WE NEED OPEN DEBATE ABOUT THE LEGALIZATION OF MARIHUANA
Failure to engage in the debate hinders our hunt for a statute’s intended purpose and generally stifles the formation of sound legal principles. If we all gently withdrew our voices from the arena of competing ideas, then mistakes would go unchallenged, and the process of correction could suffer nearly insurmountable setbacks.[8]
On November 4, 2008, the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq., was passed by referendum and went into effect soon thereafter. It is without question that this act has no effect on federal prohibitions of the possession or consumption of marijuana.1[8]
DO YOUR ELECTED OFFICALS HAVE THE COURAGE TO OPENLY DEBATE LEGALIZATION OF POT?
I have no doubt that in the minds of some voters in this state, legalizing marijuana would be good public policy. Others who approved this act were under the impression that the act’s specific purpose was limited to permitting the use of medical marijuana by registered patients with debilitating medical conditions. Still others voted against this change in the law. Whether the decriminalization of medical marijuana is a good or bad idea for this state is a question of public policy for our state legislators, the executive branch, and the citizenry to ponder. It is not for the courts to set public policy.[8]
SHOULD CANNABIS BE LEGALIZED?
…U.S. data … statistics were derived in a setting that spends an estimated $10 billion each year enforcing marijuana laws. Research funded by the U.S. government also clearly demonstrates that, even as federal funding for anti-drug efforts increased by more than 600 per cent over the last several decades, marijuana's potency has nevertheless increased by 145 per cent since 1990, and its price has declined 58 per cent. For many of the above reasons, as well as the potential to generate a massive amount of tax revenue, a 2004 Fraser Institute report called for the outright legalization of cannabis, ….[5]
(T)he MMMA does not create any sort of affirmative right under state law to use or
possess marijuana. That drug remains a Schedule 1 substance under the Public Health Code, MCL 333.7212(1)(c), meaning that “the substance has a high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision,” MCL 333.7211. The MMMA does not repeal any drug laws contained in the Public Health Code, and all persons under this state’s jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).[8]
NOW A WORD FROM PAT ROBERTSON
"I'm not exactly for the use of drugs, don't get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kinda thing it's just, it's costing us a fortune and it's ruining young people. Young people go into prisons, they go in as youths and come out as hardened criminals. That's not a good thing."[6]
Michigan's two-year-old law allowing the use of marijuana for medical purposes is leaving communities, courts, patients and police locked in disputes over what is legal and what isn't.[3]
"We're locking up people that have taken a couple puffs of marijuana and next thing you know, they've got 10 years with mandatory sentences. These judges just say, they throw up their hands and say 'nothing we can do with these mandatory sentences.' We've got to take a look at what we're considering crimes and that's one of 'em."[6]
Advocates of medical marijuana say nothing in the law prohibits dispensaries and collective growing facilities, and that communities are ignoring the will of Michigan voters by cracking down on those businesses. Advocates of the law say it's broad by design to protect a wide range of activities.[3]
Michigan Court of Appeals Judge Peter O'Connell wrote in a September opinion that the law is susceptible to multiple interpretations and that reading it "carelessly or out of context could result in jail or prison time for many of our citizens." He urged state officials to clear up contradictions and vague areas in the voter-approved law.[3]
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.[8]
MARIJUANNA USE VIOLATED FEDERAL LAW
The Controlled Substances Act, 21 USC 801 et seq., classifies marijuana as a
Schedule 1 substance, 21 USC 812(c), meaning that Congress recognizes no acceptable medical uses for it, and its possession is generally prohibited. See Gonzales v Raich, 545 US 1, 27; 125 S Ct 2195; 162 L Ed 2d 1 (2005); United States v Oakland Cannabis Buyers’ Co-op, 532 US 483, 490; 121 S Ct 1711; 149 L Ed 2d 722 (2001). As a federal court in Michigan recently recognized, “It is indisputable that state medical-marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana.” United States v Hicks, ___ F Supp 2d ___ (No. 07-20176, ED Mich, 2010); 2010 WL 2724286 at *3, citing Gonzales, 545 US at 29 (“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”); United States v $186,416.00 in US Currency, 590 F3d
