMMUNE from arrest during a law enforcement encounter, a card holding patient or caregiver must be in possession of a legal amount of medical marijuana or plants, they must also possess their Michigan Medical Marihuana Program registry identification card (or a photocopy of their application with proof that the State has received the application more than 25 days prior to the date of the encounter), and a valid State-issued identification card with your photo on it.

Relevant findings: In sum, we hold that defendant was not immune from arrest because his application paperwork for a registry identification card was not reasonably accessible at the location of his arrest. We further hold that because defendant did possess a registry identification card that had been issued before his arrest when being prosecuted, he is immune from prosecution unless evidence exists to show that his possession of marijuana at the time was not in accordance with medical use as defined in the MMMA or otherwise not in accordance with the provisions of the MMMA.

3. People v. Brown • Search warrants served on card holders In this case the Court of Appeals was asked if the MMMA requires law enforcement to determine whether a suspect is a registered Medical Marihuana Program participant prior to serving a warrant on a suspect. While the Court

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found that it was not law enforcement’s responsibility to verify if a suspect was a licensed card holder, it did note however if law enforcement believes the suspect is operating a compliant medical marijuana facility, they are required to disclose that information when requesting the warrant.

Relevant findings: The possession, manufacture, use, creation, and delivery of marijuana remain illegal in this state, even after the enactment of the MMMA. Thus, we conclude that to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect’s marijuana- related activities are specifically not legal under the MMMA. Probable cause exists if there is a substantial basis for inferring a fair probability that contraband or evidence of a crime exists in the stated place. Kazmierczak, 461 Mich 417-418.

Defendant has presented no authority indicating that for probable cause to exist, there must be a substantial basis for inferring that defenses do not apply. See, generally, Lemons, 454 Mich at 246 n 15 (discussing affirmative defenses).

While we decline, in light of the pertinent case law, to impose an affirmative duty on the police to obtain information pertaining to a person’s noncompliance with the MMMA before seeking a search warrant for marijuana, if the police do have clear and uncontroverted evidence that a person is in full compliance with the MMMA, this evidence must be included as part of the affidavit because such a situation would not justify the issuance of a warrant. This scheme will reduce any potential (however unlikely) for police overreach in attempting to obtain search warrants.

4. People v. Keil • Establishing a prima facie case for a Section 8 affirmative defense In this case the Court of Appeals was asked to reverse a circuit court conviction for manufacturing a controlled substance. The defendant, a registered primary caregiver, sought dismissal of the charge based on the affirmative defenses located under § 4 and/or § 8 of the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26421 et seq. The circuit court denied defendant’s motion to dismiss based on either §, but the Supreme Court disagreed. In it’s opinion, the court noted the Supreme Court had recently clarified the interaction between the § 4 and the § 8 defenses in People v. King/Kolanek. Thus, the Appeals Court ruled defendant was entitled to assert a § 8 affirmative defense based on the Supreme Court opinion, while denying the § 4 immunity defense based on the fact that defendant was not in full compliance with § 4 provisions.

Additionally, justices affirmed the three requirements for asserting a successful § 8 affirmative defense. Those elements are described in the Relevant findings below, but in summary, possessing a valid Michigan Medical Marihuana Program registry identification card satisfies elements 1 and 3 of a successful § 8 affirmative defense. All that remains is for the defendant to prove that the cannabis in question was to provide an uninterrupted supply for the patient’s treatment of their debilitating medical condition(s).

Relevant findings: The three elements of an affirmative defense: (1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and

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(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.

Employment and Medical Marijuana A federal U.S. Appeals Court upheld a district court ruling that found the MMMA did not regulate private employment but that the statute could potentially provide a defense to criminal prosecution or any other adverse action by the state. The district court concluded, therefore, that private employees are not protected from disciplinary action as a result of their use of medical cannabis, nor are private employers required to accommodate the use of medical cannabis in the workplace. In rendering its decision, the district court explained that Michigan voters could not have intended such consequences and that accepting Plaintiff’s argument would create a new category of protected employees, which would “mark a radical departure from the general rule of at-will employment in Michigan.” Casias, 764 F.Supp. 2d at 922.

