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A Brief History of Michigan Marijuana Laws

Dec 15th, 2016 Criminal Penalties Marijuana Laws A Brief History of Michigan Marijuana Laws

What follows is a history of the significant events and court rulings that have lead up to the current laws related to medical marijuana in Michigan.

2008 – Michigan voters approve the legalization of medical marijuana.

In November 2008, Michigan voters were confronted with a ballot proposal to allow physician-approved use of marijuana for certain medical conditions including cancer and AIDS.  It also allowed patients to grow their own medicine, i.e., medical marijuana, and allowed caregivers to grow marijuana in a locked facility.  The ballot proposal passed by a large margin, and in this way, Michigan joined the handful of States allowing the licensed use of medical marijuana.

However, a ballot proposal is not a law, so the actual series of law, together called an “act” was hastily written and approved by Michigan’s lawmakers.  These laws were enacted beginning in December, 2008.  The resulting Act, which of course was/is a series of statutes, became the “Michigan Medical Marihuana Act,” (MMMA) and is found at Michigan Complied Laws 333.26424.

According to the MMMA, in Michigan a licensed patient can grow 12 plants for his/her own use. A licensed medical marijuana caregiver can grow up to 12 plants for 5 patients. If the caregiver is also a patient then a single individual can lawfully grow 6×12 plants = 72 plants total.  A licensed medical marijuana patient can also possess a small amount of “usable” marijuana. (2.5 oz.).

The MMMA also provides protections from criminal prosecution for the medical use of marihuana. Called “section 8 defenses” the MMMA precludes criminal prosecution for the possession or growing of marijuana. The MMMA also provides a system of registry identification cards for qualifying patients and primary caregivers.  More information about this, and information about applying for a medical marijuana license, can be found at the Michigan Department of Licensing and Regulatory Affairs Office web-site.

2009 – Federal Government tries to clarify its position relative to marijuana – the Ogden Memo.

The federal government tells Michigan that marijuana is still illegal under the federal controlled substances act, as set forth in Title 21 of United States Code.  Furthermore, that Michigan could not make marijuana legal at the federal level, meaning people in lawful possession of, or lawfully manufacturing, marijuana according to Michigan law could still be prosecuted criminally at the federal level.  In this way, the Ogden memo made it clear that the federal government was reserving the right to prosecute offenders of the controlled substances act, including marijuana crimes, under federal law. However, the memo also suggested that the department would not prosecute patients and distributors who are in “clear and unambiguous compliance” with state laws. The letter specifically indicated that:

“This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all the above factors create a legal defense to a violation of the Controlled Substances Act.”

2009 – Medical marijuana dispensaries begin to spring up around the state.

Emboldened by the law, creative entrepreneurs began to envision and create various businesses where medical marijuana could be purchased and/or used. These businesses operated within a very gray area of the law.  This is because, in retrospect, the bare-boned Michigan Medical Marijuana Act was poorly conceived and poorly written, and therefore, it left open many important questions, including whether dispensaries of any kind were legal. This was causing great consternation for law enforcement and city officials around the state.

Similarly, there were questions of what to do with “overage,” and “waste” that is, the amount of marijuana, or parts of the plant, left over after the 12 plants were grown and/or sold?

This uncertainty led to the successful prosecution of individuals who were trying to comport with the law. These individuals, and the lawyers representing them, were often aghast when they realized the degree of disdain with which their seemingly lawful activities were perceived by the executive and judiciary branches of government.

2010 – Michigan Court of Appeals tries to clarify poorly written Medical Marijuana law – People v. Redden.

Partially to address this consternation, and to help clarify this law, the Michigan Court of Appeals drafted a very long and detailed opinion regarding the Michigan Medical Marijuana Act.  Relative to the law’s uncertainty, the court had this to say:

“The problem, however, is that the MMMA is inartfully drafted and, unfortunately, has created much confusion regarding the circumstances under which an individual may use marijuana without fear of prosecution. Some sections of the MMMA are in conflict with others, and many provisions in the MMMA are in conflict with other statutes, especially the Public Health Code. Further, individuals who do not have a serious medical condition are attempting to use the MMMA to flout the clear prohibitions of the Public Health Code and engage in recreational use of marijuana. Law enforcement officers, prosecutors, and trial court judges attempting to enforce both the MMMA and the Public Health Code are hampered by confusing and seemingly contradictory language, while healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.”

2011 – Federal Government takes harder stance on medical marijuana- the Cole memo.

In a memo to the states again addressing medical marijuana, this 2011 memo from the United States Department of Justice took a much more draconian stance.  In fact, their new memo struck an ominous tone; reading in part as follows;

Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.

2011 – Federal Judge Rules Against Medical Marijuana Patient – Casias v. Wal-Mart, et al.

In this case, the moving party, Joseph Casias, was diagnosed with sinus cancer and an inoperable brain tumor at the age of 17. He tried pain meds to no avail, and his oncologist recommended marijuana to treat his pain. The Michigan Department of Community Health issued Plaintiff a registry card on June 15, 2009, and, in accordance with state law, he began using marijuana for pain management purposes. He was an employee of Wal-Mart’s Battle Creek, Michigan store from November 1, 2004 until November 24, 2009, when Plaintiff was terminated from WalMart after he tested positive for marijuana, in violation of the company’s drug use policy.  The federal court ruled that Walmart could properly discharge him.  The court found that that the MMMA does not protect Plaintiff’s right to bring a wrongful termination action because the MMMA does not regulate private employment.

Incidentally, the Michigan court of Appeals said that he could nevertheless collect unemployment in the case of Braska v. Challenge Manufacturing, 307 Mich.App. 340 (2014).

2011 – Court of Appeals rules against Medical Marijuana dispensaries – State v. McQueen.

