Ok, so Michigan has legalized marijuana - so why can't you smoke on probation?

In November, Michigan voters approved recreational marijuana. So does this mean it is legal to smoke when and wherever you want?

Simply put: no, it's not that easy.

First: recreational use only applies to people 21 and over. So if you're under 21, recreational marijuana use /possession is still illegal, no matter what.

Second: this still means employers can screen you for drug use, and fire (or refuse to hire) you if your screen shows use of marijuana. The act approved by voters included quite strict language on employer's rights to hire/fire related to recreational use.

Third: courts and/or probation departments can still require that you test "clean" for all substances including alcohol, and marijuana. This is a typical condition of probation, as this is showing the court /probation department that you're sober.

It's official: Medical marijuana law expanded - Gov. Snyder signs House bills to allow for edibles, etc.

It's official!

Casual use is still not on the ballot for November, but the medical act has been expanded!

Article here (official news release by Governor's office).

Federal drug administration told the DEA about marijuan's use as medicine (or not) - but won't tell the public

Asked recently for an update, DEA spokesperson Rusty Payne told VICE News, "We don't have a timeline on the decision."

The attorney general and DEA have the final say on rescheduling, but the FDA offered its official stance on the issue at least eight months ago, according to the agencies' joint letter to members Congress, which said the DEA received the FDA's input sometime prior to September 30, 2015. Neither agency, however, is currently willing to reveal what the FDA thinks ought to happen.

Article here (via VICE News.)

Marijuana licensing bills (HB 4210 & 4209) tabled until Fall 2016

Medical marijuana regulation bills proposed in Michigan's House of Representatives will not received a vote, though one was intended this past week.

The bills (HB 4209, 4210, and 4827 respectively), would regulate the legal sale and use of "medibles," or non-smokable cannabis, among other areas of licensing. 

In its place, the votes are intended to happen in Fall 2016.

Q & A: Drinking and driving and marijuana use (Novel thoughts in the law: If it's illegal, you can get in trouble. And even if not illegal, too.)

Q: I was arrested for drinking and driving, blew a .10, and have been able to get a plea deal for driving while impaired, instead of the higher charge. But the thing is, I was tested for use of marijuana at a later alcohol and substance abuse assessment. I have been working on getting a card for medical use of marijuana but it hasn't happened yet. Why did they test me for THC? This charge had nothing to do with that.

A: They tested you because they can, and because marijuana use is still illegal. Sorry, but even when you are showing that you may have a medical need, but your medical marijuana card isn't issued yet, the court may order you to test "clean" or negative for any other substances (including alcohol) during the period of your probation.

An alcohol and substance abuse evaluation is often part of the sentencing process. It's a report that is later given to the Court and Probation department, and it can be quite influential regarding your sentence.

Let's face it, taking care of your legal problems should be foremost in your mind right now. So take your time with the evaluator, and don't feel like it's an inconvenience. Spending time in jail or on community service are inconvenient as well.

The evaluator may also ask questions about your family life, whether your parents had alcohol or drug problems, and other questions that don't seem particularly relevant to why you were pulled over. Sorry, but that's  part of the assessment as well, and gives a clearer picture to the evaluator as to whether you may be at a risk to re-offend. A second evaluation may also be part of the sentencing and probation process, nearer to the end, to show that you're improved over the term of probation.

The test, for which you tested positive, will possibly be re-administered between now and the end of your probation. Today's test will be used as a "baseline" for the THC that's in your system, and as long as you're ordered to test, that level needs to go down in your blood, otherwise you may be facing a violation of your probation - no laughing matter. It means that the underlying sentence from the drunk driving charge may actually happen to you, even if it was pleaded out in court.

And here's the novel thought in the law: If it's illegal, you can get in trouble. If it's not illegal, but it is part of your probation conditions, you can also get in trouble. So that means that you might be restricted from all alcohol use as a term of your probation, even though alcohol is totally legal, it currently isn't legal for you, because of probation. Likewise, talking to someone is not a crime - but if there's a no-contact order as part of your probation because of alleged domestic violence, then talking to that person is illegal for you during the term of your probation.