942, 945 (CA 9, 2010) (“The federal government has not recognized a legitimate medical use for marijuana, however, and there is no exception for medical marijuana distribution or possession under the federal Controlled Substances Act”); United States v Scarmazzo, 554 F Supp 2d 1102, 1109 (ED Cal, 2008) (“Federal law prohibiting the sale of marijuana is valid, despite any state law suggesting medical necessity for marijuana”); United States v Landa, 281 F Supp 2d 1139, 1145 (ND Cal, 2003) (“our Congress has flatly outlawed marijuana in this country, nationwide, including for medicinal purposes.”). Accordingly, the MMMA has no effect on federal law, and the possession of marijuana remains illegal under federal law, even if it is possessed for medicinal purposes in accordance with state law. Hicks, 2010 WL 2724286 at *4, citing Gonzales, 545 US at 27 (“The CSA designates marijuana as contraband for any purpose”).[8]
----
O’Connell commented in the appeal of a case namedPeople v. Redden
Several Issues were discussed in this case:
*Whether a "registry identification card" is required for a § 8 affirmative defense under the Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.);
*MCL 333.26428; People v. Stone Transp., Inc.; People v. Williams; Welch Foods, Inc. v. Attorney Gen.;
*Whether the trial court properly reversed the bindover decision; People v. Henderson; People v. Glass (After Remand); People v. Waltonen; People v. King; Whether a "bona fide physician-patient relationship" existed; MCL 333.26428(a)(1); People v. Peals;
*Whether the amount of marijuana defendants possessed was "reasonable" under the statute; MCL 333.26428(a)(2);
*Whether the marijuana was "being used for medical purposes"; MCL 333.26428(a)(3); *Whether defendants suffered from "serious or debilitating medical conditions";
*MCL 333.26427(b)(5)
This is a precent opinion of -Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden , e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
THE COURTS CONCLUSION
The court held that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4 and the trial court properly reversed the district court's dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants for each defendant and reinstated the charges where there was evidence that the defense was not complete, and there were colorable issues for the trier of fact.
HOW DID THIS CASE START
This case arose from the execution of a search warrant at defendants' residence,
DEFENDANTS HAD A LOT OF DOPE
which resulted in the discovery of approximately 1 1/2 ounces of marijuana and 21 marijuana plants.
BUT WE HAVE A MEDICAL CARD?
Defendants each turned over documents regarding their use of marijuana for medical purposes.
WHAT IS THE MMMA?
The MMMA went into effect on December 4, 2008, but, according to officer W, the state of Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan Department of Community Health issued medical marijuana registry identification cards to each defendant on April 20, 2009, but this was after the search in this case took place.
DR. SAID THESE SICK PEOPLE NEED HELP, NAUSEA
In support of the defense, they presented testimony from Dr. E, who signed the medical-marijuana authorization. Regarding defendant-R, E concluded that he had a debilitating condition that caused pain, satisfying the MMMA. Regarding defendant-C, E concluded that she suffered from nausea. According to E, each defendant was using other narcotics for their conditions, and he opined that access to marijuana would give them the opportunity to wean themselves off of those narcotics.
TWO PREVIOUS CONVICTIONS TO DISTRIBUTE
The parties stipulated that defendant-R had two previous convictions for possession with intent to distribute marijuana. As part of the preliminary examination, defendants asserted the affirmative defense contained in § 8 of the MMMA. The plain language of § 8 does not place any restriction on defendants' raising of the affirmative defense.
DEFENDANT DID NOT HAVE A CARD
Nevertheless, the prosecution argued that the affirmative defense under § 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of § 4. Because of the differing levels of protection in §§ 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4.
WAS THERE REAlLY A DOCTOR PATIENT RELATIONSHIP HERE
As to the trial court reversing the district court's dismissal of charges and reinstating them, the court found that there were colorable issues concerning whether a bona fide physician-patient relationship existed,
WAS THE AMOUNT OF DOPE REASONABLE FOR A SICK PERSON
whether the amount of marijuana defendants possessed was reasonable under the statute,
WAS THE DOPE BEING USED FOR MEDICAL PURPOSES
whether the marijuana in question was being used for medical purposes, and whether defendants suffered from serious or debilitating medical conditions.
COURT OF APPEALS UPHELD THE LOWER COURT
Affirmed. [7]
-----
FEDERALLIES WANT TO NIP MICHIGANS BUD.
Federal agents want Michigan to turn over medical marijuana records as part of an investigation in the Lansing area, a sign that voter approval won't stop federal authorities from enforcing their drug laws.[1]
SHOULD THE FEDERAL LAW BE CHANGED?
