MICHIGAN LAW LACKS CLARITY

Legal questions cloud medical marijuana use

Ohio advocates hope to avoid mistakes of other states

‘Medical marijuana has been such a blessing for me,’ says Brandy Zink, a medical marijuana patient and advocate. Ms. Zink of Detroit uses the drug to help control her epilepsy.

THE BLADE/KATIE RAUSCH
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‘Medical marijuana has been such a blessing for me,’ says Brandy Zink, a medical marijuana patient and advocate. Ms. Zink of Detroit uses the drug to help control her epilepsy.

Matthew Abel, the founder and senior partner of Cannabis Council, PLC in Detroit, defend clients in marijuana cases throughout the state.

DETROIT — Brandy Zink stammers, repeating words over and over before she’s able to complete a thought. Sometimes she suddenly tastes or smells food.

It’s small things that signal the onset of her seizures.

“I have little, tiny seizures throughout my day; they’re barely noticeable. I might stutter and say a word five times in a row,” said the 36-year-old, who suffers from epilepsy. ”People think it’s what you’ve seen in a movie, or in real life where you’ve seen someone fall down and foam at the mouth. Many seizures are like a record player where the needle skips.”

The one thing that keeps the needle in the groove for Ms. Zink is marijuana. The drug has been a lifelong tool she’s used to quell the tremors, blackouts, and sense memories that plague her.

“It certainly keeps my muscle spasms and tremors to a minimum. If I am going to take prescriptions, I am going to have to take something that has a side effect,” said Ms. Zink, a medical marijuana patient. “With cannabis, there are no side effects. I can use different kinds for different things.

“It’s become a part of my life where I’ve used it for so long, especially since I have consistent access to it in Michigan. When I have consistent access, it’s almost like I forget I have epilepsy.”

That access remains a lightning rod of legal, legislative, and social debate in Michigan, where medical marijuana is legal, and in Ohio, where activists plan to put a constitutional amendment to legalize medical cannabis on the November, 2014, ballot.

“In Ohio, access to marijuana is there,” said Ms. Zink, who moved from Columbus to Detroit so she could use her medicine legally. “Columbus has some really great cannabis, but it is not legal under the state law so there is a criminal element to the distribution of it.”

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Michigan voters approved medical marijuana in November, 2008, with 63 percent in favor and 37 percent dissenting. That fact is where much of the clarity ends on the ballot measure turned law.

Police and prosecutors aren’t quite sure how to enforce some aspects of the law. Further definition has been provided by Michigan’s courts and legislature on marijuana dispensaries, transportation of the drug, and what constitutes a doctor/patient relationship. But pervasive questions linger.

“Law enforcement as a whole has been given a job that’s impossible to do,” said Arthur Cotter, the prosecuting attorney in Berrien County, Michigan. Mr. Cotter chairs the medical marijuana committee for the Prosecuting Attorneys Association of Michigan.

One of the largest questions posed to law enforcement is: How much marijuana can a patient or grower possess? Michigan law states that a patient may possess up to 2.5 ounces of usable marijuana, but it also allows a patient to possess more if it is medically necessary “to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition ...”

A similar clause is included for marijuana growers.

Questions also remain as to what form of marijuana the law applies to. Marijuana can be smoked, put into a drink, inhaled, ingested, or applied directly to the skin with oil or a balm. Amounts of the drug vary in each of its forms, and some exceed 2.5 ounces.

These gray areas leave police, prosecutors, and judges to decide what’s legal and what constitutes a crime.

‘This is a mess’

“This is a mess and it’s put law enforcement in an untenable position,” Mr. Cotter said.

The law is subject to interpretation, which widely varies from county to county in Michigan. Marijuana advocates said it’s easier to use the drug in Washtenaw County than Oakland County because of the liberal political and social climate around the University of Michigan.

