Skilled Marijuana Legal Defense In Michigan
Protecting Patients, Caregivers, and Businesses Since 2008
Marijuana laws have been changing in Michigan. The Michigan Medical Marijuana Act (MMMA) was put into effect in 2008. In 2016 the Medical Marijuana Facilities License Act was passed making certain medical marijuana businesses legal. In Late 2018 the People of the State of Michigan voted to make marijuana “legal” in the state of Michigan.
Over the Last decade the law and jurisprudence surrounding Marijuana and specifically medical marijuana has gone through a lot of changes. Michigan now has a medical marijuana system, a medical marijuana business licensing system, and now a recreational marijuana system. The laws are complex and have a lot of overlap and intersection. However, medical marijuana has not significantly changed despite the current updates in the law.
The popularity of medical marijuana has only grown over the last decade since its inception. The major advantage of the system put in place in Michigan has been that it allowed individuals and their caregivers to control the direction and ultimately the fundamentals surrounding the cultivation and use of their medicine.
Despite the popularity of the medical marijuana system, the will of the people was frustrated by the constant efforts of police, prosecutors, and judges. new interpretations of the MMMA every year continued to chip away at the Act, while certain Counties simply became draconian in their enforcement of the laws. This led to a citizenry that couldn’t keep up with the changing laws.
For those who still want to use medical marijuana and the caregiver system it is not only is it vital to figure out how the law is being enforced and what your rights are, it is also extremely important to hire the right criminal defense lawyer when you need one.
The Clark Law Office has been defending medical marijuana patients and caregivers across Michigan in Federal and State Courts since 2008. We have also been representing citizens charged with drug crimes for over 30 years. We have secured major dismissals, acquittals, and plea deals for our clients on all types of felony and misdemeanor charges. We have made sure that the police don’t take our clients cars, homes and businesses in forfeiture proceedings. We represent businesses, dispensaries, growers, patients, and caregivers. If you have been raided by police, shut down by the city, or charged with a crime we can help. If you are looking to figure out what your rights are or how to comply with new laws and regulations we can help. At The Clark Law Office we have the Medical Marijuana expertise to help you no matter what kind of advice you need or whatever kind of trouble you’re in.
Medical Marijuana Laws
Overview – The Michigan Medical Marijuana Act (MMMA)
The law regarding medical marijuana will remain in effect even though marijuana has been “legalized.” A person can still choose to become a card holder or caregiver even though they would have rights to use marijuana in accordance with the recreational laws.
The MMMA as passed creates a framework where persons suffering from a “debilitating medical condition” can obtain a medical marijuana card from the state so that they can use marijuana to treat their medical condition. Additionally, the MMMA allows patients to elect a caregiver to grow and supply them marijuana. A caregiver can have up to five patients. Under the MMMA, patients who obtain a medical marijuana card can grow up to 12 plants on their own or elect a caregiver to grow up to 12 plants for them. The card holder can have up 2.5 ounces of usable Marijuana regardless of whether they grow their own marijuana or elect a caregiver to grow for them. If the patient elects a caregiver, then they can only receive marijuana from their own elected caregiver. The caregiver can grow up to 12 plants for each of their patients and can have 2.5 ounces of marijuana for each of their patients (keep reading to see laws with respect to infused marijuana products).
Caregivers and patients can grow either indoors or outdoors in an enclosed locked facility. See enclosed locked facility page regarding the details on indoor and outdoor grows.
This basic framework does not allow caregivers to transfer marijuana to other caregivers and it does not allow patients to transfer to other patients. Moreover, the framework does not allow dispensaries to legally operate (unless you have a license from the state and local government) as patient to patient sales are not legal. A patient that has elected a caregiver can only obtain marijuana from their own caregiver, not simply any establishment which sells medical marijuana.
2016 Amendments to the MMMA
In 2016, several Amendments were made to the MMMA. The first change was to the definition of usable marijuana so as to allow the possession and use of marijuana concentrates under the Act. The MMMA calls these products that contain “plant resin” or “extract of the marihuana plant” marijuana infused products which can include oils, shatter, cartridges, some edibles, and more. The amendment to the MMMA also increased the amount of marijuana infused products that can be possessed by a patient or caregiver. One ounce of dried marijuana equals 36 ounces of marijuana infused product if the product is in a liquid form (e.g. oil), 16 ounces if the product is in a solid form (e.g. brownies), 7 grams if the product is in a gaseous form.
