Straight Talk on Medical Marijuana Laws: Proposed Changes

Straight Talk on Medical Marijuana Laws: Proposed Changes

(Lisa Schmidt Law Services, orig. May 4, 2012, Ferndale 115 News, May 15th 2012 edition)

Last week, Attorney Lisa J. Schmidt of Schmidt Law Services, PLLC, presented Straight Talk on Medical Marijuana Laws at the Ferndale Public Library.  In that talk she discussed recent proposals by both legislators and the public to modify the Michigan Medical Marihuana Act and the effects these modifications may have on the ability of qualified patients to use the drug.  A previous post addressed the current state of the law and its application.

Judges, lawyers, and advocates agree that the Michigan Medical Marihuana Act (MCL 333.26421 et seq) as it has been applied and interpreted by the courts, leaves much to be desired.  This is true both for those in favor and opposed to the law.  The reality is, there are several gaps in the law that make it difficult to understand or predict whether an individual’s behavior is protected or not.

This law was enacted by voter referendum, which created an amendment to the Michigan Constitution protecting qualified patients, caregivers, and physicians from prosecution under state laws for the possession, cultivation, use, or transportation of marijuana for medical purposes.  Because of the mechanism used to enact this law, it is more difficult for the legislature to amend. According to the Michigan Constitution, amendments can only be modified by a 2/3rd majority vote in both the House and the Senate.  Despite this fact, in 2011 and 2012 a number of bills were proposed in the Michigan State House and Senate to modify the Michigan Medical Marihuana Act.

In 2011, the Legislature proposed a bill that would explicitly outlaw marijuana bars or clubs.  A marijuana bar is a place where qualified patients could go and pay to use medical marijuana.  A marijuana club, on the other hand, would allow qualified patients to pay for membership and then gather in a private place to use medical marijuana.  This was an attempt to put to rest the question of whether dispensaries are legal in Michigan.  A 2011 Court of Appeals case more or less rendered this bill moot when it held that a business which facilitated patient-to-patient transfers of marijuana and took a cut of the costs paid was illegally selling marijuana.  Opponents of the MMMA believe that this ruling outlaws all dispensaries, therefore the proposed bill is illegal.  Proponents of the MMMA believe the ruling to be more limited and that valid, legal dispensaries could still be created under the law as it stands.

Another 2011 bill would have modified the law to notify law enforcement as soon as a medical marijuana ID card is issued, rather than upon investigation and possible arrest of the qualified patient.  This could have effectively prevented unlawful “knock and talk” investigations into legally protected grow operations under the MMMA.  This bill did not become law.

A third 2011 bill would have required the state to assign patients to a pre-authorized caregiver upon approval of the application and would have penalized qualified patients who got their medical marijuana from any source other than that state-authorized caregiver.  This would have had the effect of essentially creating a state-run medical marijuana dealing monopoly.  This bill did not become law.

Another important 2011 bill would have restricted the abilities of physicians to provide written certifications.  Under the bill, the physician would have been required to do a physical examination, review medical records, review relevant test results, review prior treatments and responses by the patient, discuss advantages, disadvantages, alternatives and side-effects with the patient, monitor the patient for side effects, maintain detailed records, and notify the patient’s primary care physician.  This bill was designed to eliminate so-called marijuana certification clinics, where doctors perform cursory evaluations before signing the written certifications necessary to obtain an MMMA ID card.  The goal of this bill is to require an on-going doctor-patient relationship behind the certification.  Due to the fact that many medical malpractice insurance companies will not allow their doctors to sign these written certifications, the effect of such a bill would be to greatly increase the difficulty of receiving the state-mandated authorization for medical marijuana treatment.

Other 2011 bills would have prohibited any felon from serving as a caregiver (and required parents be the caregivers for minor qualified patients), and would have prohibited caretakers from advertising their status or the availability of marijuana.  Other bills would have allowed local municipalities to prohibit marijuana grow facilities within their jurisdictions, would have allowed insurance providers to exclude medical marijuana from their lists of covered treatments, and would have prohibited the transfer of medical marijuana near schools, churches, and daycare centers.  These bills did not become law.