Washtenaw County is home to Ann Arbor, which decriminalized less than 2 ounces of marijuana in 1972. Users caught with that amount or less are fined with a civil infraction. Steve Hiller, a spokesman for the Washtenaw County Prosecutor’s Office, said marijuana cases are not a priority and haven’t been for some time.

Activists described Oakland County as conservative, and one of the most strictly enforced areas in Michigan for medical marijuana users. The Blade left repeated messages with the Oakland County Prosecutor's Office during the course of reporting this story. Those calls were not returned.

“There is a lot of variety in enforcement throughout the state. Each county has its own prosecuting attorney and they have discretion to what cases they want to bring,” said Matthew Abel, a Detroit attorney who specializes in marijuana law. “Meanwhile, the prosecutor is an elected official and has to live in the community and has to ascribe to community standards.”

Mr. Abel hired Ms. Zink shortly after she moved to Michigan as his receptionist and secretary.

Karen O’Keefe, director of state policies for the Marijuana Policy Project, said opponents of medical marijuana would criticize the law no matter what. The project drafted Michigan’s law based on Hawaii’s and revamped it to fit within the state’s legal framework.

“In some of the areas you hear about being vague, everything to some extent is going to be open to interpretation,” she said.

Interpretation key

Interpretations of the law fluctuate from county to county in Michigan, but the problems that stem from it do not.

The Blade reached out to the 68 prosecutors in Michigan's Lower Peninsula, and of the 37 who agreed to talk, almost all said their offices handled cases in which the state’s medical marijuana law was exploited. Those cases often involved patients or growers who cultivated excessive amounts of marijuana, they said.

Ingham County Prosecutor Stuart Dunnings III said people who follow the letter of the law aren’t problematic. The people who use it as a front to sell marijuana on the black market or grow excessive amounts are the ones creating issues.

Those people often invoke the law’s gray areas as a defense, he said.

“We prosecute, but you have to understand there is a quirk in our law,” Mr. Dunnings said. “The law is horrible.”

State officials and law enforcement don’t have a good handle on who is using medical marijuana or how many marijuana plants are legally growing in the state. The law shields virtually all information about patients and caregivers and bars almost all state inspections of growing operations.

The law was engineered that way, Ms. O’Keefe said.

“If you just think about it, people who are sick, it’s very invasive to have somebody to come into your home,” she said. “The idea of enforcement people coming into your home — you don’t do that for any other medication.”

The Blade filed a Freedom of Information Act request seeking the ages and genders of medical marijuana patients and growers, but that request was denied. A subsequent appeal also was denied.

Aside from a report submitted each year to the Legislature by the Michigan Department of Licensing and Regulatory Affairs, no information is provided to the public as to who uses medical marijuana. That report gives a general overview of the number of medical marijuana patients and growers, the counties in which they are located, and the medical conditions that patients have.

According to the fiscal year 2012 report, Wayne, Oakland, and Macomb counties were the top three areas in which marijuana patients reside. The top three conditions people suffer from include severe and chronic pain, severe and persistent muscle spasms, and nausea.

Prosecutorial problems and a lack of information about marijuana users and growers aren’t the only issues that stem from the act. The state failed to assemble a review panel to assess what conditions could be aided by medical marijuana within a six-month window of the law’s passage, which is required by the act.

The panel did not convene until December, 2012.

The panel, which approved post traumatic stress disorder as a condition that could be aided by medical cannabis, did not have all the members called for under state law and was disassembled earlier this month. The decisions made under its purview have been declared null and void.

A mix of ordinances aimed at decriminalizing marijuana are working their way through the local governments of three Michigan communities: Lansing, Jackson, and Ferndale. Following in Ann Arbor's footsteps, five communities decriminalized possession of small amounts of marijuana in November, 2012: Detroit, Grand Rapids, Ypsilanti, Kalamazoo, and Flint.

Those movements culminated in April when a bill that would decriminalize possession of an ounce or less of marijuana was introduced in the Legislature. The bill’s primary sponsor, Rep. Jeff Irwin (D., Ann Arbor), said Michigan spends about $325 million each year enforcing marijuana laws. That funding could be allocated to education or road maintenance, he said.

