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In The News

Tuesday, July 23, 2013

Recent Court Of Appeals Opinion Drastically Alters The Landscape Of Michigan’s Medical Marihuana

By Michael Nichols
Categories: Josh Covert, Medical Marijuana

Last week the Michigan Court Of Appeals issued an opinion in People v Carruthers that limits the types of medicine that can be possessed by medical marihuana patients.  The court held that Section 4 of the MMMA does not protect patients from arrest and prosecution if they possess medicine made up of or containing THC extracted from the resin of a marihuana plant.  This is because the court found that the definition of “marihuana” as used in the MMMA is different than the definition of “usable marihuana”. 

The MMMA adopted the public health code definition of “marihuana”:

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 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.  MCL 333.7106(3).

“Usable 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”.  MCL 333.26423(K).  According to section 4 of the MMMA patients are only protected when possessing “usable marihuana”.  The court took note that the definition for “marihuana” included many terms that were not included in the definition of “usable marihuana” and therefore patients were not protected by the MMMA when possessing those items not mentioned in the definition of “usable marihuana”.   It is important to note that the courts analysis only pertains to those who seek protection under section 4 of the MMMA this is because section 8 which is the other section that provides protections to patients does not use the term “usable marihuana” and instead uses the term “marihuana”.  Because section 8 uses the term marihuana, those who possess extracts made from the resin of the marihuana plant may be protected from prosecution. 

“It appears that after this ruling Michigan marihuana patients are limited to possessing only the leaves and flowers of the marihuana plant if they intend to seek the protections provided in section 4” says attorney Joshua M. Covert. Covert adds, “at this point it is not clear how the court defined the terms ‘resin’ and ‘extraction’ because the terms are not defined in the statute or in the opinion.  ‘Resin’ can be defined as an amorphous substance lacking crystalline structure and Marihuana naturally contains resin.   ‘Extraction’ can mean several things in this context and consulting a dictionary reveals that there are generally three ways to extract: physical extraction, mechanical extraction and chemical extraction. So the question becomes does this opinion only apply to chemical extraction like using butter as a solvent as Mr. Carruthers did? Or does it apply to mechanical and physical extraction?”   If the answer is the later medical marihuana patients could be subjected to criminal penalties any time they harvest marihuana as it could be construed that simply removing the flowers from a stalk could be a form of mechanically extracting the naturally occurring marihuana resin. 

If you are a medical marihuana patient and have been charged with possessing a form of marihuana that is outside of the definition of “usable marihuana” call the Nichols Law Firm to speak with attorneys who know about the different forms of marihuana medicine.  Call 517-432-9000.

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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.

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.