Cannabis Constitutionality Motion
PEOPLE OF THE STATE OF MICHIGAN,
v.
NOT GUILTY CLIENT
Violation of Controlled Substances Act
Matthew R. Abel (P38876)
Attorney for Defendant
2930 E. Jefferson Ave.
Detroit, MI 48207
248.866.0864
attorneyabel@riseup.net
www.cannabiscounsel.com
MOTIONS TO DISMISS, OR FOR EVIDENTIARY HEARING, FOR EXAMINATION AND TESTING OF EVIDENCE, AND FOR PUBLIC FUNDS TO HIRE EXPERTS
Matthew R. Abel, attorney for Defendant, moves this court to dismiss this case, or for an evidentiary hearing and requests that this Court invalidate the statute under which Defendant is charged, due to unconstitutionality.
1. Defendant was arrested for possession of marijuana and other controlled substances.
2. The search and seizure was invalid, illegal, and the fruits of the search must be suppressed.
3. Defendant moves to invalidate his arrest as a violation of Defendant TMs rights under the Constitution of the United States and the Constitution of the State of Michigan, and dismiss the case with prejudice.
4. Defendant moves that this court find that the Federal classification scheme placing marijuana in Schedule 1 (having no medicinal value) is invalid, and that the prohibition is unconstitutional as a denial of substantive due process.
5. Defendant moves that this court find that the Michigan Controlled Substances Act violates both the Constitution of the State of Michigan and the Constitution of the United States of America, in that, even if no fundamental right is involved, that the law lacks any rational relationship to a legitimate state interest, and is therefore unconstitutional and invalid.
6. Defendant moves that this court find that the state statute under which Defendant is being prosecuted is unconstitutional because it fails to pass strict scrutiny of even having a rational basis toward achieving a legitimate state objective sufficient to curtail Defendant TMs fundamental rights to life, liberty, and the pursuit of happiness.
IMPROPER SCHEDULE 1 CLASSIFICATION DENIES DUE PROCESS AND EQUAL PROTECTION
Michigan statutory controlled substances law relies on and refers to the Federal Schedule Classification Scheme for Controlled Substances. Marijuana is erroneously classified as a Schedule 1 controlled substance, one with no medicinal value. That clearly is in error. Several states in this country, as well as the cities of Detroit, Ann Arbor, and Ferndale in Michigan have authorized the use of marijuana as recommended by a physician. It has been prescribed for such diverse ailments as glaucoma, asthma, chronic wasting disease, cancer, multiple sclerosis, and AIDS. The illegal classification scheme is unconstitutional as a denial of procedural and substantive due process and of equal protection.
Until marijuana is correctly rescheduled as a Schedule II controlled dangerous substance, marijuana cannot be criminalized in Michigan.
Schedule I is reserved for substances having the following characteristics: (1) a high potential for abuse of the substance; (2) no accepted medical use in the United States for the substance; and (3) a lack of accepted safety for use of the substance under medical supervision. None of these requirements pertain to marijuana, and so the scheduling is unconstitutional.
If marijuana is to be criminalized in Michigan, either characterization of Schedule I must be changed by the legislature, or marijuana must be rescheduled.
1. marijuana has much lower potential for abuse than many lesser-scheduled or non-scheduled legal substances:
2. even the governments own experts acknowledge medical use. The Institute of Medicine in the 1999 report œMarijuana and Medicine found:
"The profile of cannabinoid drug effects suggests that they are promising for
treating wasting syndrome in AIDS patients. Nausea, appetite loss, pain, and
anxiety are all afflictions of wasting, and all can be mitigated by
marijuana. Although some medications are more effective than marijuana for
these problems, they are not equally effective in all patients." [IOM p. 159]
"[T]here will likely always be a subpopulation of patients who do not respond
well to other medications. The combination of cannabinoid drug effects
(anxiety reduction, appetite stimulation, nausea reduction, and pain
relief) suggests that cannabinoids would be moderately well suited for certain
conditions, such as chemotherapy-induced nausea and vomiting and AIDS
wasting." [IOM pp. 3, 4]
"The critical issue is not whether marijuana or cannabinoid drugs might be
superior to the new drugs, but whether some group of patients might obtain
added or better relief from marijuana or cannabinoid drugs." [IOM p. 153]
"Until a nonsmoked rapid-onset cannabinoid drug delivery system becomes
available, we acknowledge that there is no clear alternative for people
suffering from chronic conditions that might be relieved by smoking
marijuana, such as pain or AIDS wasting." [IOM p. 8]
Therapeutic compounds in marijuana act through natural pathways in
the brain. In 1990 researchers identified nerve receptors in the brain
that are stimulated by THC and cloned the gene that gives rise to those
receptors. In 1992 the natural body chemical that binds to those receptors
was identified. It was named anandamide, after a Sanskrit word meaning
"bliss." Receptors for anandemide are located mainly in the cerebral
cortex, and in the basal ganglia and cerebellum, parts of the brain
associated with body movements. The receptors in the cortex may explain
the cognitive effects of cannabis, and those found in the basal ganglia
and cerebellum may account for the ameliorative effects of THC and/or
other cannabinoids on muscle spasms and other body movement disorders.
