Oakland County Circuit Court Judge Colleen A. O'Brien has ruled that the Michigan Medical Marihuana Act (MMMA) provides no protection from prosecution to medical marihuana dispensaries.  Defendant Vlasenko, who operates Modern Age dispensary, is being charged on three counts of delivery of the controlled substance marijuana.  He argued that he should be protected from prosecution because he is a caregiver dispensing marihuana to patients with a medical marihuana card.  The prosecuting attorney filed a motion to prevent him from asserting MMMA affirmative defenses and mentioning medical marihuana at trial.  The Court granted the prosecuting attorney's motion, relying on Section 8 of the MMMA, finding the MMMA provides for a relationship between the  patient and caregiver, and "not the dispensing of marijuana to the world at large."  The Court also determined that while a patient and caregiver may collectively be in possession of marihuana, Modern Age was selling marihuana to "anyone who walks in the door and pays a membership fee."  It should be noted that this decision is very narrowly tailored to its specific and may not be applicable to other situations.  Here, Defendant Vlasenko was selling marihuana, from a dispensary, to undercover police officers, who had not been issued valid medical marihuana cards.

In other Oakland County Circuit Court news, the ACLU has filed a complaint against the City of Birmingham and Bloomfield, claiming their ordinances are invalid, since they prohibit marihuana even for medical purposes.  These complaints were originally filed in Wayne County along with a complaint against the City of Livonia, which has a similar ordinance.  However, Birmingham and Bloomfield were successful in their request to move their cases to Oakland County Circuit Court.  The Wayne County Circuit Court recently ruled that the Livonia ordinance was preempted by the MMMA, however it also held the entire MMMA to be preempted by the Federal Controlled Substances Act.

In the case of State v McQueen, the Court of Appeals has reached a decision regarding the legality of patient to patient sales and the defendants' dispensary operations.  According to the decision published today, in addition to finding patient to patient sales illegal, the Court also opined that under the factual circumstances of this case, the dispensary run by the defendants amounted to a public nuisance.

Our attorneys are carefully analyzing the applications and implications of this case to our clients and we will be available to discuss them with you at your request.

The opinion of the court can be reached at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20110823_C301951_67_301951.OPN.PDF

Attorney General Bill Schuette has issued a press release concerning a proposed City of Kalamazoo charter amendment, which would instruct local police to treat marihuana offenses as the least important violation of law. Attorney General Schuette sent a letter to Governor Rick Snyder indicating that the proposed charter amendment should not be approved because he believes it is in violation of state law and court precedent.  Schuette is concerned that the proposed charter amendment would have the practical impact of police not enforcing state law and the amendment could be challenged in court based on its inconsistencies with state law.  The City of Kalamazoo has adopted a Medical Marihuana Ordinance; however, the proposed amendment to the City charter does not involve that Ordinance.  Instead, the proposed amendment is being initiated by several individuals who have submitted a petition requesting the City to amend its Charter by adding a new section 198.  This new section would identify law enforcement priorities and assign the enforcement of marihuana the lowest priority, as a policy.  The amendment would specifically apply to persons in possession or use of 1 ounce or less of usable marihuana, persons operating a motor vehicle while under the influence of marihuana, and to city police cooperation with other law enforcement agencies regarding marihuana offenses and property seized in connection with them.

Wayne County Circuit Court Judge Wendy Baxter determined that Livonia's zoning ordinance, which prohibits marihuana, even for medical purposes; is preempted by the Michigan Medical Marihuana Act (MMMA).  However, Judge Baxter went on further to determine that the MMMA is preempted by the Controlled Substances Act, Act 21 USCS § 801, et seq (CSA) and the Supremacy Clause of the Constitution.  As a result, Livonia's medical marihuana zoning ordinance is no longer valid; however, there is no need for such an ordinance since Judge Baxter ruled the MMMA has been preempted by federal law.  The ACLU intends to appeal this case.

The Wayne County Circuit Court becomes the third court in Michigan to determine the MMMA is preempted by the CSA, under the supremacy clause.  In June, Midland Circuit Court Judge Lauderbach determined that the MMMA is preempted by the CSA, in a case involving 2 individuals requesting to use marihuana for medical purposes, while on parole.  In April, Dearborn District Court Judge Mark Somers ruled that the MMMA is preempted by the CSA, in a case involving an individual charged with possession of marihuana.

Attorney General Bill Schuette filed a request, in Midland Circuit Court, to join the Midland County Prosecutor's petition to close the Twinn Bridges Compassion Club dispensary in Midland.  The County Prosecutor's request comes almost a month after a June 8^thdecision by Circuit Judge Lauderbach's decision that declared the Michigan Medical Marihuana Act ("MMMA") unconstitutional.  Midland Circuit Court Judge Beale held the hearing today and granted the Attorney General Schuette request to join in the request to close the dispensary.  Schuette further noted that the Michigan Medical Marihuana Act ("MMMA") does not authorize dispensaries and he supports efforts to shut them down.

Earlier this year, the Governor of Arizona filed a complaint in federal court, against the United States Department of Justice seeking a declaratory judgment on the state's medical marihuana act.  The voters of Arizona, like 15 other states and the District of Columbia, have chosen to decriminalize and regulate the medical use of marihuana.  The Governor decided to obtain the judgment based on a letter from the US Attorney in Washington, indicating that state officials administering the Arizona Medical Marihuana Act (AMMA) could face prosecution.  The complaint seeks a declaratory judgment declaring that either state officials who administer the AMMA would be safe from prosecution or that the AMMA act is preempted by federal law.

