Michigan: Legal Ambiguity Lands Medical Marijuana Users in Court

January 25, 2010 – KALAMAZOO — One had a joint, another a bag. Two others had marijuana plants. They all believed it was legal under the Michigan Medical Marijuana Act, but all four will appear in Southwest Michigan courts in February to defend themselves against criminal charges.

Some of Michigan’s more than 10,000 patients and caregivers registered under the months-old law are ending up in court. Their cases, according to local attorneys, could help to clarify gray areas in the new law.

“It would really be helpful to everyone involved — to patients, to caregivers, to prosecutors, and to defense attorneys — if we had more clarity on the law,” said Carrie Klein, Kalamazoo County’s chief assistant prosecutor. “But that’s why we have higher courts, so those type of questions can be flushed out.”

Prosecutors in Kalamazoo County estimate that of the 1,000 marijuana-possession cases they handle each year, one in 100 involve the Michigan Medical Marijuana Act. Jeff Fink, the county’s prosecuting attorney, said his office has maybe handled 10 to 20 such cases since the law went into effect in April. Prosecutors in St. Joseph County have had two cases. Van Buren and Allegan counties have had none.

“I used to be very frustrated with it,” said Michael Komourn, a defense attorney who has handled several medical marijuana cases. “But now I realize that it was initially written very broadly, and the broad writing actually benefits the patients and the caregivers.”

Komourn, a Southfield attorney, is handling the case of Sean Muntian, the owner of a Three Rivers hydroponics growing supply store who faces felony drug charges. Police found marijuana and plants at his home and business during a raid. Muntian claimed to be a registered caregiver but did not yet have a card.

Confusion over language
Much of the confusion over the medical marijuana act comes from a section on so-called affirmative defenses.

The act clearly states that a patient or caregiver in possession of a state-issued card will not be arrested or prosecuted for drug crimes. It spells out exactly how much usable marijuana a person can possess — 2.5 ounces — and how many plants — 12 per patient — a person may grow.

A later section, however, broadens the definition of a patient to anyone with a medical condition covered under the act or one for which a doctor recommends marijuana for treatment — whether the patient has a card or not. It allows any the amount of marijuana and plants needed to maintain a constant supply of medicine.

“That’s a difficult one,” Klein said of those later provisions. “Whomever came up with that portion of the law wasn’t thinking through the consequences.”

As long as a person is not violating the law directly — like smoking in a public place or possessing marijuana on a school bus, in a prison, at a school or without having a serious or debilitating medical condition — the law can be used as a defense to dismiss drug charges. The person, however, still has to endure arrest and face court hearings.

Those hearings could cost $3,500 or more, said John Targowski, a Kalamazoo-base lawyer who has three cases related to the affirmative defense section.

Facing charges
In one case, a Cass County couple faces up to four years in prison for a felony marijuana cultivation charge after police found 12 plants in their garden. Neither the husband or the wife had a card at the time. A few weeks after the raid, the husband saw a doctor and was recommended to receive marijuana, according to their attorney.

Targowski said the two should be allowed to possess and grow marijuana because the husband had, at the time of the raid, a qualifying medical condition under the law.

In another case, Targowski is representing a Kalamazoo man who was arrested with one joint and charged with a misdemeanor marijuana possession. A month later, the man saw a doctor and was recommended marijuana for his condition. Targowski said the same argument as in the Cass County case applies.

In his third case, Targowski’s client was cited for possession after Michigan voters passed a November 2008 ballot issue allowing medical use of marijuana but before the law took effect last spring. The woman, who suffers from a covered medical condition, could not get a card at the time of her arrest but qualified as a patient, Targowski said. He said previous cases that have afforded protection to people arrested before April 2009 should be applied in this one.

Gray area
Targowski said the law’s affirmative defense provisions allow some “wiggle room” for caregivers and patients, but cautioned that they should know what the law says. “You definitely have to color within the lines on this,” he said.

Komourn said he thinks law enforcement agencies will eventually adjust to what is allowed under the law.

“I don’t blame anyone,” he said. “It’s just new. You’ve got a lot of years of marijuana being a four-letter word, and you’ve got a lot of resources devoted to the criminalization of marijuana.

“The law’s gray area is compounded by the lack of training of law enforcement. In California now, they’ve been at it for eight to twelve years, law enforcement knows how to interact with patients and caregivers,” Komourn said.

Police officers involved with the Southwest Enforcement Team, which operates in Barry, Branch, Calhoun, Cass, Kalamazoo, St. Joseph, and Van Buren counties, have had a two-hour seminar about the law, said Lt. Jim Coleman of the Michigan State Police. In the past several months, six or seven people raided by SWET have claimed to be protected under the medical marijuana law.

“More often or not, we can’t figure it out until we get inside,” he said. “It makes it real difficult for us to do our jobs.”

Police officers can search the Michigan Department of Community Health’s database of patients and caregivers by card number only. Names and addresses are kept confidential under the law. The database is only accessible by phone and only during business hours, Coleman said, making verification during a 1 a.m. raid impossible.

Coleman said his officers want to comply with the law, but varying interpretations by county prosecutors and mounting case law complicate the enforcement. He said it appeared to him that each person was in violation of the law but will leave it up to the courts to decide.

The cases Komourn and Targowski and have pending are scheduled to go before judges in early February. While those cases may not work their way up through Michigan’s courts, both attorneys predict medical marijuana cases will eventually make their way to the Michigan Supreme Court.

By Aaron Aupperlee. Source.

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