..there is clear consensus in the medical and scientific community that cannabis is substantially less harmful than alcohol and tobacco. [5]
MICHIGAN VOTERS SAID WE WANT MARIJUANNA
Michigan voters agreed in 2008 to legalize the use of marijuana in treating some health problems.[1]
FED’S SAY WE DON’T CARE MICHIGAN
But "the cultivation, possession and distribution of marijuana remains illegal under federal law," Assistant U.S. Attorney John Bruha said in a court filing last week.[1]
FEDS WE WANT THE RECORDS MICHIGAN COLLECTED
The U.S. attorney's office has asked a judge to order the Department of Community Health to comply with a subpoena for records of seven people with medical marijuana or marijuana caregiver cards.[1]
MICHIGAN PROMISED THE RECORDS WOULD NOT BE GIVEN OUT
The state has been resisting turning over the information because of a privacy provision in Michigan law, Bruha said. No names or identifying information about the seven are included in court documents, nor are details about the Drug Enforcement Administration's investigation.[1]
FEDS INVADING RIGHTS OF 14 STATES
Michigan isn't alone in trying to sort out hazy medical marijuana laws. Fourteen other states have similar statutes — prompting raids and debate over local regulations in California, disputes over which doctors can recommend pot in Colorado and fights over proposed regulations in New Jersey.[4]
GREEN CARD ENFORCEMENT
Some police agencies want a better system to verify the authenticity of authorization cards. Physicians must certify patients would benefit from the pain-reducing aspects of marijuana, but it's left to the patients to register with the state and to self-regulate the amount and quality of the drug they take.[4]
"There is absolutely no connection to medicine and what's going on with medical marijuana right now," said Oakland County Sheriff Mike Bouchard. "You don't have a required patient-doctor relationship. You don't go to a state-licensed, inspected and regulated facility like a pharmacy. ... It's creating already a lot of problems and a lot of misconceptions."[4]
DEA WE ARE TARGETING PEOPLE THAT ARE AMBIGUOUS.
DEA spokesman Rich Isaacson in Detroit wouldn't comment about the case Monday but said agents generally are "not targeting people that are unambiguously following the state medical marijuana law."[1]
WE ARE IN NO HURRY
"The DEA targets large scale drug trafficking organizations and does not expend its resources on individuals possessing 'user amount' quantities of illegal drugs," he said.
The federal government apparently hasn't been in a rush to get the information: The subpoena was given to the Department of Community Health in June.[1]
45,000 POTENTIAL PERPS GAVE THE GOV’T THE NAME OF THEIR DRUG OF CHOICE ,THEIR NAME ADDRESS AND PHONE NUMBER. ALL THAT’S LEFT IS AN ARREST APPOINTMENT.
More than 45,000 people in Michigan are registered to use marijuana to ease the symptoms of cancer and other health problems. They can have up to 2 1/2 ounces of ready-to-use pot and up to 12 plants kept in an enclosed, locked facility. They could also choose to have a registered caregiver grow the drug for them.[1]
Michigan's more than 45,000 licensed medical marijuana patients can possess up to 2½ ounces of usable marijuana and have up to 12 plants kept in an enclosed, locked facility — or have a registered caregiver grow the drug for them.[4]
A MAZE
Law enforcement officials have panned the law as poorly written, and an appeals court judge has called it a "maze." [1]
Many patients who have the state's OK to use marijuana to ease their pain from conditions ranging from cancer to Crohn's disease have been arrested and others have been fired because of different interpretations of the law approved by Michigan voters in late 2008. Courts face a rash of medical marijuana cases, with the law raising so many questions one state appeals court judge described reading it as a "maze."[3]
CITIZENS TURN TO HIGHER LEARNING
A class on legal issues is a staple at Med Grow Cannabis College in Southfield, one of the few medical marijuana trade schools in the nation. Nick Tennant, who last year opened up the trade school in suburban Detroit, said the goal of the class is to provide students some clarity about a law that has gray areas.[3]
"A lot of people want definitive answers," Tennant, 25, said. "It's just hard, because sometimes the attorneys can't really give a definitive answer. They can give almost a 'best practices, here's how you stay out of trouble, don't raise your risk tolerance in this gray area' type of thing."[3]
The school also provides students with instruction on the medical and horticultural aspects of growing pot for medicinal use.[3]
"We don't want the people and the public to be afraid of us or to think we're drug dealers, because that's really a popular misconception as well. We're here to help," said Travis Williams, a 38-year-old Detroiter who took classes at the school and now provides marijuana he grows himself to patients.[3]
HERE IS A VENDOR WITH A Mission Statement:
We are here to help qualifying patients obtain their medical marijuana patient certification through the state of Michigan. Our doctors (M.D.) are dedicated to assisting individuals on their process toward becoming a medical marijuana patient. Our licensed Michigan physicians are in full compliance with the Michigan Medical Marijuana Certification guidelines.[4]
Upon the physician’s review and approval, qualified patients will receive written recommendations and a signed State Certification Form that will allow them to apply for the Michigan Medical Marijuana Identification Card. [4]
ACLU SUING CITIES THAT ARE BLOCKING THE DOPERS
The American Civil Liberties Union is suing cities over anti-marijuana policies.[1]
Local governments are jumping in and passing their own ordinances, mostly trying to limit, ban or regulate a wave of businesses popping up to grow and sell the drug.[3]
The American Civil Liberties Union has sued the southeast Michigan cities of Livonia, Birmingham and Bloomfield Hills and joined a lawsuit against the west Michigan city of Wyoming over policies it says effectively ban the use of medical marijuana.
