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Marijuana Possession in Michigan – It Can’t be Medical After the Fact…or Can It?

Criminal Charges for Possession of Marijuana seem to be occurring at about the same rate they always have, at least from the perspective of my Practice. Since Medical Marijuana was legalized in Michigan over a year ago, I have crossed paths with it, but not in a way that has been a legal defense to a Criminal Charge.

A person need only read the newspaper to learn that pretty much everyone is still a bit confused about the exact application of the new Medical Marijuana Laws. A few cases have been brought at the District Court level, and some aspect of the Medical Marijuana Laws has been raised as a Defense to those Charges, but nothing really decisive or guiding has yet to come from any of Michigan’s Appellate Courts. Recently, some cities have begun prohibiting or restricting marijuana dispensaries. The final outcome to all of this is still unsettled, and any predictions are probably still premature. A recent e-mail I received from one of the Principals of the Michigan Medical Marijuana Association outlined the contradictory positions of 2 State Agencies regarding when an applicant for a Medical Marijuana card is considered “legal.”

medical_marijuana_prescription.jpgThe The Michigan Medical Marijuana Law itself is simple, but not clear enough to prevent these contradictory positions. This spells potential trouble for anyone caught with Marijuana who does not have a Medical Marijuana Card, even though the law clearly states that a card shall be issued within 15 days of a valid application being submitted. It further states that if no card is actually issued within 20 days form the date of the submission of a valid application, that application shall be deemed “granted.”

It would appear that if a Card is subsequently issued, the 20 day period will be easy enough to define. However, in cases where an application is rejected for one reason or another, such as a typo or missing piece of information, and even if that information is later provided and the Card issued, it is arguable that the 20 day period did not apply prior to the submission of the corrected application. I would expect that to be the position of the Police and the Prosecutors.

From the perspective of a Criminal Lawyer, having the proper certification to dispense, grow, or possess Marijuana is seen as a potential defense to a related Criminal Charge. I say “potential defense” because the certification or permission granted by the Medical Marijuana Laws are not unlimited. A person cannot start an outdoor, 100-acre Marijuana farm, and neither can a person drive around with 10 pounds of Marijuana in their car. There are limits to what is allowed under the new law, and even if the exact edges of those limits have not yet been clearly defined, certain things obviously fall well outside of them.

This means that if a person has submitted an application, and not heard anything for 2 months, and that person is subsequently charged with Criminal Possession, he or she still needs to prove his or her application was “valid.” To make matters more confusing, appeals regarding the rejection of these applications can ONLY be heard in the Circuit Court for the County of Ingham. Therefore, the person cannot go to his or her District Judge, where the Criminal Case is pending, and seek from that Judge a ruling on the validity of their application. And it is unclear how an application which has not been approved (or rejected) is to be appealed, although it seems relatively certain that such an appeal should be filed in the Ingam County Circuit Court.

Moreover, appeals cost money, and lots of it. I generally do not handle appeals anyway, but they are time consuming and expensive. And in if we’re talking about someone facing a Possession charge who had submitted an application that has not yet been granted or rejected, paying for this appeal while their Criminal case is pending imposes a very expensive hardship.

Simply having applied for a Medical Marijuana Card does not prevent a person from receiving a Possession charge, at least not until the application has been granted, or 20 days are up, whichever comes first.

However, section 8 of the new Medical Marijuana law does provide what are called “Affirmative Defenses” to a charge of Possession. A reading of this provision seems to indicate that even after a person has been charged with Possession, if they subsequently apply and are otherwise qualified (and were, at the time of the Arrest or Citation) for Medical Marijuana, they can fight the charge retroactively. This would mean that this type of a Defense could, and should be brought up in front of the Judge before whom a Possession case is pending.

Another e-mail I received from a Michigan Attorney on the other side of the State indicates he has had some success in using this provision as a Defense in Possession cases, with the result being a dismissal of the charges. I have asked him for more information on his experience, and will post my findings at a later date.

This would tend to indicate that if a person has a condition that would qualify them to get a Medical Marijuana Card, and even if they had not even applied for one at the time of their Arrest of Citation, they can still use that condition as a Defense to a Possession charge. Moreover, it does not appear that Section 8 requires that they subsequently apply for a Card. How this will all shake out, at least here in the Detroit-area, is far from settled.

I’m still waiting for the call from someone who claims to have been wrongfully charged with Possession of Marijuana because they had already been issued a Card at the time of their arrest, or in which the 20 days had passed without a their application having been rejected. As this article shows, the closest I’ve come so far is someone who had simply applied, but not yet been approved for Medical Marijuana at the time of their Arrest, and was not within the time frame imposed on the State under the new Law.

We have yet to see, at least in my experience, how Section 8 will fair as an “Affirmative Defense” to a Possession charge were the Client can show that, at the time of his or her Arrest, they had a “qualifying” medical condition and can show through medical evidence that their Possession was covered under the Medical Marijuana Laws, even if they hadn’t applied for a Card at the time of the Charge, or thereafter, for that matter.

Stay tuned. This issue will certainly come up again (and again) in the near future.

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