Children and Custody The Michigan Medical Marihuana Act provides specific protection for people who have children. MCL 333.26424 states:

“A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

Please notice the part that begins with the word “unless”. Prosecutors and judges in a few jurisdictions are finding some very creative ways to define “unreasonable danger”. Do not expose children to any area where plants are being cultivated, processed, stored, or transacted as that greatly increases your risk of custody issues after a raid.

If a prosecutor can get your child to tell the court they have been in your grow room or watched you work with cannabis, your legal problem will get a whole lot worse!

Parole and Probation For those who are on bond, probation or parole, the court can overrule the Medical Marihuana Act and refuse to allow an otherwise authorized patient or caregiver to use or possess marijuana — even if they have a Medical Marijuana ID Card. When you are on probation or parole, your release from jail is called a “conditional release”, meaning that your freedom depends on obeying the terms of your release. If you do not follow those terms, you could be arrested and returned to jail or prison.

Do NOT make the mistake of just assuming that because you have a Marijuana Medical Program Registry ID Card you can continue to consume cannabis while on bond, probation, or parole. After being arrested, your continued use of medical cannabis must be a provision of your supervision, and an issue your attorney needs to address with the prosecutor and the judge immediately. Most judges take a dim view of cannabis use because they are accustomed to it being totally illegal, but if your attorney can convince the judge that you need it for your medical condition, there is still a very good chance that some judges in some jurisdictions will permit a person to use medical cannabis while on release.

Absent written permission from your judge, consuming cannabis while on bond, probation or parole will automatically lead to a probation violation for “using illegal drugs or substances.” Be prepared and bring in your medical documents including proof of your condition, current chart notes from your physician, and maybe even a letter from the physician who wrote your medical marijuana certification stating why medical cannabis is a good treatment option for you. You will be required to prove you have a debilitating medical condition that qualifies under Michigan statute, and that you must have medical cannabis to treat that condition.

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Public Housing (http://portal.hud.gov/huddoc/med-marijuana.pdf) The Michigan Medical Marihuana Act provides no specific protection for people who live in subsidized housing, and in fact some patients have been forced to move because of their medical cannabis use.

A statement from the U.S. Department of Housing and Urban Development issued on February 10, 2011, outlines a two stage policy. One policy for new admissions that states, “Based on federal law, new admissions of medical marijuana users are prohibited into the Public Housing and Housing Choice Voucher programs.” And a second policy for current beneficiaries that requires Public Housing Authorities (PHA) to develop “occupancy standards and lease provisions that will allow the PHA to terminate assistance for use of a controlled substance. However, the law does not compel such action and PHA’s have discretion to determine continued occupancy policies that are most appropriate for their local communities. PHA’s can also determine whether to deny assistance to or terminate individual medical marií nano users, rather than entire households for both applicant and existing residents when appropriate. PHA’s have discretion to determine, on a case- by-case basis, the appropriateness of program termination of existing resìdents for the use of medicaì marijuana.”

Firearms The Michigan Medical Marihuana Act provides no specific protection for people who protect their cannabis facility with a rifle, shotgun, or handgun. If you bring or keep firearms in your facility, they should be stored unloaded away from all cannabis, all the time.

On September 21, 2011, the Bureau of Alcohol, Tobacco, and Firearms (ATF) issued the following statement: “Therefore, any person who uses or is addicted to marijuana, regardless of Whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question ll.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question l l.e. on ATF Form 4473.”

In spite of this action taken by ATF, this issue is unsettled and there seems to be no consistent policy. In an article that appeared on MLive.com, gun store owner Randy Bullock, owner of Bullock’s Guns & More in Genesee Township, stated, “I wouldn’t want to sell them a gun and be responsible for them shooting somebody,” He added he doesn’t mind the times he’s had to turn customers away because they smell of marijuana or admit to using the drug medically. “I’m not losing my license over a thing like that.”

