Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Medical Marijuana

Michigan Court of Appeals Says Probationers Have a Right to Use Medical Marijuana on Probation

On February 11, 2021, the Michigan Court of Appeals held in People v Thue, No. 353978, 2021 WL 519716, at *1 (Mich Ct App, February 11, 2021), that probationers who held medical marijuana permits had the right to use their medical marijuana , while on probation.  This decision resolved a conflict with various courts around the state.   Mr. Thue unsuccessfully asked a Grand Traverse District Court to modify his probation to allow him to use medical marijuana while on probation.  The District  Court denied the motion to modify his probation and Mr. Thue applied for permission to appeal to the Circuit Court which upheld the condition.  Mr. Thue then took the appeal to the Court of Appeals which reversed.

It is important to note that medical marijuana patients have the burden of showing that they remain in compliance with the MMMA to avoid facing possible issues on probation. If you are a medical marijuana patient, this means you must pay close attention to the requirements to qualify for Section 4 immunity under the MMMA. If you engage in conduct that does not fall within the protection of Section 4 immunity, you could still face a probation violation.
Thue offers powerful protection for medical marijuana patients to continue to use medical marijuana while on bond for a pending charge. The Court’s rationale certainly seems to suggest that the MMMA also protects a medical marijuana patient’s ability to use medical marijuana while on bond for a pending criminal offense, but the issue is not officially decided and many judges will be resistant to the argument.  Additionally, Michigan’s recreational marijuana law, the Michigan Regulation and Taxation of Marihuana Act (“MRTMA”), shares virtually all of the same statutory language that the Court of Appeals relied upon to reach its decision in the Thue case, there remains a question of whether adults over the age of 21 in Michigan can be forced to stop using recreational marijuana while on bond or probation.  Section 5 of the MRTMA provides that adults age 21 and up in Michigan cannot be subject to “penalty in any matter” for engaging in conduct that is protected by the MRTMA. This is the same language that the Court of Appeals relied upon from the MMMA in reaching its decision in Thue. Further, Section 4 of the MRTMA has the same kind of preemption language that appears in the MMMA. As a result, it would appear that the Thue opinion opens the door for an argument that a court may not prohibit MRTMA-compliant marijuana activity as a condition of probation.
Probationers can legally use marijuana on probation today. The State has until April 8
th 2021 to appeal the ruling to the Supreme Court.

Dearborn Disqualification Upheld

I won a nice win today in the Court of Appeals in Dearborn v Navoy, Court of Appeals No. 311069. Dearborn District Judge Somers has been an outspoken critic of medical marijuana and actually wrote an opinion declaring the law unconstitutional. Despite his repeated comments about his disbelief of the legitimacy of medical marijuana, his belief that that it is the “devil’s weed,” and his long monologues against the drugs, he refused to remove himself from Dearborn v Navoy. The District Chief Judge removed him, the Circuit Court affirmed, and now the Court of Appeals firmed in the linked opinion. While not clear from the opinion, Mr. Navoy has a medical marijuana card. We are placed that our client will have an opportunity to present the matter to a judge who has not staked out the position that Judge Somers has taken.
I also want to give a public nod to my colleague and friend Neil Rockind for his brilliant work in the case. He is a truly great co-counsel.

People v Koon reversed. Mich SCt Holds that Medical Marijuana patients can drive as long as they aren't actually intoxicated.

Reversing the Michigan Court of Appeals, the Michigan Supreme Court has held that Medical Marijuana patients can drive cars with a detectable presence of THC in their system as long as they are not actually impaired. The Court of Appeals had ruled that Michigan’s zero tolerance policy on “drugged driving” controlled. This meant that the presence of active THC was sufficient to convict the defendant.

The Supreme Court reversed holding that the protections under Section 4 of the Medical Marijuana Act controlled. The Court specifically noted that Section 7 of the Act provided that nothing in the Act would prohibit the prosecution of actually driving while impaired. The Supreme Court suggested that the Legislature adopt a standard analogous to Washington’s which prohibited 5 ng/ml of THC in a person’s system.
People v Koon, Supreme Court No. 145259

Michigan Supreme Court Rules Patient-to-Patient Transfers Are Not Protected

The Supreme Court ruled in the McQueen case that patient-to-patient transfers are not covered by the medical marijuana laws. The Court stated that while patient-to-patient transfers were permitted, the donor patient was not operating with a bona fide medical purpose when giving/providing the medicine to another patient because it didn’t help the medical state of the donor patient. Here is a nice summary of the holding.