Medical marijuana sales could generate up to $63 million annually, says report

The report, commissioned by the Michigan Cannabis Development Association, says Michigan could expect revenues between $44.3 million and $63.5 million per year. Regulation could also create about 10,000 jobs.

The amounts are based on the number of registered patients who can legally buy medical marijuana. The 2015 medical marijuana patient population was 182,091, according to the Michigan Department of Licensing and Regulatory affairs, a press release said.

Article here (via mlive), Also: Michigan cannabis development association. 

Michigan Court of Appeals: Ruling on what's considered "usable marijuana" under the Medical MJ Act.

GRAND RAPIDS, MI – In a split decision, a state appeals panel said that harvested marijuana being kept in canisters to dry does constitute usable marijuana.

Alenna Marie Rocafort, 47, said she intended to make hash oil out of drying - and thus not usable - marijuana.

(article here - via mlive). 

The defendant had earlier been charged with being beyond the legal limit of what's allowed under the MMMA law for medical caregivers.  Caregivers are allowed to possess up to 2.5 ounces of marijuana per patient. She would be allowed to possess 15 ounces for five patients and herself.

The Kent County Circuit court ruled earlier that she was above the limit - and in violation of the Act. But the Court of Appeals disagreed.

"The trial court concluded that, although the seized marijuana may not have been dried to the ideal extent, it was 'largely dried,' and therefore denied defendant's motions," justices Jane Markey and William Murphy wrote.

Michigan's licensing board rejects adding autism to medical marijuana treatment under MMMA

In a four-page “Final Determination,” Zimmer said that allowing the use of medical marijuana for autism might do more harm than good to mildly afflicted autistic children.

That view followed corroborating testimony in Lansing by Dr. Harry Chugani, chief of pediatric neurology at Children’s Hospital of Michigan and a national authority on autism.

Article here (via freep). 

Update- Employment law and the Michigan Medical Marihuana Act

In an earlier post, this blog gave you a nutshell of how the Michigan Medical Marihuana Act is supposed to work.


Q: A reader sent me the question based on the previous blog: What if I am fired from my job for use of marijuana? Do I have a way to sue my employer for wrongful discharge?
A: Courts have already answered that question, and the answer appears to be "no, you don't."

The issue: Michigan law, in the MMMA (Short form of Michigan Medical Marihuana Act), says that 

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use  . ( . . . ) (MCL 333.26424 (a))

 And that

There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. (MCL 333.26424 (d)).

This sounds as if an employee can't be fired for medical use. And that the law presumes that if a qualified patient keeps his or her registry current, and doesn't show other "evidence" that the use wasn't medicinal.

But courts have ruled otherwise. A lot of employers have a "zero tolerance" policy. This means that the employer is aware that the MMMA exists, but will fire an employee who has tested positive for cannibis, even though the employee's use is medical. Again, Courts say this is OK.

This question was specifically addressed in a somewhat recent case, in Michigan. An employee sued Wal-mart for firing him for his positive drug test, since the positive result was based on medical use. The employee, Joseph Casias, suffered from inoperable brain cancer, and was prescribed marihuana use by his oncologist when the MMMA went into effect.  (article here.) He didn't use while on the job, tested positive, and was fired.

Casias  sued in US District Court, lost, and appealed to the 6th Circuit Court of Appeals. The Appeals court upheld the decision of the District Court, saying that the MMMA doesn't offer protection from private employers' actions against an employee, only to prevent criminal charges against someone's medical use.

Additionally, the Court said that

Michigan voters could not have intended such consequences and that accepting plaintiff’s argument would create a new category of protected workers which would ‘mark a radical departure from the general rule of at-will employment in Michigan.’”

Casias v Wal-Mart Stores, Inc., et al,  See also this article,  full text opinion here.