But gun dealers aren’t required to ask specifically about medical marijuana and, unless misused, it’s not something that would come up on the criminal background check. Conversely, the issue of medical marijuana and guns has come up at the Genesee County gun board, a collection of local law and government officials charged with deciding who can carry a concealed weapon. In 2011, the board decided — by a 2-1 vote — to allow a 36-year-old medical marijuana user to keep his concealed weapon privileges. Those voting to allow the license did so based on assurance from the U.S. attorney’s office that it had no intention of prosecuting CCW holders violating federal law. The Sept. 21 letter from the ATF was “really just a clarification” of the agency’s stance on the issue, said ATF spokesman Drew Wade.

Though medical marijuana is illegal under federal law, users operate under the assumption that U.S. Department of Justice officials will make good on their pledge not to prosecute medical cannabis card holders. That decision is based in part on the circumstances in which law enforcement officials find the firearms when they raid your facility.

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If weapons are laying about and are loaded, there’s a higher probability that they will interpret those weapons as being used to protect the cannabis and will be more likely to seize them, and to charge you with a weapons violation on top of manufacturing. If all weapons are stored unloaded in a safe or closet, the odds are better that law enforcement will not perceive them as defensive, and you stand a better chance of keeping them, and not being charged with additional weapons violations.

Difference between Public and Private Space The Michigan Medical Marihuana Act limits the places where a person can consume medical cannabis. In addition to other provisions of MCL 333.26427, § (b) “does not permit a card holder to consume cannabis on any form of public transportation, or in any public place.”

The MMMAct again does not define “public place” so we must refer to other statutes for guidance. MCL 333.12601 (1) (q), a law that pertains to Michigan’s smoking ban, defines a public place as; “Public place”, except as otherwise provided in subsection (2), means any of the following:

(i) An enclosed, indoor area owned or operated by a state or local governmental agency and used by the general public or serving as a meeting place for a public body, including an office, educational facility, home for the aged, nursing home, county medical care facility, hospice, hospital long-term care unit, auditorium, arena, meeting room, or public conveyance. (ii) An enclosed, indoor area that is not owned or operated by a state or local governmental agency, is used by the general public, and is any of the following: (A) An educational facility, (B) A home for the aged, nursing home, county medical care facility, hospice, or hospital long-term care unit, (C) An auditorium, (D) An arena, (E) A theater, (F) A museum, (G) A concert hall, (H) Any other facility during the period of its use for a performance or exhibit of the arts. (iii) Unless otherwise exempt under this part, a place of employment.

(2) In addition, article 1 contains general definitions and principles of construction applicable to all articles of this code.

Michigan Attorney General Bill Schuette also issued his opinion regarding smoking cannabis in a “public place”, it states:

The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits qualifying registered patients from smoking marihuana in the public areas of food service establishments, hotels, motels, apartment buildings, and any other place open to the public.

Do not make the mistake of thinking your vehicle is a private place when it’s parked in a public parking area, it’s not. Mr. Schuette’s opinion includes “any other place open to the public”, that’s a catch-all phrase to give law enforcement the authority to arrest people who are consuming medical cannabis anywhere except inside a private residence.

When does a clone or cutting become a plant The MMMAct does not define a “plant”, only “usable marihuana”, but MCL 333.7401, § 5, states:

“As used in this section, “plant” means a marihuana plant that has produced cotyledons or a cutting of a marihuana plant that has produced cotyledons.”

Because they begin the provision with the words, “As used in this section’”, a plant could be defined differently by the courts, but it’s unknown if any court have issued such a ruling yet either way.

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What does “possession” mean The MMMAct does not define “possession”, but in September, 2012, the Michigan State Bar Association established what “possession” means when used in context with controlled substances by Michigan juries. The Michigan Criminal Jury Instructions state:

Possession does not necessarily mean ownership. Possession means that either: (1) the person has actual physical control of the [substance / thing] , as I do with the pen I’m now holding, or (2) the person has the right to control the [substance / thing], even though it is in a different room or place.

- Possession may be sole, where one person alone possesses the [substance / thing]. - Possession may be joint, where two or more people each share possession.

It is not enough if the defendant merely knew about the [state substance or thing] ; the defendant possessed the [state substance or thing] only if [he / she] had control of it or the right to control it, either alone or together with someone else.