Michigan Supreme Court Hears Orals on McQueen Case on Medical Marijuana - Updated With Video Links

This is an updated version of my story about the October 11th oral arguments on two important medical marijuana cases.
On October 11th, the Michigan Supreme Court will oral arguments on the McQueen case. The issue will focus on whether individuals can act as brokers between patients and caregivers.
Click here for Ms. Chartier’s brief.
The Court will also hear oral arguments on People v Blysma. Blysma is another medical marijuana case. In Blysma the question is whether caregivers can share growing facilities and what protection they need to build into the growing facility to protect the respective caregivers from each other.
Update: Click here for more details on this argument. Click here for the unedited video footage on McQueen. Click here for the unedited video footage on Blysma.

No Clear Winner in Yesterday's Debate: (No, I Don't Mean Biden & Ryan)

Yesterday, the Michigan Supreme Court was hearing oral arguments on People v McQueen and People v Blysma dealing with the contours of Michigan’s Medical Marijuana law. So far, it sounds like the “debate” between Mary Chartier (and Bruce Block) and the Michigan Attorney General’s Office was a coin toss. The only report out so far sounds like it was close. At least no one is being marked down incivility. Stay tuned.

Court of Appeals Invalidates Patient-to-Patient Sales Under Medical Marijuana Act

Narrowly construing Michigan’s Medical Marijuana Act, the Court of Appeals just ruled that patient-to-patient transfers are not permitted. Isabella County Prosecutor v McQueen, Court of Appeals No. 108238. While I disagree with the ruling, I respect Isabella County’s decision to bring the case as a civil suit rather than a criminal prosecution. I seriously disagree with the county prosecutors who have made decision to proceed using criminal prosecutions against ambiguous conduct done under the color of a medical marijuana license.

A Divided Michigan Court of Appeals Narrowly Defines a "Locked Enclosure" Requirement for Growing Medical Marijuana

In People v King a two to one panel of the Court of Appeals narrowly defined what a locked enclosure was in a manufacturing of marijuana case. Judge Fitzgerald dissented.

Mr. King had a caregiver card and was was growing medical marijuana in his home. He grew it in two places. The first was an outdoor fenced area which was six foot tall and locked with a chain and padlock. There was no roof so someone could climb over the fence. It may have also been possible to left the fence up and come underneath. The other area was his locked home, but the backdoor lock was missing a nob and someone could open the door by directly manipulating the latch. The Court of Appeals ruled that neither facility constituted a locked enclosure within the meaning of the law. Judge Fitzgerald launched a strong dissent.

The problem with Michigan’s Medical Marijuana law is that if the police can find a minor variance form the law, they get to charge you with a felony and forfeit your assets. If a doctor’s office, a restaurant, or other licensed establishment had a similar violation, they would receive a ticket and a fine their first time up to the plate. Law enforcement and prosecutors don’t like the law and are looking for ways to evade it. Just last week,
Royal Oak passed a local ordinance restricting it. I suspect what their real hope is that they can stop Medical Marijuana from taking root in Michigan for five years. At that point, the Legislature can overturn the People’s referendum.

Right now, with a law degree and significant criminal training, I would be afraid to grow or use medical marijuana. With all my legal training, I could not guarantee that prosecutor or a police officer could not find some technical violation on one day of my life and charge me with a felony.

My advice right now is:

  • Grow the marijuana in a separately locked room;
  • Use a digital locking pad on the door so that the key would not be accessible to a non-caregiver;
  • Be strict about the quantities that are maintained;
  • Check your local zoning laws;
  • Keep your original card on you if the product leaves the home;
  • Place a xerox of the license on the outside of the door;
  • Encrypt your digital data with TrueCrypt picking a good password. The police will seize your computers and attempt to read your patient information and harass them;

Keep copies of all your records off premise. If the police raid your home, they will seize all your records. All of this, however, is shooting at a moving target. No one can give advice with absolute certainty and this advice may prove dated before I hit the “publish” button.

AMA Supports Reclassification of Marijuana

The American Medical Association (“AMA”) urged the U.S. Government to change its classification from being a dangerous drug with no medically accepted used. Since 1997, the AMA has argued that marijuana should remain classified as a schedule I narcotic. This change of position does not mean that the AMA regards marijuana as a safe and effective treatment, but it would clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug. "Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis," said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was "insufficient to satisfy the current standards for a prescription drug product." Click here to view the article from the Los Angeles Times.