Another change was to regulate the transportation of marijuana infused products. Notwithstanding the fact that improper transportation of marijuana was struck down as an unconstitutional statute, the new amendment states that infused products (not regular dried marijuana) must be inside a sealed container in the trunk and the label on the product must state who it was purchased from, date of receipt, the weight in ounces, and the date that it was manufactured. Additionally, if a caregiver is transporting an infused product, the caregiver must have a list with them that states, where and to who they are transporting the infused product, the time and date of departure, estimated time and date of arrival, and if applicable where the caregiver received the infused product. As part of the infused marijuana products amendment, THC extraction by Butane was made illegal.
The 2016 update also defined what a Marijuana Plant is under the MMMA. The new definition is “any living organism that produces its own food through photosynthesis and has observable root formation or is in growth material.” This means that dead plants are not considered plants while small plants, cutting or clones that do have some observable roots will be considered a plant. Moreover, it appears that a clone or a cutting that is in water, soil or other type of growth material will be considered a plant even if it does not have observable roots.
These Amendments are still part of the MMMA despite the broader rights that parts of the new recreational laws allow for. There is some overlap in these rights so please look at the new recreational laws to see the full extant of marijuana rights in Michigan.
Not withstanding that Marijuana is now “legal” (see our page for details) and that medical marijuana has been around for over a decade, police, prosecutors and judges still find a way to bring people into the criminal justice system. Whether by being stopped while driving, helicopter raids, search warrants, or some other means, criminal charges are still being brought. The following crimes are some of the major violations that commonly get charged by alleged violation of the marijuana laws in Michigan.
Manufacturing of Marijuana
Manufacturing of Marijuana is one the most frequent charges that medical marijuana patients and caregivers face. It is very serious felony charge that in most instances carries a maximum penalty of 4 to 7 years in prison. The reason that many that are involved with medical marijuana end up being charged with Manufacturing Marijuana is that police find that a patient or caregiver’s conduct fell outside of the MMMA, and as a result, they were not protected from Michigan’s existing controlled substance laws. This is why it’s so vital to closely follow laws with growing inside and growing outside in an enclosed locked facility. The MMMA acts like an umbrella that shields cardholders and caregivers from Michigan’s existing penal laws. If for some reason a cardholder or caregiver fails to comply with the MMMA, it is as if that cardholder or caregiver steps out from underneath the protective umbrella and, thus, allows them to be charged with various felonies. The result of stepping outside the protections of the MMMA essentially means that police and prosecutors can act like you never had a marijuana card to begin with. This could possibly mean harsh penalties, driver licenses suspensions, fines, and jail or prison time.
What is Manufacturing Marijuana?
Manufacturing marijuana generally means growing or cultivating marijuana plants. However, manufacturing’s legal definition covers “production, preparation, propagation, compounding, conversion, or processing, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.”
Because manufacturing marijuana has a broad legal definition, being involved in almost any aspect of growing, cultivating, curing, housing, trimming, or being in possession of marijuana plants can lead to a charge and possible conviction of manufacturing Marijuana. Obviously, if a patient or caregiver is following the law, then the MMMA will protect them. However, it can be extremely easy to violate the MMMA. In fact, the state of Michigan has helicopters they use for finding illegal marijuana grows. Failing to have the marijuana in an enclosed locked facility, allowing others into your grow, having too many plants, having too much weight, using a community grow, and other numerous violations of the MMMA can lead to a Manufacturing Marijuana charge.
What Are The Penalties For Manufacturing?
Manufacturing Marijuana is a four year felony Under Michigan law and carries up to $20,000.00 fine. If the amount of Marihuana is more than 20 plants but fewer than 200 plants, and or more than 5 kilograms but less than 45 kilograms then the penalty is up to 7 years in prison and not more than a $500,000.00. Moreover if the amount is more than 200 plants or more that 45 kilograms than up to 15 years in prison and a fine of not more than $10,000,000.
Delivery of Marijuana
Delivery of Marijuana is an extremely common charge in Michigan. Delivery refers to selling or giving of Marijuana to another person. Under Michigan law, a person is not allowed to sell Marijuana to another person, or even give Marijuana to another person. Commonly law enforcement will use confidential informants to perform controlled buys or will engage in this conduct with undercover officers. These controlled buys then give the police enough evidence to prove that marijuana was sold or delivered. Moreover, police will use surveillance based on tips and other strategies to charge persons with delivery of marijuana.