In People v Williams, 212 Mich App 607, 538 NW2d 89 (1995), the court of appeals held that “possession” for purposes of the felony-firearm statute is more restricted than for purposes of drug prosecutions. Specifically, the court found that a person who is away from home cannot be deemed to possess a firearm found in his or her house, even though the same person may be in constructive possession of drugs found at his or her house.

What Does Legalization Mean? There are four primary ways of “legalizing” cannabis. Medical cannabis laws, to some extent, “legalize” or relax laws for those who comply with their provisions. Below are the other common forms of so-called legalization.

Full Legalization - Tax & Regulate If cannabis were to be fully legalized, that would mean the state would repeal all statutes, or parts of statutes, that prohibit the cultivation, consumption, delivery, possession, transportation, and any other use of cannabis, and establish a regulatory framework for it’s cultivation, sale, and consumption. It would require that federal authorities enforce federal cannabis statutes without the resources of Michigan taxpayers.

While any cannabis activity would still be illegal under federal statute, Michigan prosecutors would be forbidden from filing State charges, and law enforcement officials would likely be prohibited from making arrests, or assisting federal authorities with their operations that involve cannabis. They would however be permitted to make, and assist federal authorities with arrests for other controlled substances that kill people like heroin, meth, and diverted prescription painkillers. State officials would also still be obligated to create and implement a program to carry out the provisions of any such State act. Colorado and Washington State have taken this step and other are following.

If cannabis becomes legalized at the federal level, it would likely become just like any other consumable product. It would be regulated at various stages to ensure it’s potency, consistency and safety. It would be taxed at the same rate as other similar consumable products. Market forces would shape a new industry that would create thousands of businesses and jobs, and provide a welcome opportunity to a broad segment of the socioeconomic spectrum.

Legalization is often referred to “tax and regulate” because that model incorporates governmental regulation, oversight and taxation of cannabis from seed to sale.

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Partial Decriminalization - Civil Infraction with a Fine Partial decriminalization of cannabis ends misdemeanor penalties that require a court appearance for it’s use and possession up to some specified amount, usually 2 ounces or less. Those caught consuming or possessing cannabis under “partial decrim” are ticketed and fined, usually $200 or less. The cannabis is seized, but the person cited would not be arrested and held for arraignment for the use or possession of cannabis alone. Partial decriminalization can be drafted to permit or exclude any activities it’s drafter’s choose, such as the age of those who are protected, the amount of cannabis a person could possess, the type of location the cannabis can be consumed, plus and a variety of other provisions according to community standards.

Michigan cities that have partial decriminalization laws include Ann Arbor, and Grand Rapids.

Full Decriminalization - No Infraction, no Fine Full decriminalization is similar to legalization, it also means the state would repeal all statutes, or parts of statutes, that prohibit the cultivation, consumption, delivery, possession, transportation, and any other use of cannabis, but it would not provide any regulatory framework for it’s cultivation, sale, or consumption. It would require that federal authorities enforce federal cannabis statutes without using the resources of Michigan taxpayers.

Additionally, while any cannabis activity would still be illegal under federal statute, Michigan prosecutors would be forbidden from filing state charges against people for engaging in any cannabis-related activities. Law enforcement officials would likely be prohibited from making arrests, or assisting federal authorities with their operations with regard to cannabis. They would however be permitted to make arrests, and assist federal authorities with arrests for other controlled substances that kill people like heroin, meth, and diverted prescription painkillers.

Full decriminalization can be drafted to permit or exclude any activities it’s drafter’s choose, such as the age of those who are protected, the amount of cannabis a person could possess, the type of location the cannabis can be consumed, plus and a variety of other provisions according to community standards.

The Cities of Flint and Detroit have both decriminalized the possession of small amounts of cannabis on private property.

By making a monetary contribution to Michigan Compassion, you make it possible to educate thousands of patients, Caregivers and Healthcare professionals about the benefits of Medical Cannabis. Your donation allows us to continue community outreach programs just like this one! FOR MORE INFORMATION VISIT MYCOMPASSION.ORG

Michigan Compassion is a qualified 501(c)(3) tax-exempt organization and your donations are tax-deductible.

