Ingham County 'Hornet's Nest' Insight into the Medical Marihuana Act

By Roberta Gubbins Legal News The Medical Marihuana Act was the topic of discussion at the Ingham County Bar Association Criminal Law Section conducted at Gone Wired Café in Lansing last month. Ken Stecker of the Prosecuting Attorney's Association of Michigan, opened the discussion with the comment that "the law is a hornet's nest." For example, the definition of marihuana in the law is "usable" marihuana, which does not include the roots, stalk or seeds of the plant. The big question, he said is "How do you obtain it?" He pointed out several other issues with the law such as: 1. Whether one qualifying patient can transfer marihuana to another? "This is a huge issue," he said, "(the law) doesn't give an individual the right to sell marihuana in the state for any purpose but the definition of 'medical use' is quite broad so in a recent case in Isabella county, two individuals in their business enterprise received marihuana from care givers with the authority of their designated patients to sell that marihuana to other marijuana patients. They had about 200 patients. The court found that the patient to patient transfers fell soundly within the medical use of marihuana as defined by the act. The case, State of Michigan v McQueen, is on appeal." 2. How is the affirmative defense asserted? "That is the $64,000 question. The cases are all over the map. You are entitled to an evidentiary hearing on the affirmative defense but in the People v Kolanek, the court held '...defendant's failure to provide sufficient proofs pursuant to his motion to dismiss does not bar him from asserting the Section 8 defense at trial nor from submitting additional proofs in support of the defense at that time.'" 3. What constitutes a 'closed locked facility?' "This is a definition that has two parts, one, an area equipped with locks, and, two, the space has a security device--what is a security device? People v King is at the court of appeals on this issue. The circuit court ruled that since the defendant was present at the time of the arrival of the police--the plants were inside the house--he was therefore acting as a security device, limiting access to the plants." 4. What constitutes a public place? 5. Is a visiting qualifying patient allowed to have marihuana in our state? "Yes, as long as it is within the confines of the law because we allow for reciprocity, we are only one of four states that allow that." 6. Can an employer fire an employee for using medical marihuana? "The act provides that nothing in the act shall be construed to require an employer to accommodate the ingestion of marijuana at the work place." 7. What is the process to revoke a patient's card? 8. Can law enforcement confirm application presented to them is valid? "No, they can't. Not by lien, they can do it only through search warrants. The Michigan Department of Community Mental Health does not honor subpoena's. They only honor search warrants." 9. When do you have to be a patient if raising the affirmative defense? "In Kolanek, the court, looking at the affirmative defense section of the statute, held that the words 'has stated' meant that the person must have a physician's opinion regarding the use of medical marihuana before arrest." Published: Wed, Feb 9, 2011

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