It's hard to say how this could change in the future. There are some open questions from this case, such as: Did Michigan voters mean to create an Act that would exclude medical users from being fired for medical use? How would the law be altered to reflect that? (Answer: legislative change could bring this about, or a petition to change the law could end up on future ballots, I suppose).

Joseph Casias, brain cancer patient and fired Wal-mart employee.

Petition for marijuana legalization to be placed on Michigan ballot? Michigan canvassers board to review petition

The Michigan Cannabis Coalition, which has been described as "a loosely formed group of business and political folks," wants to legalize and tax recreational marijuana, devoting any proceeds to education, public safety and public health.

It's one of three marijuana legalization groups eyeing the 2016 ballot, and its proposal is unique in that it would give state lawmakers a prominent role in the legalization process.

Article here. 

Michigan could be first state to use roadside saliva test for marijuana use

Under a bill proposed in Lansing, Michigan could become the first state to adopt a roadside saliva test that aims to tell police if a driver is impaired due to consuming marijuana.

Saliva testing is being pushed by a bipartisan group of Michigan legislators and championed by the Michigan State Police. But researchers who’ve studied the test method said results are inconsistent and especially misleading when applied to regular users of cannabis, such as the more than 100,000 Michiganders who are allowed to use medical marijuana.

 Article here. 

This is despite the fact that the Michigan Supreme Court doesn't support the use of random roadside sobriety tests. 

Medical Marijuana: two bills stalled in Michigan legislature

Supporters of medical marijuana were thrilled last year when two bills making it easier for people to buy a variety of medicinal cannabis — including edibles — passed the House of Representative with large bipartisan majorities.
But those cheers may turn to frustration as the two bills have stalled in the state Senate with no visible sign that they’ll move anytime soon.

Article here. 

The Michigan Senate is serious about medical marijuana: Senate OKs pharmacy sale of medical marijuana

A bill that would allow for the growing and sale of pharmaceutical grade marijuana at pharmacies in Michigan passed the state Senate Wednesday on a 22-16 vote.

The bill was lauded by supporters as a way to guarantee a safe, tested product for medical marijuana users. But opponents said it did nothing to address shortfalls in Michigan’s current medical marijuana law and would outsource production from home growers to out-of-state corporations.

article here.

Michigan's medical marijuana law "one of the worst" written laws

While sentencing a non-compliant marijuana dispensary owner, Kent County Circuit Court judge Mark Trusock sounded off about Michigan's medical marijuana law.

article here.

"I think the medical marijuana statute has become a nightmare for some good honest people," he said. "It just has to be one of the worst statutes that was ever written and put into place."
"There are courts all over that don't know how to handle it because it was such a poorly written law," Trusock said.

Could you buy medical marijuana from a pharmacy? Maybe.

Buying medical marijuana at your pharmacy may be a possibility, thanks to the Michigan Senate.

Article here.

The bill would: amend the public health code and classify marijuana as a Schedule 2 controlled substance; provide for the licensure and regulation of facilities to grow and test pharmaceutical-grade pot, and allow those facilities to sell the drug to pharmacies to dispense.

Medical marijuana users would have to get an additional, enhanced certificate from a doctor to be able to buy the drug from a pharmacy. The bill also would restrict the sale of pharmaceutical-grade cannabis to 2 ounces per month, per customer who is at least 18 years old.

The bill will move to the full Senate, where it will likely face a vote later this week. 

Wyoming's law on Medical Marijuana not a ban, just an attempt to enforce zoning

In defense of a city ordinance under attack, the City of Wyoming has the right to enforce zoning, and the Michigan Medical Marijuana Act doesn't prohibit that, argued the City Attorney for Wyoming. Article here.

The Michigan Supreme Court heard oral argument last week as to whether Wyoming's ordinance was constitutional. Wyoming's ordinance was that in the city, only a licensed pharmacist can dispense medical marijuana. A Wyoming resident sued, saying that the city violated the tenants of the Medical Marijuana Act, which was passed by 63 percent of voters statewide and by 59 percent of voters in the city of Wyoming in 2008. His lawsuit was joined by the ACLU.