Even if you have a medical marijuana card it is possible to be charged with delivery of marijuana. This is because the MMMA puts restrictions on who can purchase marijuana, from whom, and how much. Under the MMMA a patient can purchase medical marijuana only from his registered caregiver in an amount up to 2.5 ounces. A patient is not simply allowed to buy marijuana from another patient, or a caregiver that he is not registered to. This means a patient may not sell to another patient. It means a caregiver may not sell to a patient that he is not registered to. Additionally, it means that a caregiver cannot sell to another caregiver. This includes overages to dispensaries as well. Consequently, there are a multitude of ways that a patient or caregiver can be charged with delivery even with a valid license.
Regardless of whether you have a medical marijuana card or not, police routinely charge people with delivery of marijuana. Delivery, like manufacturing is a four-year felony. However, for large amounts of marijuana this charge can carry up to 15 years in prison. Because of the harsh penalties and potential prison time that can come with being charged with this crime, it is extremely important to find an attorney that has experience with drug crimes. At the Clark Law Office, we use all the methods at our disposal to make sure that we give you the best possible defense. A drug charge can be a very intricate ordeal that requires knowledge of the law and experience using all the possible defenses that you can assert. So make sure that you have the right lawyer for your case.
Possession With Intent to Deliver Marijuana
Possession with intent to deliver is a four-year felony just like manufacturing and delivery of marijuana. You can be charged with intent to deliver based on the amount of marijuana in your possession and other items found with the marijuana, like multiple plastic bags or scales. Police and prosecutors state that large amounts of marijuana are not intended for personal use, and consequently use this information to prove that you intended to sell the marijuana rather than use it for personal consumption. Prosecutors love using this charge because it is often very difficult to prove that an actual sale or delivery occurred between persons. It is much more common that police will find marijuana on a person and charge them with this crime by simply attempting to prove that they intended to sell the marijuana with no proof that they actually did try to sell it. Just like with all other drug crimes, it is extremely important to hire someone that will look at all of the facts. Simply because police believe that you were intending to sell marijuana does not a make it so. A multitude of factors can help you demonstrate that the marijuana was for personal use or even for legal use pursuant to a valid medical marijuana card.
Medical marijuana patients and caregivers have rights that normal citizens do not have and this has huge implications for whether or not they can be found guilty of this crime. First, a card will give a patient or caregiver protection against this type of crime, unless for some reason they have not followed the law. But even Medical Marijuana patients that have fallen short of conforming to the MMMA are generally attempting to follow the law and are using marijuana for medical purposes, not for illegal sales. Consequently, it is more difficult to prove this crime against a medical marijuana card holder or caregiver. Additionally, police do not always use legal means for searching and seizing. Often times a search or raid of your home, car or person does not conform to the Fourth Amendment of the U.S. Constitution and the evidence should be thrown out. As a result, hiring lawyers who know the law and your rights is invaluable for avoiding the harsh penalties and potential prison consequences of being convicted with possession with intent to deliver.
Possession of Marijuana
Possession of Marijuana is a one year misdemeanor under Michigan Law. In addition to a maximum possible penalty of one year in jail, it carries fines, costs, and a six month suspension of your driver’s license along with the possibility of probation, and community service.
Under the Medical Marijuana Act a patient is allowed to have up to 2.5 ounces of Medical Marijuana. Moreover, a caregiver is allowed to possess up to 2.5 ounces of medical marijuana for each of his/her own patients. With the new 2016 Amendment to the MMMA regarding marijuana infused products it can get a little more complicated as the Act now allows a patient or caregiver to possess more of certain types of concentrates. With the Amendment, 1 ounce of dried marijuana equals 36 ounces of marijuana infused product if the product is in a liquid form (e.g. oil), 16 ounces if the product is in a solid form (e.g. brownies), 7 grams if the product is in a gaseous form. Consequently you can possess more than 2.5 ounces of some forms of concentrates and still be at or under the legal limit.