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Understanding the Judicial Process

CHARGED WITH A MISDEMEANOR OR FELONY OFFENSE? from the Michigan Prosecuting Attorneys Association

If you have been charged with a criminal offense, you should understand how the judicial process works.

ARRAIGNMENT This is the first court appearance for any misdemeanor or felony. Once arrested and charged with a felony, the suspect appears in District Court for arraignment. The defendant is told what the charge(s) is (are) and the maximum penalty if convicted, and is advised of his constitutional rights to a jury or bench trial, appointed attorney, presumption of innocence, etc. The charging document is called a Complaint. The conditions and amount of bond are determined by the judge. In some cases --- generally based on the nature of the charge --- the Judge imposes conditions on the bond, such as no contact with the victim. Bond is set in almost every case, but it is up to the defendant’s own resources to post the bail money, which allows him to be released. All further pre-trial procedures are determined by whether the defendant is charged with a felony or misdemeanor:

MISDEMEANOR CHARGE At a misdemeanor arraignment, the defendant will be given a chance to enter a plea to the charge: plead guilty, plead not guilty, or stand mute (i.e., remain silent, which is treated by the court as if the defendant pled not guilty). If the defendant pleads guilty or no contest, the Judge may sentence the defendant on the spot or may reschedule the case for a sentencing date, which will give the probation department time to prepare a pre-sentence report including background information about the defendant and the crime, make a sentencing recommendation, etc. If the defendant stands mute or pleads not guilty, the case will be scheduled for a pre-trial conference.

Pretrial Conference --- All misdemeanor cases are scheduled for a meeting between an Assistant Prosecuting Attorney and the defendant (or his attorney) to determine whether the case will go to trial or be resolved with a plea. These meetings focus on resolving the case short of trial. The Judge and witnesses are not directly involved in misdemeanor pre-trial conferences. If a plea bargain is going to be offered by the Prosecutor, it is done here.

Pretrial Proceedings --- Many other events can occur prior to trial. Depending on the nature of the case, there may be pre-trial hearings on Constitutional issues (confessions, searches, identification, etc.). The issues are presented to the Court through written “motions” (e.g., Motion to Suppress Evidence, etc.). The judge must determine whether evidence will be admitted or suppressed at the defendant’s trial, whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial.

FELONY CHARGE At a felony arraignment in District Court, the defendant does not plead guilty or not guilty. He is advised of his right to a preliminary examination within 14 days of the arraignment. The arraigning judge may also consider a defendant’s request for a court-appointed attorney at this time.

Pre-Exam Conference --- Some courts schedule a “Pre-Exam Conference” several days before the scheduled Preliminary Examination. The Pre-Exam Conference operates like a misdemeanor pre-trial conference, as a meeting between the Prosecutor and defendant (or his attorney) to see if the case can be resolved without the need to subpoena witnesses for the “Prelim”.

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Felony Preliminary Examination --- This is a contested hearing before a District Court Judge, sometimes called a “probable cause hearing”, held within 14 days after arraignment. The Prosecutor presents witnesses to convince the Judge that there is at least probable cause to believe that the charged crime(s) was (were) committed and that the defendant committed the crime(s). Because the burden of proof is much less than at a trial, the Prosecutor generally does not call all potential witnesses to testify at the “prelim”; generally, the victim and some eye witnesses plus some of the police witnesses testify. The defendant, through his attorney, can cross-examine the witnesses and present his own evidence (including witnesses). If probable cause is established, the defendant is “bound over” (i.e., sent to) Circuit Court for trial. If the Judge decides that there is not probable cause that the defendant committed the charged crime(s), the judge can bind the case over on different charges, can reduce the charges to misdemeanors for trial in District Court, or can dismiss charges. A defendant can give up his right to a Preliminary Examination. Most felonies arrive in Circuit Court after such a “waiver”.

Circuit Court Arraignment --- After the case is sent to Circuit Court, the defendant is again arraigned (given formal notice of the charges against him or her). The charging document is called an Information. He or she is again advised of his/her constitutional rights, and enters a plea to the charge (guilty, not guilty or stand mute).

