In The News

In The News

Thursday, April 8, 2010

Providing a Place to Smoke Medical Marijuana is Risky

By Michael Nichols
Categories: Drug Crimes, Medical Marijuana

One of the more controversial statutes enacted in the recent past is Michigan’s Medical Marihuana Act (the statute spells “marijuana” with an “h” as opposed to a “j”). The statute provides clear guidance on who is protected: “A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty”, so long as that qualifying patient does not possess more than 2.5 ounces and 12 plants (MCL 333.26424(a)). A “primary caregiver” is also protected: “A primary caregiver who has been issued and possesses a registry identification card” enjoys the same level of protection (MCL 333.26424(b)). A “qualifying patient” is defined as someone who “has been diagnosed by a physician as having a debilitating medical condition” (MCL 333.26423(h)). However, the definition of a “Primary caregiver” is much broader: “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has never been convicted of a felony involving illegal drugs” (MCL 333.26423(g)).

In a recent Lansing State Journal article, the question of setting up a place for “qualifying patients” to smoke was raised. According to the article, the City of Lansing, like many cities, is still struggling with the provisions of this statute and what strictures surround dispensaries. The article can be found at

There are no specific provisions in the statute itself. However, the statute does provide limitations on “Primary Caregivers”. Aside from the age and clear criminal history restrictions, one “primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana” (MCL 333.25426(d)). On the flip-side, one qualifying patient “can have no more than 1 primary caregiver” (Id). The statute could be interpreted to mean that a proposed smokehouse for medical marijuana could have no more than 5 qualifying patients smoking.

However, the question then becomes one of passive assistance – in other words, does simply providing a place to smoke, necessarily require the owner/operator of the locale to be “primary caregiver” to those who come in and smoke? Assuming that every person who smokes at that location is a “qualifying patient” who supplies his own medical marihuana, then, absent the “primary caregiver” designation, the owner/operator may not necessarily be prosecuted for “Maintaining a Drug House” (MCL 333.7405(d); a felony punishable by up to 2 years in prison and a fine of up to $25,000, pursuant to MCL 333.7406). If not, then the owner/operator could find himself without any statutory protections, and in a great deal of trouble.

There are even more complications when money is exchanged. Providing a place for qualifying patients to smoke medical marijuana will invariably incur costs to the owner/operator. If the owner/operator starts charging an admission or a membership fee, that too could vitiate any statutory protections. According to the statute, only a “registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient” (MCL 333.26424(e)). Again, the statute could be interpreted to mean that the costs of maintaining such a location are included in the “costs associated with assisting a qualifying patient”.

The Department of Community Health was charged with the duty of overseeing the administration of this statute (MCL 333.26425). However, the Administrative Rules do not provide much guidance either. At most, the rules reiterate that a primary caregiver can be compensated for his assistance (Admin. R. 333.115(1)).

Without any further legislation, the prospect of setting up a location for qualified patients to smoke medical marijuana, is risky – particularly if the owner/operator is not the primary caregiver for those patients. Ultimately, regardless of whether the person is a qualified patient or a primary caregiver, even the Michigan Medical Marihuana Act itself recognizes that “federal law currently prohibits any use of marihuana” (MCL 333.26422(c)). There is nothing in the Michigan statute that can or will protect someone using or providing medical marijuana from federal prosecution.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.