Articles Posted in Medical Marijuana Possession

With the growing interest in medical cannabis within the state of Michigan, prosecutions for drug possessions have grown by leaps and bounds, the main reason for this is the “Plain Smell Doctrine.” iStock_000002709890_Large-2-300x200

The “Plain Smell Doctrine” is a concept that that taken on a life of its own within the state of Michigan. In what may shock the conscience, Michigan law recognizes that the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle, under the motor vehicle exception to the warrant requirement. This has led to a great deal of concern in the criminal law section of our state. The leader in criminal defense in our state is Scott Grabel of Grabel and Associates. Grabel weighed in on the topic of the “Plain Smell Doctrine” for this article.

Grabel stated, “The Kazmierczak case changed the face of criminal litigation. That case provided that burned, unburned and the burning of marijuana could lead to a justification of the police searching the entire vehicle. This is stating that the officer is qualified based upon one of his senses to “create probable cause” and having that theory in place puts everyone in jeopardy. It is as if the medical cannabis user is becoming a target even while having a valid Michigan Medical Marijuana Card on their person.”

On September 12, 2017, the Michigan Medical Marihuana Licensing Board left many patients and caregivers with a sense of fear and frustration. As one member of the audience stated, “Does this board want us to start buying drugs on the street? That’s what it sounds like to me? I did everything right and now they are going to compromise my medical needs!!!” dutch-weed-403-m

The words of that patient was shared by many when updates were released from the Michigan Cannabis Community. The highlights of the meeting are outlined below and lead many to wonder what will happen next. The points that were stated include:

1. Dispensaries will close on December 15 and will not reopen until late March (if ever).

What if I told you that a business that seems to be legal and a cure to the economic crisis in the state of Michigan was growing more vulnerable by the day? While that may seem like a stretch to many that are reading this, the first meeting of Michigan’s Medical Marijuana Licensing Board in June of this year left far more questions than answers and in all communications since the issue of medical cannabis has grown even murkier. We are left with the thought that the issue of medical cannabis can be the savior for the consistent Michigan economic crisis or it could lead to an array of criminal prosecutions. To address some of these answers, we turned to leaders in the legal community to provide insight. What they had to say was insightful but also should put cannabis dispensaries on alert. marijuana leaf

We started the research by speaking to Scott Grabel and Grabel and Associates. With offices in Lansing, Ann Arbor and Grand Rapids, Michigan, Grabel has evolved into the leader of criminal defense in the state of Michigan. Grabel stated, “When Governor Rick Snyder named Rick Johnson as the Chairman of the Cannabis Board he sent a clear message that the state was going to have a conservative spin on the topic. In addition to Johnson, Board Member Donald Bailey has stated clearly that every dispensary operating right now is in violation of the “Michigan Medical Marihuana Act” and with that comment being placed on the public record, our state will be faced with two critical issues: The first being that they can leave business as usual and not threaten prosecutions. The other option has far greater consequences to one’s freedom but can also equate to money for the state. If Michigan starts a sweep of criminal prosecution there could be many fines levied and that is a direction the state could go. While this is not a pleasant thought, it is a possibility that we need to face head on and with intelligence. If we prepare for that possibility we can preserve freedom, if we are negligent, a lot of good people can face a multitude of ugly consequences.”

Matthew McManus, a partner at Ann Arbor Legal, in Ann Arbor, Michigan weighed in. McManus stated, “It is amazing how many lawyers are making money by providing bad advice. It is almost as if many litigators are overlooking the preemption issue. The 10th Amendment is not a guarantee to be a safeguard in this situation. This is the dawning of a new age in Michigan but the only ones’ that can reap the benefits are those that are a step ahead of the game. To not prepare or have an attorney provide you lip service is not going to be advantageous to anybody. If you have been in violation, the time to mitigate intelligently is the move as opposed to posting about cannabis on Instagram and Facebook. The lack of intelligence displayed by some of those in our field is shocking. This board is not one that is going to display a great deal of forgiveness for a lack of respect. As a group, we need to prepare and do better.”

While there is little question that medical cannabis in Michigan circa 2017 is what Prohibition was in the mid 1930’s, a key to cannabis facilitation is the physician. Lately, the medical professional has become a target for both state and federal prosecution as they are viewed the gateway to helping people obtain their medical marijuana cards. green-wonder-5666-m-225x300

In an article published by the Detroit Free Press on November 3, 2016 it was stated that one doctor approved nearly 12,000 patients for medical marijuana in Michigan. This was the beginning of an array of national scrutiny for doctors across the state with many that have gone into hiding. If medical cannabis is legal in the state of Michigan, why are medical professions fearing for their license? We have a chance to sit down and speak to legal professionals that have garnered attention as the top in the criminal industry to discuss the issue at length. What they have to say provides a combination of both legal expertise and common sense. The first to weigh in on the issue was Scott Grabel of Grabel and Associates.