In this case, Defendants Brandon McQueen and Matthew Taylor owned and operated C.A., LLC, formerly known as Compassionate Apothecary, LLC, a members-only medical marijuana dispensary located in Isabella County.  The state came in and wanted to shut them down, on various theories, including nuisance. The court held:

(1) Dispensary had “possession” of marijuana for purposes Michigan’s criminal laws, as set forth in the public health code; (2) Section 8 medical use presumption was rebutted by evidence that dispensary was not acting within or in accordance to MMMA. (3) Medical use of marijuana does not include the delivery, transfer or sale of marijuana, and (4) Dispensary was not entitled to immunity under for persons who assist a registered qualifying patient with “using or administering” marijuana.

2011 – Law enforcement cracks down on dispensaries.

The McQueen case emboldened law enforcement, and opened the door to a massive crack-down on the dispensaries that had popped up around the state.  These dispensaries were now being busted.  These busts were in part due to the tension between state and federal law.  There was also a general tension with law enforcement who themselves didn’t really understand the law or accept the legal use of marijuana.  Consequently, dispensaries were being shut down, and dispensary owners were sometimes being prosecuted as drug dealers. The McQueen ruling in August 2011 set precedent for law enforcement to lawfully conduct raids on dispensaries. These busts had a chilling effect on the business of medical marijuana, and naturally led to a precipitous decline in the number of dispensaries across the state. Law enforcement would make arrests based on their perceived mishandling of the medical marijuana or technical violations of the law, such as when they believed the marijuana was not being grown in a “locked facility.”

2012 – Marijuana zero tolerance intoxicated driving policy not applicable to medical marijuana patients – People v. Koon.

Because it is unlawful in Michigan to have any amount of marijuana (THC) in your system when you operate a motor vehicle in Michigan, a MMMA patient could theoretically be charged for drunk driving even when properly medicating with marijuana.  However, in the case of People vs. Koon, the Michigan Supreme Court ruled that properly licensed medical marijuana patients could not be prosecuted under the zero tolerance OWI law.  Specifically, the court indicated:

The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marihuana in his or her system but is not otherwise under the influence of marihuana inescapably conflicts with MCL 257.625(8), which prohibits a person from driving with any amount of marihuana in her or system.  And under the MMMA, all other acts and parts of acts inconsistent with the MMMA do not apply to the medical use of marihuana. Consequently, MCL 257.625(8) does not apply to the medical use of marihuana.

This meant that in order for medical marijuana drivers to be prosecuted for intoxicated driving the state would have to prove that the marijuana consumed substantially lessened their ability to drive

2013 – Michigan Supreme Court rules against medical marijuana dispensaries; State v. McQueen.

This was the appeal from the Michigan Court of Appeals and involved the state action against a medical-marijuana dispensary, seeking to enjoin dispensary’s sale of marijuana as a public nuisance.   The Michigan Supreme Court held:

(1) dispensary was not immune from State’s public nuisance claim; (2) insulation provision of former version of Medical Marijuana Act (MMMA) did not apply to dispensary’s actions; and (3) affirmative defense for prosecutions did not apply to action.

2016 Michigan State Supreme Court says no to collective grow operations – People v. Bylsma.

In this case, the defendant charged with in this prosecution for the manufacture of marijuana in violation of the Public Health Code, MCL 333.7401(1) and (2)(d). He leased commercial warehouse space in Grand Rapids and equipped that space both to grow marijuana for his two patients and to allow him to assist other qualifying patients and primary caregivers in growing marijuana. A single lock secured the warehouse space, which was divided into three separate booths. The booths were latched but not locked, and defendant moved plants between the booths depending on the growing conditions that each plant required. Defendant spent 5 to 7 days each week at the warehouse space, where he oversaw and cared for the plants’ growth. Sometimes, defendant’s brother would help defendant care for and cultivate the plants. Defendant had access to the warehouse space at all times, although defense counsel acknowledged that two others also had access to the space. The court ruled that:

(1) under the MMMA, possession of marijuana occurs when a person exercises dominion and control over it; (2) defendant had dominion and control over all 88 marijuana plants in warehouse unit, and thus defendant possessed more than the 24 plants permitted by immunity provision of the MMMA; but (3) defendant need not satisfy the possession limits of immunity provision of the MMMA in order to assert affirmative defense to controlled substance possession charge for medical marijuana use.

2016 – Governor Snyder signs laws clarifying and expanding medical marijuana in Michigan.

In part, to help answer all the questions raised by the history set forth above, and to answer many other questions as well, earlier this year our legislature passed two new Acts and also, amended the original MMMA.  The first package of laws that seeks to clarify the dispensary issue is called the “Medical Marihuana Facilities Licensing Act,” and is found at Michigan Compiled Laws at 333.27101, et. seq.   This act establishes a licensing and regulation framework for medical marihuana growers, processors, secure transporters, provisioning centers, and safety compliance facilities. In drafting these provisions, Michigan’s lawmakers reviewed and modeled the regulatory framework and structure set forth for alcohol under the Michigan Liquor Control Code and that related to gaming, as set forth under the Michigan Gaming Control and Revenue Act.

There is also another series of laws set forth in the Michigan Medical Marihuana Tracking Act, as set forth in Michigan Compiled Laws 333.27901, et. seq.  This Act establishes a “seed-to-sale” system to track marihuana that is grown, processed, transferred, stored, or disposed of under the Medical Marihuana Facilities Licensing Act.

Time will tell how the federal government responds to these new Acts.  Based on prior experience one would expect that the United States Department of Justice will issue yet another memorandum.  There is more uncertainty than ever now that we have a new President who may take a much tougher stance on these issues, and may the Trump administration’s new Attorney General, Jeffery Sessions.