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Monday, April 8, 2013
By Michael Nichols
Categories: Josh Covert, Medical Marijuana
The changes were approved by the Michigan legislature and signed into law by Governor Snyder. The MMMA was enacted in 2008 as a voter initiative. A voter initiative is essentially a law that is enacted in response to voter approval and is akin to a direct democracy, whereas most all other laws are enacted by the legislature. Because the MMMA was a voter initiative, the legislature could only amend or change the law if they were able to get a 75% majority vote.
The first major change is Public Act 460 of 2012 (MCLA 750.474) which makes it a criminal offense to transport usable marihuana inside a motor vehicle or self-propelled vehicle designed for land travel unless it is transported inside a case in the trunk of the vehicle or in a case that is not readily accessible from the interior of the vehicle if the vehicle does not have a trunk. Useable marihuana is defined as “the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof but does not include the seeds, stalks, and roots of the plant”. If someone is convicted of violating MCLA 750.474 the maximum penalty is up to 93 days in jail and or a $500 fine.
MCLA 750.474 does not apply to only MMMA patients and caregivers and in fact could apply to even recreational users. What this means is that if someone is found to have recreational marihuana in the glove box of their vehicle it would be possible for them to be charged with both possession of marihuana and for illegally transporting the marihuana. MCLA 750.474 also does not prevent someone who is a MMMA patient or caregiver from asserting an affirmative defense to prosecution. It is interesting to note that the motor vehicle code defines a “motor vehicle” as “every vehicle that is self-propelled” (MCLA 257.33) and a “vehicle” as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power” (MCLA 257.79) whereas the penal code defines “motor vehicle“ as “all vehicles impelled on the public highways of this state by mechanical power”(MCLA 750.412). It appears that the penal code version will be used when interpreting the statute.
It is also interesting that the new statute only applies to vehicles used for land travel. “It seems that any societal advantage gained from regulating the transport of useable marihuana inside a vehicle should be extended to include not just motor vehicles used on land but also vehicles used on the waterways and airways of our state” says attorney Joshua M. Covert. Covert continues, “I do not understand the reasoning behind the new law that requires the useable marihuana be in a case and stored in a location that is not readily assessable from the interior of the vehicle. The law does not specify that the useable marihuana must not be assessable to the driver and instead applies to any of the vehicle's passengers and their ability to access as well. This is important because in some motor vehicles such as vans, motorhomes or sport utility vehicles it would be practically impossible to store the marihuana in a place that was not readily assessable from the interior of the vehicle. In some situations I can see compliance being achieved only when a rooftop box is installed on the vehicle but then that presents an additional problem because roof top boxes and the like are not as theft resistant as the interior of a locked car”. The phase “interior of the vehicle” also presents problems for those who operate motorcycles as it is unclear what part of a motorcycle is the interior and what is the exterior.
The Michigan legislators also enacted Public Act 512 of 2012 which amends sections 3, 4, and 8 of the MMMA (MCLA 333.26423, 333.26424, and 333.26428). Section 3 which includes the definitions used in the MMMA is amended to include a definition of “bona fide physician-patient relationship”. Previously this term was not defined and the legislators added this definition to clear up some of the confusion in regards to interpreting the protections provided by the MMMA. According to the new law in order for a patient to be protected under the MMMA the patient must have a bona fide relationship with their physician which means that there must be a “treatment or counseling relationship between a physician and a patient” in addition the physician must review the patient’s relevant medical records and must complete a full assessment of the patients medical history and medical condition. This assessment must be done in person. The new law also requires that the physician create and maintain the patient’s medical records and that the physician has a reasonable expectation that there will be continued follow up care to monitor the effectiveness of the medicine. "It is important that MMMA patients understand the importance of the new requirements. Patients now need to take a long look at their doctor's recommendation and to see if it meets the requirements. Patients should contact their doctor and schedule follow up visits" says attorney Covert.
Public Act 512 of 2012 defines “enclosed, locked facility” for the first time. Previously the term was left to judicial interpretation (see People v King). “Enclosed, locked facility” is now defined as a “stationary and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient”. If Marihuana is grown outdoors there are now additional requirements. Plants growing outside must now be grown so that they are not visible to the unassisted eye from either ground level or from a permanent structure. The outdoor enclosure must also be a stationary structure and enclosed on all side except for the ground and must also be locked to prevent access by anyone other than the patient or the caregiver.
The new law also considers a motor vehicle to be a “locked and enclosed facility” if it is used for the purpose of transporting living marihuana plants “from 1 location to another with the intent to permanently retain those plants at the second location” and provided that the only occupants of the car are either the registered caregiver or registered patient. Next, the new law states that in order to be a “primary caregiver” or “caregiver” one must now be free of any felony convictions within the last ten years and also have never been convicted of a drug or assaultive felony.
Public Act 514 of 2012 amends section 6 of the MMMA (MCLA 333.26426). Section 6 involves the administrative rules of the MMMA. Section 6 now allows LARA (Licensing and Regulatory Affairs) to contract with a private entity to handle the processing and printing of the registry cards which could improve the department’s turnaround time for issuing new cards to patients and caregivers. The new law also extends the length of a MMMA cards validity from 1 to two years. This allows the patient to only undergo the registration process once every two years but patients must still remember that follow up visits are now expected.
The new laws help by clearing up some of the confusing sections of the MMMA by defining some terms like "locked and enclosed facility" and "bona fide physician patient relationship" but at the same time the laws add to the confusion by criminalizing the illegal transport of useable marihuana without providing adequate direction to those who transport useable marihuana. If you have questions regarding the new laws and how they apply to you call the Nichols Law Firm and speak with Joshua Covert an attorney who understands and is familiar with all of the changes to the MMMA. Call 517-432-9000.