By: Kenneth Stecker
Traffic Safety Resource Prosecutor
On November 4, 2008, Michigan voters passed Proposal 2008-01: Medical Marihuana Act. Michigan is the 13th state that has passed laws legalizing medical marihuana.
• Highlighted below is information regarding the Act:
• The Act took effect on Thursday, December 4, 2008.
• The Michigan Department of Community Health (MDCH) has until April 4, 2009, to adopt rules to implement the Act. If MDCH fails to adopt rules within 120 days, a qualifying patient could begin an action in Ingham County Circuit Court to compel MDCH to perform mandated actions.
• The Act requires the MDCH to establish an identification card system for patients qualified to use marihuana and individuals qualified to grow marihuana.
• The Act permits a physician to issue a written certification stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.
• The Act allows registered individuals to possess 2.5 ounces or less of usable marihuana and no more than 12 marihuana plants kept in an enclosed, locked facility.
• The Act permits unregistered patients and primary caregivers to assert medical reasons for using marihuana as an affirmative defense to any prosecution involving marihuana.
• Although the Act prohibits the operation of any motor vehicle while under the influence of marihuana; it does not make reference to Michigan’s current law, which prohibits a person from operating a vehicle with any amount of Schedule 1 controlled substance (including marihuana) in his/her system, regardless of how little the amount or how long it has been in the system.
• The Act does not specify how patients and caregivers would acquire marihuana for medical purposes, but it allows for the assertion of an affirmative defense (even for unregistered patients and caregivers) for the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or marihuana paraphernalia for medical use.
• The Act prohibits smoking marihuana in public places, although it does not define what would constitute a public place.
• Although the Act will not legalize marihuana use for recreational purposes, it may be difficult for law enforcement to differentiate between legal and illegal uses of marihuana. Therefore, it may be necessary to train state and local enforcement officials on ways to properly identify medical marihuana patients.
It should be noted that the Act will not preempt the Federal Controlled Substance Act and will not have any effect of federal laws relating to the use, possession, and/or distribution of marihuana.
Law enforcement officers and prosecutors will eventually be confronted with these and other issues once the Act goes into effect. PAAM will continue to assist prosecutors throughout the state once these issues come to light.
On January 5, 2009, a public hearing was held on a set of draft rules prepared by MDCH. As of February 1, 2009, MDCH has not implemented any rules.