“There are also practical reasons that move us in this direction, mainly that marijuana prohibition isn’t working,” Mr. Irwin said. “Here we are spending hundreds of millions of dollars on a project that isn’t working.”

According to marijuana seizure statistics from the U.S. Drug Enforcement Administration, marijuana arrests in Michigan increased 371 percent from 2003 to 2011. The DEA doesn’t track how many of those arrests — 140 in 2003 and 659 in 2011 — were related to medical marijuana operations. The Michigan State Police also do not maintain that information.

The black market

Arrests are bound to increase as the state cracks down on marijuana dispensaries, said Tim Beck, a marijuana activist dubbed the godfather of marijuana in Michigan. The state Supreme Court issued an opinion in February that ruled dispensaries cannot facilitate patient-to-patient sales and are a public nuisance.

“What’s going on now is it’s gone more underground and to the black market,” he said. 

“What was happening is the dispensaries would get their supply from the caregivers and growers who had more than they need. They’d get this product, mark it up, and sell it to patents who were going to a dispensary.”

“One can surmise that it’s going somewhere now.”

A bill introduced shortly after the Michigan Supreme Court decision would allow provisioning centers to distribute marijuana, essentially functioning as a dispensary under a different name. The main difference between a provisioning center and a dispensary is that patient-to-patient sales would not be allowed. The bill opens the doors to dispensaries, which have continued to thrive in spite of the Supreme Court ruling.

Much like the medical marijuana law, the bill bars virtually all state inspections. It does, however, allow municipalities to regulate them.

“What the bill attempts to do is create local control. I have to pass this politically, and sometimes I can come up with a better bill and will never pass it,” said Rep. Mike Callton (R., Nashville), the bill’s primary sponsor. “Local control is very appealing so it can get votes.”

The greening of Ohio is under way but marijuana advocates are taking a different approach than the one used in Michigan.

After failing to usher in various pieces of medical marijuana legislation during the 2000s, activists joined together in January to push forward a constitutional amendment that would legalize medical cannabis and hemp production.

The state approved the wording of The Ohio Rights Group’s amendment Thursday.

“We realize that 2013 is a long shot, and if somebody wants to show up with $20 million and says, ‘Do it,’ we'll do it,” said Mary Jane Borden, secretary and treasurer of the Ohio Rights Group. 

“I think that in 2014, it’s going to happen.”

The amendment contains a list of rights pertaining to medical marijuana and hemp, but doesn’t offer many specifics.

Those details would be hammered out by the Ohio Commission of Cannabis Control, which is called for in the amendment. The commission would be composed of voters, medical marijuana patients, or people eligible for it, and medical, state, and law enforcement officials.

Ms. Borden said the amendment is only meant as a starting point.

“We feel the minutia should be left to the commission and what we feel we’re trying to do is spell out the basic rights and that of the commission,” she said.

In order to make the November, 2014, ballot, the Ohio Rights Group needs to collect 385,000 valid signatures and come up with the funding to launch its campaign. Ms. Borden said the group has donors in line, but no major funding source has been acquired at this point.

“Like any political campaign, it comes down to money, money, and money,” she said.

Amending the state constitution could have unforeseen consequences, said Robert Mikos, a professor and medical marijuana law expert at Vanderbilt Law School.

In California, where voters amended the state constitution to allow medical marijuana in 1996, the courts rejected attempts by the Legislature to place limits on the amount of pot a patient can possess.

Clarity in the law is the only way Ohio can avoid the problems other states are experiencing, he said.

“There’s always risk in making a referendum like this through a state constitution. The risk is that if you make a mistake,” Mr. Mikos said. 

“For example, if the measure doesn’t consider some important factor or if it perhaps goes too far and legalizes too much, it becomes tougher to fix those mistakes down the line.”

Contact Kris Turner at:kturner@theblade.com, or 419-724-6103.