Josh Covert

In The News

Monday, February 11, 2013

The Michigan Supreme Court Rules That Medical Marihuana Patients Cannot Legally Transfer Marihuana To Other Patients

By Michael Nichols
Categories: Josh Covert, Medical Marijuana

In People v McQueen the Michigan Supreme Court upholds a previous Court of Appeals opinion declaring that Michigan Medical Marihuana patients cannot legally sell marihuana to other patients.  This opinion will essentially shut down any of the marihuana dispensaries that have remained open since the Court of appeals decided McQueen in 2011.  Patients will now likely be limited to obtaining their medicine either by growing it themselves or by obtaining a registered caregiver.   

It is important to note that the Michigan Supreme Court came to same conclusion as the Court of Appeals but for different reasons.  The Court of Appeals decided that the sale of medicinal marihuana was not covered under the term "medical use" and therefore outside of the protections provided by the Michigan Medical Marihuana Act (MMMA).  The Supreme Court disagreed and said that sales were indeed within the term "medical use".

Nevertheless, the Supreme Court determined that patient to patient sales or transfers are illegal under section 4 of the MMMA which only allows for a transfer of marihuana for "the patient's" medical use. The use of the word "the" according to the Supreme Court requires each patient involved in an exchange or transfer to receive a medical benefit.  This means that it would be within the MMMA to receive marihuana  if you are a patient but not to give or sell the medicine to another patient.

The Supreme Court did not address section 8  of the MMMA  because McQueen was a civil nuisance action and McQueen was not charged criminally.  This is important because section 8 applies only to criminal prosecutions. Section 8 allows someone charged with a crime involving marihuana to assert an affirmative defense provided they present evidence at an evidentiary hearing that they meet the requirements of section 8. It looks like McQueen will allow patients who are criminally prosecuted to assert an affirmative defense even with transfers involving money. 

Link to opinion:    

"If you are a MMMA patient have been criminally charged for transferring marihuana to another patient, don't give up McQueen offers hope and a rather clear guide on how to avoid prosecution" says attorney Joshua M. Covert.  Call the Nichols Law Firm and speak with attorneys who stay current on the ever changing MMMA landscape. Call 527-432-9000.




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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.

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