The 2012 legislative cycle has also had its fair share of activity on the MMMA.  Current bills include legislation that would require applicants to provide a 2″ x 2″ photo, similar to that found in a passport, to be included on the qualified patient’s ID card.  As of now, while there is a place on the card for a photo, no valid ID card has a photo of the qualified patient.  The purpose of this bill is to prevent fraud as people either create false ID cards or use the ID card of another individual in order to obtain the protections against prosecution provided by the MMMA.

The 2011 bill limiting doctor-patient relationships has also been re-initiated in 2012.  Under this year’s bill, a physician must fully assess the medical history and current condition of a patient through physical examination, have undertaken treatment or consultation with the client prior to the recommendation of medical marijuana, have a reasonable expectation of follow-up treatment with the patient, and must notify the patient’s primary care physician.  The purpose and effect of this bill is no different than the 2011 version.

Another 2012 bill would create a 90 day misdemeanor for transporting medical marijuana outside of a trunk inaccessible from the interior of the vehicle or in an enclosed case.  This law is similar to the restrictions previously placed on the transportation of alcohol in a vehicle and is designed to deter people from operating motor vehicles while intoxicated.

A fourth 2012 bill makes it a 2 year felony to sell medical marijuana in violation of the ID card restrictions.  Again, this law is designed to prevent any form of dispensary from which marijuana could be sold.  It should be noted that this bill will, if passed, further complicate the issue of where qualified patients are supposed to legally obtain their medical marijuana.  This issue is not addressed in the statute and causes significant difficulties in enforcement and statutory interpretation.  The proposed amendment would only further complicate the issue by essentially preventing patient-to-patient transfers for cost.

Another 2012 bill has been proposed that would eliminate glaucoma as a debilitating medical condition permitting patients to receive medical marijuana ID Cards.  The senator who proposed this bill says he did so because no medical professional he had spoken with could tell him the benefit of marijuana on the condition of glaucoma, even though studies in the 1970s revealed the drug reduced the patients’ inner-eye pressure.  He further stated that he was concerned many glaucoma patients would forgo other treatments and only use marijuana. (See Michigan Medical Marijuana Law Challenged: Senate Bill 977 Would Ban Glaucoma Patient Use)

Other 2012 legislation includes a clarification of the “enclosed, locked facility” requirement, a modification to the information the registry provided to law enforcement officials, an exemption from Worker’s Compensation for medical marijuana treatments, and a bill allowing private property owners to prohibit the use of medical marijuana on their property.  This last bill would allow landlords to evict medical marijuana users in compliance with the statute based solely on their use of the drug.

In addition to the above legislation, there are other changes impacting the state of medical marijuana in Michigan.  In 2011, a law was passed making it illegal to possess, use, manufacture, deliver, or transport synthetic marijuana.  There is no exemption in this statute for medical applications.

Also, there is a current voter initiative called RepealToday.org.  This organization is gathering petition signatures to place a proposal on the 2012 election ballot that would eliminate state-level prohibitions against marijuana.  This proposal would allow the possession, use, growth, manufacture, delivery, or transportation of marijuana for any reason so long as the person involved was 21 years of age or more.  Under the proposal it would still be illegal to operate a vehicle while intoxicated.  Essentially, the organization seeks to have Michigan state laws treat marijuana and alcohol the same.  However, nothing in the proposal would have any effect on federal law.

It is impossible to predict the outcomes of the current pending legislation and voter initiatives, but any of the above proposals would significantly affect the already complex law surrounding the use of medical marijuana in Michigan.

Medical Marijuana Presentation (PowerPoint)

Medical Marijuana Brochure

On Monday, May 21, 2012 Schmidt will be giving a presentation at the Ferndale Public Library on Child Custody.  Find out more about Schmidt Law Services at http://schmidtlawservices.com.  Learn more about educational programs at the Library at www.ferndale.lib.mi.us.

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