Pre-Trial Conference --- The Circuit Court may schedule a meeting between an Assistant Prosecuting Attorney and the defendant’s attorney to determine whether the case will go to trial or be resolved with a plea.

Pretrial Proceedings --- The Circuit Court Judge may be called upon to resolve various pre-trial issues, some of which determine whether the case will continue to a trial, be resolved with a plea, or be dismissed; whether evidence will be admissible at trial; etc.

TRIAL (JURY OR BENCH/JUDGE) A trial is an adversary proceeding in which the Prosecutor must present evidence to prove the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the Prosecutor’s evidence.

Both the defendant and the Prosecutor (representing the People of the State of Michigan) have the right to a trial by a jury. Sometimes, both sides agree to let a Judge listen to the evidence and decide the case without a jury; this is called a “bench trial”. In a jury trial, the jury is the “trier of fact”; in a bench trial, the judge is. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime.

Here is a general outline of the steps in a jury trial:

1. residents of the local county are randomly selected from a Secretary of State list of licensed drivers, and are summoned to the Court as potential jurors; 2. a blind draw selects twelve people from that group in felonies (six in District Court misdemeanors); 3. Voir Dire: the Judge, Prosecutor & defense attorney question jurors about their backgrounds and beliefs; 4. the attorneys are permitted a limited number of “peremptory” challenges to various jurors (or an unlimited number of challenges for good cause); 5. after twelve (or six) acceptable jurors remain, the Judge administers an oath to the jury and reads basic instructions about the trial process, etc.; 6. the Prosecutor gives an opening statement to outline the People’s case and evidence to the jury; 7. the defense may give a similar opening statement, or wait until later in the trial; 8. the Prosecutor calls witnesses, which the defense may cross examine; 9. the People close their proofs; 10. the defense may call witnesses, if it wants, and the Prosecutor may cross-examine them; 11. the defense rests; 12. the Prosecutor may present “rebuttal” witnesses/evidence to challenge evidence presented by the defendant during his proofs; 13. the Prosecutor rests; 14. occasionally, the trial judge will let the defense present “sur-rebuttal” witnesses to respond to the Prosecutor’s rebuttal witnesses’ testimony; 15. the Prosecutor presents a closing summary to the jury; 16. the defense attorney presents a closing summary to the jury; 17. the Prosecutor may present a rebuttal argument to the jury to respond to the defendant’s attorney’s closing summary; 18. the judge gives the jury detailed legal instructions about the charged crimes, the deliberation process, etc.; 19. the jury deliberates and returns a verdict.

A criminal case jury verdict must be unanimous.

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Being a Responsible Cannabis Consumer

When cannabis (marijuana) is enjoyed responsibly, subjecting it’s consumers to harsh criminal and civil penalties provides no public benefit and causes terrible injustices. For reasons of public safety, public health, economics and justice, cannabis prohibition laws should be repealed to the extent that they criminalize responsible consumption.

Responsible cannabis consumers don’t “use pot”, they “consume cannabis”. Cannabis is an adult consumer product like any intoxicant including, alcohol or tobacco. In fact it’s far less harmful than both those adult products, and it’s also less harmful than other non-adult products like over-the-counter medications and sugar.

I. Adults Only Cannabis consumption is for adults only. It is irresponsible to provide cannabis to children.

II. No Driving Responsible cannabis consumers do not operate a motor vehicle or other dangerous machinery while impaired by cannabis, nor (like other responsible citizens) while impaired by any other substance or condition, including some medicines and fatigue.

III. Set and Setting Responsible cannabis consumers carefully consider their surroundings and environment before consuming cannabis away from their homes.

IV. Resist Abuse Consumption of cannabis, to the extent that it impairs health, personal development or achievement, is abuse, to be resisted by responsible cannabis consumers.

V. Respect Rights of Others A responsible cannabis consumer does not violate the rights of others, observes accepted standards of courtesy and public propriety, and respects the preferences of those who wish to avoid cannabis entirely.

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