Grabel has developed a reputation as the top criminal litigator across the state of Michigan. One of the ways that Grabel has developed his stellar reputation is defending those in the cannabis field many of whom include those in the medical profession. Grabel stated, “We have to start with the premise that there are good doctors and bad doctors in the field. There are those that truly want to help patients and those that want to make a quick buck. No matter what category the physician falls into, many seem to forget that they need to establish a ‘bona-fide physician-patient relationship’ and this means meeting the doctor for more than just obtaining your marijuana card. If there is not a relationship established and we are looking at a one-time transaction, everyone, including the patient is vulnerable. The lack of due diligence from even those with the best of intentions can lead to loss of licensure and criminal prosecution. Our job in litigation should be to tutor the physician about the law as opposed to just taking their money. We have an obligation and the reality is that many lawyers are in this field for the wrong reasons. Many of our clients consult with us before they face incarceration. There is no question that prevention is often the best defense.”

If things keep going as they have been, it could soon be legal to use marijuana in the state of Michigan. While marijuana has been legal in the state for medical purposes since 2008, many across the state are in support of adding the legalization of marijuana to the ballot in 2018. In fact, recently it was announced that more than 100,000 signatures had been collected by The Coalition to Regulate Marijuana Like Alcohol, well ahead of the 250,000 signatures necessary to get the issue on the ballot within a six-month time frame. Medical-Marijuana-MI-Voters-Say-Yes-MDCH-Says-Not-Yet-Pic-300x225

According to news reports, the most recent campaign filing with the Secretary of State by the coalition has raised more than $818,000 combined through direct and indirect contributions, putting the group’s fundraising and signature efforts ahead of schedule.

Cannabis is becoming legal for recreational use in more and more states, although understandably there are those opposed to its legalization. If approved in Michigan, limited quantities of marijuana would be legal for those 21 years of age and older, with taxes going to support K-12 public schools, local governments, and roads.

December 15 is a crucial day for the state of Michigan because on that day, the process for medical marijuana licensure will begin. The licenses that will be granted are going to change the face of economics in the state of Michigan but with the new prospect for economic growth comes potential pitfalls that some people are overlooking. The reality is with a conservative Medical Marijuana Board in place, the applicants are going to have to come from different walks of life and getting licensure will not be an easy task. To delve deeper into the issue, we examined how licensure will affect the cannabis community and what we found out was that there is a lot of misinformation that is being spread. Let’s break down some of the issues that we as litigators will have to face for our clients: Medical-Marijuana-MI-Voters-Say-Yes-MDCH-Says-Not-Yet-Pic-300x225

I. Can out of state financing come in?

The state of Michigan is expecting a huge influx of revenues for the new entity but there are issues that need to be addressed. Ravi Gurumurthy, a successful attorney from Cadillac, Michigan, was asked about the issue. Gurumurthy stated, “What people do not understand is that cannabis is still illegal on the federal level. More importantly, if someone thinks that they are just going to be able to obtain out-of-state financing, they need to think again. There are Commerce Clause implications that could literally destroy Operating Agreements and projections could be nothing more than useless words on a page. The whole goal here is to generate income for the legislature and the citizens of Michigan; the non-domiciled individual will not be able to just come in and make a strong investment and just walk away. Our state and the United States Constitution alike will be tested and while there are many positives on the horizon, obtaining those benefits will be present many cases of first impression for our judiciary.”

In April, the DEA (Drug Enforcement Administration) announced that it was reviewing the medical marijuana leafpossibility of reclassifying marijuana as a Schedule II drug.  Since 1970, marijuana has been classified as a Schedule I drug, which means it has no currently accepted medical treatment use.  Schedule I drugs include, in addition to marijuana, heroin, LSD, bath salts, cocaine, and other substances that have high abuse potential.  If marijuana is rescheduled as a Schedule II drugs, it would be in a category of drugs including oxycodone, Adderal, and Ritalin.

While marijuana is currently classified as a substance with no currently accepted medical treatment use, ironically it is permitted for medical use in some form across 24 states in the U.S., including Michigan.  Experts claim that the rescheduling of marijuana could have a far-reaching impact on how it is used in medical settings.
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