For the most part, if you abide by the rules set forth in the MMMA and don’t exceed the 2.5 ounce limit as set forth in the MMMA and the recent amendment, you will be protected by the law. This can be harder than it seems. During harvest time, a patient that grows plants or a caregiver that grows plants is not allowed exceed the 2.5 ounces limit. This can be practically impossible for patients and caregivers growing the maximum amount of plants allowed under the MMMA. Moreover, the law does not allow for a “curing” period or other storage methods to reduce the amount of usable marijuana held by a patient or caregiver. Consequently, it is very important for card holders and caregivers to realize that if they have more than 2.5 ounces of marijuana at any point they are violation of the MMMA. There are additional possession rights that legalization has set up. Violation of the MMMA does not automatically mean that you have violated the laws regarding recreational marijuana. See the current recreational laws to determine what the full extent of your possession rights are in Michigan.
Medical Marijuana Licensing in Michigan
In September of 2016 the Michigan legislature passed a comprehensive law that legalized dispensaries and created a frame work of licenses which allows individuals and businesses to participate in the new medical marijuana dispensary system. The current system only allows for medical marijuana facilities. New recreational facilities rules and regulations are still going through the process of being set up so that individuals and business can apply for them in the future. The current State and local medical marijuana licenses are for:
- Growing marijuana plants for amounts of 500, 1,000, or 1,500 plants
- Processing marijuana facilities
- Secure transporting businesses
- Safety compliance facilities
- Provisioning centers or dispensaries
This new system is designed to help furnish medical marijuana patients with safe and secure medical marijuana within an official and regulated environment. Moreover, the law explicitly allows dispensaries to operate where as previously they have been operating illegally and under the threat of being shut down at any time.
Licensing can only occur in a municipality that has passed an ordinance allowing for one or more of the above listed licenses. Consequently, it is important to figure out where you can set up a business.
Adverse actions including denial of your application, shutting down of your business and suspension or revocation of your business license can happen. Even though these actions are done by boards and state agencies, you still have rights. If something has happened to your business or your license, we can help.
Local Medical Marijuana Restrictions – Zoning
Under Michigan Law, townships, cities, and villages cannot simply create ordinances that ban using and growing all medical marijuana. However, municipalities can regulate medical marijuana within their respective jurisdictions.
Now these local governments can also choose to allow for medical marijuana facilities and whether they want to allow for recreational facilities
If you find that you have compliance issues or have been charged or contacted by your municipality regarding these licenses or restrictions we can help.
Frequently Asked Questions
- Are Dispensaries Legal without a License? Dispensaries are not legal under the Michigan Medical Marijuana Act (MMMA). To operate a Dispensary or provisioning center you must have a license through the state.
- Can I Sell My Overages Overages cannot be sold to a dispensary. It does not matter whether it is a patient that has overages or whether it is a caregiver that has overages, excess marijuana cannot be sold to parties that are not connected to you through the registry process. A caregiver is only allowed to sell it his own patient(s) and patient is not allowed to sell or transfer is medical marijuana to anyone else.
- Can A Patient Sell or Transfer Medical Marijuana To Another Patient? Under the MMMA, patients are not allowed to transfer, give, or sell marijuana to other patients. Under the new recreational laws a person can transfer up to 2.5 ounces of marijuana without compensation.
- Can a Caregiver Transfer or Sell Medical Marijuana To Another Caregiver? A caregiver is only allowed to transfer, sell, or give their medical marijuana to the patients that are registered to that caregiver.
- Can My Patients or Other Persons Be In My Grow Room? It would seem that the MMMA would carve out an exception that would allow patients to see their plants being grown by their caregiver, or to allow other persons into a grow area, but this is not the case. Only a caregiver can have access to the patient’s plants. No one can have access to the plants, not a helper, trimmer, or “consultant.” The same thing goes for a patient that grows their own plants. Only the patient can have access to the plants.
- Can Multiple Caregivers Grow In The Same Building? It depends. Multiple caregivers cannot use a collective grow. This means that two or more caregivers cannot grow their plants together without separation within the same building. However, two caregivers can grow in the same building if they grow in separate lockable rooms that deny access to everyone accept the respective caregiver growing in the separate rooms. Each separate grow must comply with MMMA.
- Can A Patient or Other Persons Help Grow or Harvest My Medical Marijuana? Under the MMMA, only the licensed caregiver may have access to the plants. This means that no one else may help harvest the marijuana. The same is true for patients that grow their own medical marijuana.