Local governments counter that they are trying to make sure illegal drug dealing and other crimes don't take place in the absence of a clear state law.[3]
CIVIL UNREST
Many of the clashes are between medical marijuana advocates who say they're acting within the law and police who say they aren't. Adding to the tension is federal law that continues to ban the use and possession of marijuana. Although it won't be a top priority for lawmakers in a state swamped by economic and state government budget problems, Michigan's next Legislature likely will devote some time to clarifying the law[4]
DRUG ENFORCEMENT CAUSES VIOLENCE
This violent reality has emerged as an unintended consequence of a more than a half-century long experiment aimed at reducing illegal drug supply through aggressive law enforcement. Remarkably, despite the U.S. taxpayer spending an estimated $2.5 trillion since America's "War on Drugs" was launched by former president Richard Nixon, drugs remain more available today than at any time in our history, while drug market violence has continued to worsen. A recent international example is the upsurge in drug-related violence in Mexico, which has claimed more than 30,000 lives after Mexican President Felipe Calderon launched a crackdown on the cartels in 2006. [5]
The MMMA does not codify a right to use marijuana; instead, it merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking. In so doing, the MMMA reflects the practical determination of the people of Michigan that, while marijuana is classified as a harmful substance and its use and manufacture should generally be prohibited, law
enforcement resources should not be used to arrest and prosecute those with serious medical conditions who use marijuana for its palliative effects.2[8]
mainstream view that it's nuts to keep busting pot users.[6]
Again, all individuals who possess, use, or manufacture marijuana in this state, including
qualifying patients who have been issued a valid registry identification card and their primary caregivers, are violating the federal Controlled Substances Act and are still subject to arrest and punishment for doing so.[8]
For those who instituted the process of placing the proposal on the
ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana, but also a first step in legalizing marijuana in Michigan. For some citizens who voted for the bill out of empathy for the terminally ill or those suffering from debilitating conditions, it was a vote for a medical process that would help those in need. Unfortunately for all concerned with the implementation of the medical mission, including compassionate-care groups, marijuana growers, marijuana users, marijuana dispensers, police, prosecutors, municipalities, townships, etc., the act has resulted in much confusion. And it has suggested itself to many purely recreational marijuana consumers as a vehicle to aid in their continuing illicit indulgence in that
vice.[8]
Sources-
[1]
http://www.mlive.com/news/index.ssf/2010/12/feds_want_michigan_records_in.html
[2]
Comments in article at;
http://www.mlive.com/news/index.ssf/2010/12/feds_want_michigan_records_in.html
[TRB]
ALL CAP LINES or followed by this cite are from Terry Bankert. http://attorneybankert.com/.
[3]
http://www.bloomberg.com/news/2010-12-22/michigan-s-medical-marijuana-law-shrouded-in-haze.html
[4]
http://www.greenmedicalclinic.com/
[5]
http://www.vancouversun.com/news/Prohibition+marijuana+responsible+much+gang+violence+both+here+elsewhere/4031861/story.html
[6]
http://www.newsworks.org/index.php/homepage-feature/item/9967-pot-and-the-preacher
[7]
Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden
e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
FOR PUBLICATION, September 14, 2010,9:20 a.m.
v No. 295809,Oakland Circuit Court
LC No. 2009-009020-AR
[8] Concurring opinion of juistive O’Connell
Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden
e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
FOR PUBLICATION, September 14, 2010,9:20 a.m.
v No. 295809,Oakland Circuit Court
LC No. 2009-009020-AR Sphere: Related Content
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