[IOM p. 34]
The U.S. Institute of Medicine has recommended that clinical trials of smoked
marijuana should be conducted for the treatment of numerous medical conditions.
[IOM p. 7-8]
"There is no conclusive evidence that [smoking] marijuana causes
cancer in humans, including cancers usually related to tobacco use. ...
More definitive evidence that habitual marijuana smoking leads or does
not lead to respiratory cancer awaits the results of well-designed case
control epidemiological studies." [IOM p. 119]
"[I]t will likely be many years before a safe and effective canna-
binoid delivery system, such as an inhaler, is available for patients. In
the meantime there are patients with debilitating symptoms for whom smoked
marijuana might provide relief." [IOM p. 7]
Besides THC, there are other medicinally beneficial ingredients in whole
marijuana. [IOM, pp 33-81]
3. There is no lack of accepted safety for use under medical supervision. Many doctors in this country now supervise numerous patients who safely use marijuana.
Allowing medical supervision reduces lawlessness.
THE CONTROLLED SUBSTANCES ACT LACKS ANY RATIONAL BASIS
AS APPLIED TO CANNABIS
The worst thing about marijuana is that it is against the law. No evidence of physical harm has ever been shown. Even if some harm were shown, there are less restrictive means of accomplishing the governmental objective (assuming that it is a legitimate objective under the Constitution).
As stated by the Michigan Supreme Court in People v. Sinclair, 387 Mich 91, 194 NW 2d 878 (1971): œComparison of the effects of marijuana use on both the individual and society with the effects of other drug use demonstrates not only that there is no rational basis for classifying marijuana with the œhard narcotics�, but, also, that there is not even a rational basis for treating marijuana as a more dangerous drug than alcohol.
CONTROLLED SUBSTANCES ACT LACKS COMPELLING STATE INTEREST TO IMPACT DEFENDANT TMS FUNDAMENTAL RIGHTS
Regulation which restricts the exercise of certain fundamental rights may be justified only by a compelling state interest. Birth Control Centers, Inc. v. Reize, 508 F. Supp, 1366 (1981).
The U.S. Constitution guarantees people the right to the pursuit of happiness. That includes the right to protect one TMs health, Right to Choose v. Byrne, 398 A.2d 587. While the state may impose reasonable limitations on the pursuit, the state has a heavy burden to justify its interference in a person TMs right to the pursuit of happiness. Jacobs v. Benedict, 301 N.E. 2d 723.
While a California court has found that there is not a deprivation of the right to the pursuit of happiness by the prohibition of marijuana, NORML v. Gain, 161 Cal Rptr. 181, Defendant asserts that holding to be in error, and in any event, of no precedential value here in Michigan.
The U.S. Constitution also protects Defendants First Amendment right to freedom of expression. The governmental interest in the controlled substances laws, which presumably is to foster the health of the people, is not only not being met by the regulatory scheme, but is actually being harmed by application of the laws.
SANCTIONS FOR VIOLATION OF THE ACT ARE IRRATIONAL , CAUSING CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT
Prison, jail, or probation for possession of a natural growing herb which has homeopathic healing properties for both physical and mental health is cruel and unusual, and the statutes should be held unconstitutional for this reason.
ONLY CANNABIS SATIVA IS PROHIBITED, AND THE PEOPLE ARE UNABLE TO DISTINGUISH BETWEEN CANNABIS SATIVA AND CANNABIS INDICA AND CANNABIS RUDERALIS
The Michigan Legislature enacted a statute prohibiting marijuana, which then defines marijuana as cannabis sativa:
333.7106 Definitions; I to M.
Sec. 7106 (3) œMarihuana� means all parts of the plant Cannabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
History: 1978, Act 368, Eff. Sept. 30, 1978
There are other varieties of cannabis which are not sativa, and therefore not prohibited. The people cannot produce any evidence that the substance confiscated was sativa as opposed to any other variety.