- Can I Store Marijuana After My Harvest So That It Does Not Count Toward My 2.5oz of Usable Medical Marijuana? The MMMA does not allow of patients or caregivers to have more than 2.5 ounces of usable medical marijuana. It had been a habit of the past that medical marijuana patients and caregivers would attempt get around this by marking their marijuana in jars labeled curing with label indicating the date that it would be ready. However, this does not work. Any marijuana that is reasonably dry, which means not long after harvest, is considered usable marijuana. As a result of not being able to store medical marijuana, many patients and caregivers run into a problem because their yields produce far more than 2.5 ounces. Unfortunately this rule stands because the Michigan courts have refused to interpret the law in a realistic and reasonable manner. Courts have attempted to take any practical work-ability out of the system and have enforced the language without exception so as to make the whole framework absurdly impossible to comply with. Because of these illogical interpretations 12 plants are somehow supposed to only yield 2.5 ounces of marijuana, card holders can grow marijuana but there is no explicitly legal means for obtaining seeds, dispensaries are not legal, patients cannot transfer to other patients, and caregivers cannot transfer to other caregivers.
- Can I Grow Medical Marijuana If Near Or In A School Zone? The MMMA does not prohibit growing in a school zone. It does prohibit using medical marijuana on the grounds of any preschool, primary or secondary school. However, certain city ordinances have created restrictions on medical marijuana grows, so it is important to check your city ordinances to see if they restrict growing near a school zone.
- Where Can I Use Medical Marijuana? Medical marijuana must be used in private. What does that mean? Well its easier to state where you cannot use. First, you may not use in car, regardless if you are driving or not. You may not use or possess marijuana on a school bus, on school grounds or in a correctional facility. You may not use marijuana on public transportation, in a public place, or while operating a craft or vehicle. Considering that the police are no longer making simple possession of marijuana arrests, our attorneys feel that it’s crucial that all users know the law for driving a vehicle “under the influence” of Marijuana. Additionally, SB 72, which was passed in January of 2017, allows landlords and apartment management companies to prohibit patients from growing or using marijuana in the leased spaces. So it is important to check whether such language is in your lease agreement before signing.
- Can I Be Near A Person Who Uses Medical Marijuana Even Though I Don’t Have A Card? Yes, the MMMA has a specific has specific provisions dealing with this question. MCL 333.26424(j) states: “A person 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, solely for being in the presence or vicinity of the medical use of marijuanain accordance with this act, or for assisting a registered qualifying patient with using a or administering marijuana.”
- I Was Fired From My Job For Having Marijuana In My System Even Though I’m a Medical Marijuana Patient. Is This Legal? A private employer is allowed to fire an employee for failing a drug exam. Use of medical marijuana is not protected when it comes to employers and companies.
- Can I Use Medical Marijuana While on Probation? This can be a tricky situation and it’s best to stay cautious. For a more in-depth answer please read our page answering the question Can I Use Medical Marijuana While on Probation?
- I Have a Medical Marijuana Card From Another State, Can I Use Medical Marijuana While In Michigan? The MMMA has provisions that allow for reciprocal use of medical marijuana cards from other states. If you are abiding by the MMMA and have a medical marijuana card from another state, you will be protected. However, it is up to other states if they recognize a Michigan Medical marijuana card in other medical marijuana states.
- What Is Considered A Plant? Recently, amendments to the MMMA have defined what at plant is. A Marijuana “plant” means any living organism that produces its own food through photosynthesis and has observable root formation or is in growth material. This means if a plant is alive with roots it is considered a plant. Additionally, it means if clones or cuttings are alive in water or soil or other growth material, they will be considered plants even if they do not have roots.
- Are Edibles Legal? The MMMA was recently amended making edibles legal in Michigan for card holders. The MMMA calls edibles “marijuana infused products.” These products are defined as “ a topical formulation, tincture, beverage, edible substance or similar product containing any usable marijuana that is intended for human consumption in a manner other than smoke inhalation.” Generally a patient or caregiver is only allowed to have up to 2.5 ounces of usable marijuana, however, the situation is a little different for edibles. One ounce of regular marijuana is equal to 36 ounces of marijuana infused product if the product is in a liquid form (e.g. oil), 16 ounces if the product is in a solid form (e.g. brownies), 7 grams if the product is in a gaseous form.