The American Civil Liberties Union (ACLU) has filed a motion to dismiss the complaint claiming the Court lacks jurisdiction, since the Court cannot issue advisory opinions, and claiming that the matter is unripe, since there is no actual injury.

House Bill No. 4850

This Bill, if passed, would amend Section 4 of the Michigan Medical Marihuana Act ("MMMA"), by eliminating it as a potential defense to any person who transfers marihuana to someone other than his or her designated patient or to a person who acquires medical marihuana from someone other than his or her designated primary caregiver.

House Bill No. 4851

House Bill No. 4851 would amend Section 3 to the Michigan Medical Marihuana Act ("MMMA"), by preventing a physician from providing a written certification for a patient to use medical marihuana, unless the physician has (1) completed a full assessment of the patient's medical history and current medical condition, (2) the physician has treated or consulted with the patient with respect to the patient's debilitating medical condition, for a reason other than the patient's MMMA application, (3) the physician has a reasonable expectation of follow-up care, examination, and treatment of the patient's debilitating medical condition, and (4) if appropriate, the physician has notified the patient's primary care physician of the patient's debilitating medical condition and the physician's certification of medical marihuana to treat that condition.

In addition, the Bill will further define an "enclosed locked facility" as one accessible only by (1) a registered qualifying patient who maintains that facility and has not registered a primary caregiver, or (2) a primary caregiver who maintains that facility to provide medical marihuana to his registered patients.

House Bill No. 4852

This Bill, if approved, would amend Section 7 of the Michigan Medical Marihuana Act ("MMMA") to prohibit persons from cultivating or keeping marihuana plants in a facility where to do so would violate a local zoning ordinance.

House Bill No. 4854

This Bill will amend the "Michigan Penal Code" making it a misdemeanor, punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both, for any person that publicly (a) advertises services of a medical marihuana primary caregiver or (b) offers to sell, transfer, or make available marihuana.

House Bill No. 4856

This Bill will amend the "Michigan Penal Code" and limit how a person can transport or possess medical marihuana in a motor vehicle by requiring the medical marihuana to be located within 1 or more of the following: (a) enclosed in a case, (b) carried in the trunk of the vehicle, or (c) inaccessible from the interior of the vehicle.  A person violating this section is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.

On June 22, 2011, followers of the Michigan Supreme Court docket were treated to not one, but three, orders in medical marihuana related cases.

Known among followers of the Michigan Medical Marihuana Act as the "Dog Kennel case," People v. King brings forth the "enclosed, locked facility" discussion to the Supreme Court.  The  People v. Kolanek, on the other hand, is going to be watched for the Court's interpretation on the timing of eligibility to raise the affirmative defense.

In an unexpected twist, the third order of the day allowed for the Defendants of another infamous case, People v. Redden, to withdraw their appeal to the Supreme Court.  If it had made it to the Court's docket, it was believed to focus on the "bona-fide doctor-patient relationship" issue.

The Supreme Court invited the Attorney General, the Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan to file briefs in both King and Kolanek.

Senate Bill No. 504

On June 21, 2011, eleven Senators introduced a bill that would amend Section 4 of the Michigan Medical Marihuana Act ("MMMA"), to provide that this Section does not exempt from prosecution a transfer of marihuana occurring less than 1,000 feet from a clearly identified church or school, unless the transfer takes place inside the residence of a qualifying patient.

Senate Bill No. 505

This bill would amend Section 6 of the Michigan Medical Marihuana Act ("MMMA"), by prohibiting the issuance of a primary caregiver registry identification card to an individual who has been convicted of a felony.

Senate Bill No. 506

This bill, introduced on June 21, 2011, would add Section 3A to the Michigan Medical Marihuana Act ("MMMA"), and prevents a physician from providing a written certification for a patient to use marihuana for medical purposes, unless the physician has (1) taken a medical history of the patient, (2)  performed a relevant physical examination, (3) reviewed prior treatment and treatment responses, (4) obtained and reviewed relevant diagnostic test results, (5) discussed advantages, disadvantages, alternatives, potential adverse effects, and the expected response to the recommended treatment, (6) provided for monitoring of the patient, (7) created and maintained records for the patient, and (8) notified the patient's primary care physician, if any.  In the event a physician provides written certification without first taking these steps, the registry card would be deemed invalid and provides no defense to criminal prosecution.  In addition, the physician would not be covered by any protections otherwise provided for in the Act.

A Midland County judge has ruled that the Michigan Medical Marihuana Act ("MMMA") impermissibly conflicts with federal law.  The case involved two defendants who were both on probation.  Both defendants had the same attorney, who filed a motion requesting modification of his clients' probation conditions to allow them to engage in medical use of marihuana.  The circuit court determined that neither defendant was permitted to use marihuana, even for medical purposes, and that the MMMA violates the federal Supremacy Clause because it positively conflicts with the federal Controlled Substances Act.  According to the Midland County Daily News, County Prosecutor, Mike Carpenter indicated that he was pleased with the decision, but acknowledged that the decision was only binding in Midland County.