Botanists have been at odds since the 16th century over whether cannabis consists of only one species (Cannabis sativa) or more than one species. That there are different strains of cannabis has not been in question; whether these strains possess qualities of a true species or lesser taxonomic designations, such as races, ecotypes, cultivates, chemovars, and so on, has been at issue (Schultes and Hofmann 1980). Current research indicates the classification consists of more than one species. Botanists such as Richard E. Schultes at Harvard University and Loran C. Anderson at Florida State University conclude sufficient scientific evidence exists to support three species of cannabis: Cannabis sativa, Cannabis indica, and Cannabis ruderalis. C. sativa grows to a height of 18 feet (6 metres), is loosely branched, and thrives in cool, damp climates. C. indica grows from 3.5 to 4 feet (1.3 metres), is conical in shape, and thrives in hot, dry climates. C. ruderalis grows from 1 to 2.5 feet (0.4 to 0.7 m), is dense and never branches, and is found primarily in Russia. There are other distinguishing features as well, related to cell and leaf structures. There are gelatinous fibers in the wood and vessels that exist singly or in small groups in C. sativa. C. indica has liberiform fibers in its wood and its vessels occur in large groups. C. ruderalis is mostly intermediate in these characteristics. Although the number of leaflets may vary within a species, C. sativa normally has seven leaflets, C. indica has nine , and C. ruderalis has three. The leaflet of C. sativa is narrow, or lanceolate. The C. indica leaflet is broad, or oblanceolate. And the C. ruderalis leaflet is oval, or elliptic, being broadest at the mid-length of the leaf (Anderson 1974, 1980). All three species contain THC; C.indica produces the most and C. ruderalis the least. Cannabis has been cultivated for thousands of years for its intoxicating flowering tops and leaves, its fibrous stems and branches, and its nutritious seeds. A strain that is high in one of these three qualities tends to be low in the other two. C. indica, for example, is very low in fiber content but generates the most potent marijuana. C. sativa produces the hemp fibers that have been used for centuries for making rope and coarse woven produces, but races of C. sativa high in this quality contain very little THC (less than 0.5 percent). The seeds of C. sativa can also be harvested for use as animal feed and for producing oil that is used in cooking and in making paint.
www.bambooweb.com/articles/m/a/Marijuana.html
While courts have held that by prohibiting cannabis sativa, the legislature intended to prohibit all varieties of the genus cannabis, People v. Riddle, 65 Mich App 433, 237 NW2d 491 (1975) that holding cannot stand, for it flies in the face of the settled rule of legislative construction that words enacted by the legislature are intended to have meaning. With the current interpretation of the statute, the word sativa has been rendered superfluous, and we know that cannot be what the legislature intended.
If the legislature acted in a less than delicate way, it is not for the court to clean up their mess, but to send a clear message to the legislature that it is a mess, which will not be tolerated.
If the legislature wants to prohibit all varieties of the genus cannabis, they easily can do so. This court should not be in the position of agreeing that statutory words have no meaning. The statutory definition was enacted AFTER the Michigan Court of Appeals decided Riddle, and the legislature is presumed to have known of the Riddle holding when the statute was enacted. Accordingly, the later statutory construction must prevail over the earlier court decision.
Accordingly, unless the People can prove through admissible evidence that the Defendant was in possession of cannabis SATIVA, the case must be dismissed.
MOTION FOR EXAMINATION AND TESTING OF EVIDENCE
Defendant is entitled to inspect all evidence, and should be allowed to have the evidence examined and tested by a qualified independent expert.
MOTION FOR PUBLIC FUNDS TO HIRE EXPERTS
Defendant has barely been able to afford to retain counsel in this matter, and is without the necessary funds to hire experts to assist in his defense.
Accordingly, Defendant requests that this court grant him sufficient funds to hire independent experts at government expense.
DEMAND FOR SPEEDY TRIAL
Defendant reasserts his demand for a speedy trial by jury.
Respectfully Submitted,
Matthew R. Abel P 38876
Attorney for Defendant
October 31, 2006
