Law enforcement: Despite confusion, one thing is clear, profiting is illegal
Wednesday, October 5, 2011
By JAMESON COOK
Justice Peter D. O’Connell of the state Court of Appeals last year used a popular culture reference to explain what he called Michigan medical marijuana law’s “obfuscations, ambiguous language and confusingly overlapping sections.”
“Reading this act is similar to participating in the Triwizard Tournament described in ‘Harry Potter and the Goblet of Fire:’ The maze that is this statute is so complex that the final result will only be known once the Supreme Court has had an opportunity to review and remove most of the haze from this act,” O’Connell says in a footnote in a September 2010 concurring opinion in People vs. Redden.
While Michigan courts slowly try to crystallize the vague and confusing language of the medical marijuana law, law enforcement officials have reached one conclusion — profiting from the law is illegal.
Several state law enforcement officials, including the Michigan attorney general, have concluded that marijuana dispensaries in most cases — those operating as a business — are illegal and have been raided by police. Many have shut down.
Officials say the law’s intent wasn’t to make money but provide relief to medically suffering patients.
The law says caregivers who can provide pot to up to five patients may receive “compensation for costs.”
“To me, that means they can recover whatever it costs to grow the plant,” said Paul Walton, spokesman for Oakland County Prosecutor Jessica Cooper. “The law was intended for there to be small operations for compassion, not profit. Dispensary suggests to me it’s being done for commercial sales and that is not provided for.”
Patients must designate caregivers, and vice versa, officials say.
“I can’t think of any business model where a business can operate for a long time with five customers,” said Steve Hiller, deputy chief assistant prosecutor in Washtenaw County. “I don’t think you can have a caregiver with a storefront with hundreds of patients even if he gets together with other caregivers.”
Walton pointed out that the criminalization of marijuana remains the “default.” In People vs. Redden, the appeals court noted the law is “exemptive,” not “permissive,” he said.
Walton cautioned that marijuana remains illegal under federal laws. His office contacts the U.S. Drug Enforcement Administration in any cases involving more than 100 plants.
Special Agent Rich Isaacson, spokesman for the DEA’s Detroit office, said his agents adhere to the policy of the U.S. Department of Justice that basically ignores state medical marijuana laws.
“There’s no such thing as medical marijuana in the federal system,” he said. “It really hasn’t altered the way the DEA conducts business. Marijuana is a ‘schedule one’ drug. There is no medical benefit from it.”
But he added that people adhering to Michigan requirements won’t be pursued.
“We target large-scale drug traffickers,” he said.
Matthew Abel, a Detroit-based medical marijuana attorney, contends that law enforcement is trying to push the envelope too far.
Abel said the “sale” of marijuana is not outlawed and the state should stay out of medical marijuana users’ transactions.
“A sale is equivalent to a transfer or delivery,” Abel said. “What does the government care where patients get their marijuana?”
Abel envisions medical marijuana evolving into a “service industry” in which suppliers charge for the marijuana and expenses, such as labor and equipment.
“General Motors’ labor is an expense, not profit,” Abel said. “For them to say the law says all dispensaries are all illegal, the law doesn’t say that.”
One example of a potentially legal dispensary is 3rd Coast Compassion Center in Ypsilanti. Director Jamie Lowell said the nonprofit organization accepts private donations to pay bills and salaries. He said the facility operates within the confines, spirit and intent of the law.
The law enforcement stance goes against some medical marijuana advocates who contend that a group of caregivers can join forces and serve dozens or even hundreds of patients, sometimes referred to as “collectives.”
But, Hiller said, according to court rulings, caregivers cannot share each others’ patients, and each patient’s stash must be stored separately, according to court rulings.
A precedent-setting Court of Appeals ruling — People vs. Ryan M. Bylsma, stemming out of Kent County, issued Sept. 28 — says that Bylsma, a caregiver, can only grow plants for patients who are formally registered to him through the Michigan Department of Community Health’s registration process.
Ultimately, experts say the courts and possibly the Legislature should have the final say in the law’s evolvement.
The law, passed by 63 percent of voters in the 2008 election, within the next year will undergo its first reviews by the Michigan Supreme Court in two cases: People vs. Larry King and People vs. Alexander Kolanek.
In the King case, the court will address whether King — a 55-year-old medical marijuana patient — grew and stored it in a sufficiently locked and enclosed facility in and outside his Owosso home in Shiawassee County. King grew pot in a 6-foot-high chain-link dog kennel under lock and key and in a closet inside the home. But the appeals court ruled that the outdoor facility was not secure enough because it didn’t have a roof and was not stationed to the ground, and the indoor closet didn’t have a lock.
King was charged with two counts of felony manufacturing marijuana.
Attorney Dan Korobkin of the American Civil Liberties Union, representing King, said the court accepted the case also because King raised an “affirmative defense,” that his medical requirement for the drug usurps the criminal charge.
“The criminal prosecution of Larry King is a gross injustice,” Korobkin said, also pointing out the outdoor facility was sturdy and indoor facility sufficiently isolated from access in his home.
Korobkin noted the dissenting opinion of Justice E. Thomas Fitzgerald, who said the law’s “susceptibility to multiple interpretations should not result in the use of the act as a sword, rather than a shield.”
The second high-court case is the People vs. Alexander Kolanek. Justices will mull whether a marijuana possession charge should stick. Kolanek gained approval from a doctor and his patient card after his arrest, although the doctor says he and Kolanek discussed him getting the card prior to his arrest. The COA reversed Oakland Judge Edward Sosnick, who had sided with Kolanek.
Kolanek was arrested in April 2009 in Oakland County for having eight marijuana cigarettes in the trunk of his vehicle.
The appeals court has ruled in two other significant medical marijuana cases that may be appealed.
The court ruled Aug. 23 in favor of the state vs. Brandon McQueen and Matthew Taylor, who were doing business as Compassionate Apothecary LLC, a Mount Pleasant dispensary.
The dispensary was shut down for being a public nuisance, in violation of the public health code.
CA rented lockers to patients and caregivers to exchange marijuana. CA also kept up to 20 percent of the transaction cost.
The appeals panel, in overturning Isabella County Circuit Court, ruled that patient-to-patient sales are illegal.
Another important case was People vs. Robert Redden and Torey Clark, both of whom had received doctor approval for but not yet received patient cards when police raided their Madison Heights home in March 2009 and confiscated 21 plants. They were charged with felonies.
At their preliminary examination, 43rd District Court Judge Robert Turner threw out the case and called it “one of the worst pieces of legislation I have ever seen in my life.”
But the circuit court reinstated the charges and was upheld in September 2010 by the appeals court, which said Redden, who suffered from “pain,” and Clark, who suffered from “nausea,” didn’t meet the criteria for “debilitating medical conditions required by the MMMA.” Redden said he had a degenerative hip condition and Clark was recovering from ovarian cancer surgery.
The pair currently faces criminal charges in Oakland Circuit Court in Pontiac.
For more please visit: http://www.sourcenewspapers.com/articles/2011/10/05/news/doc4e8cbf6604e43472576322.txt?viewmode=fullstory