Throughout the nation, there are 23 states where medicinal use of marihuana is legal, including Michigan. While we are seeing a growing increase of legalization of marihuana in other states, we are also seeing a growing concern of potential legal consequences that qualifying patients or care providers need to be aware of.
For many patients, the Michigan Marihuana Law enacted seven years ago has created the respite they desperately needed to handle the pain they feel on a day-to-day basis or to deal with the side effects of chemotherapy in cancer patients. Yet, what some do not realize is that with the lawful use of medical marihuana, patients and caregivers often face restrictive dilemmas in certain legal areas and confusing twists and turns in legal proceedings.
Under the Michigan Medical Marihuana Act, (hereinafter MMMA), MCL 333.26424:
“A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, twelve marihuana plants kept in an enclosed, locked facility. Any incidental amount seed, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.”
MEDICAL MARIHUANA AND CRIMINAL LAW
In the area of criminal law, people have been arrested in the past while possessing a valid registry identification card certifying them as “qualifying patients” under the MMMA. These individuals have, through their legal counsel, mounted affirmative defenses and immunity claims.
One such case is People v. Hartwick, 303 Mich. App 247 (2013): Richard Hartwick was arrested and charged with illegally growing and possessing marihuana with the intent to deliver it. Hartwick was a registered qualifying patient under MMMA and served as his own primary caregiver as well as the primary caregiver for five other registered qualifying patients under MMMA. The police, acting on a tip, confronted Hartwick and conducted a consented search of his home where a number of marihuana plants were confiscated and approximately 3.69 ounces of marihuana were recovered. Hartwick moved to dismiss the charges through his counsel, claiming immunity from prosecution under section 4 of MMMA and section 8 of the MMMA because he held a registry identification card under MMMA.
To establish immunity under § 4 of the MMMA, the defendant must prove four elements by a preponderance of the evidence: (1) the defendant possessed a valid registry identification card; (2) the defendant complied with the requisite volume limitations the MMMA statute; (3) the defendant kept any marihuana plants in an enclosed, locked facility; and (4) the defendant was engaged in the medical use of marihuana.
Under the MMMA, a defendant is presumed to be engaged in the medical use of marihuana if the defendant possesses a valid registry identification card and is not in violation of the volume limitations.
Hartwick was remanded to the lower court on the second 4 immunity defense but the affirmative defense under section 8 was dismissed by the Court since it held that that the defendant failed to provide evidence of a bona fide physician-patient relationship for himself and his patients, as well as evidence that a physician conducted a full assessment of his and his patients’ medical histories and current medical conditions, and he failed to show that a physician had determined that he and his patients had debilitating medical conditions that would likely benefit from the medical use of marijuana. Hartwick creates an “unreasonable” burden for caregivers.
Hartwick is one of ten other cases where the Michigan Supreme Court found that many inconsistencies in the law regarding the immunity provisions have caused confusion for medical marijuana caregivers and patients, law enforcement, attorneys, and judges.
MEDICAL MARIHUANA AND CHILD CUSTODY AND PARENTING TIME
While under the MMMA, “[a] person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” MCL 333.26424(c).
We are seeing a growing trend of cases where one party seeks to discredit another by asking the party to admit that he or she is a medical marihuana user under the MMMA and then using that “admission” to create an argument that the medical marihuana user is unfit.
Family Law cases under MMA are Fact-Specific
To change custody or parenting time, a person must show that either there is “proper cause” to change custody or a parenting time order and the grounds for change must be relevant to at least one or more of the 12 best interest of the child factors enumerated by case law (i.e. love and affection, capacity to provide guidance, moral fitness of party, mental health of party, etc.) or that there is a change of circumstances such that the conditions surrounding the custody or the parenting time of the child have changed significantly to have a detrimental effect on the child.
Can the Judge use evidence of marihuana use in deciding or changing custody or parenting time? Probably.
Factors Courts May Consider:
- Age of the child – Toddlers and Adolescents. Toddlers get into everything and demand an alert parent. With preteens and adolescents, the court might be concerned about psychological influence and access.
- Health-related risks for children.
- Smoking or growing marihuana in a home where children reside could create legal issues. Prohibitions against smoking tobacco apply similarly to the act of smoking marihuana in that an argument could be made that second hand smoke could be injurious to children.
- Lab tests can also be performed for second-hand smoke (evidencing use in front of the minor child) and to segment a hair follicle sample to determine both amount and timeframe for use.
- Do not smoke in front of the child.
- Clearly label medicinal marihuana jars and securely store away. Keep your marihuana in a safe and child-proof location. Only a qualified user should have access.
- Possess or cultivate as little marihuana as your condition allows if you live in a home with a child.
- Use discretion when medicating and do not do so when your child is present. Consider medicating after a child is in bed or when you will not interact with him or her for several hours.
- Do not do anything negligent with marihuana in your system.
- Never smoke marihuana while supervising your children at the playground.
- Never drive with your children after medicating.
- Try to have one parent or adult present who is not medicated at all times.
- Keep a journal regarding the precautions you have taken in case you are called by a court or protective services.
MEDICAL MARIHUANA AND EMPLOYMENT
The MMMA also contains certain provisions relative to employment. The MMMA does not require an employer “to accommodate the ingestion of marihuana in any work place or any employee working while under the influence of marihuana.” MCL 333.26427 (c)(2). Nor does the MMMA permit any person to undertake any task under the influence of marihuana when “doing so would constitute negligence or professional malpractice.” Id.
One case on point is Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914 (WD Mich 2011), aff’d, 695 F3d 428 (6th Cir 2012). In this case, the federal court “rejected plaintiff’s claim that his termination under the employer’s drug use policy for testing positive for marihuana violated the MMMA”. The Court reviewed the MMMA’s purpose and provisions, and stated that “the act provides a potential defense to an action by the state but does not regulate private employment, protect employees from discipline for use of medical marihuana, or require employers to accommodate the use of medical marihuana outside of the workplace”.
Court decisions in several other states with medical marihuana statutes have also concluded that those states’ disability statutes did not require the employer to accommodate an employee’s use of marihuana.
In the area of unemployment, benefits cannot be denied after an employee has been terminated for failing a drug test in the absence of evidence to suggest the positive drug tests were caused by anything but medical use of marihuana.
THE MMMA’s LIMITED PROTECTIONS
While the MMMA statute offers some protection, it is not without limits. The court may review evidence to determine whether a person’s conduct related to marihuana was for the purpose of treating or alleviating the person’s debilitating medical condition or symptoms associated with the condition. MCL 333.26424(d)(2). If the person’s use or possession of marihuana is not for that specific therapeutic purpose, and thus not “in accordance with” the MMMA, the person is not entitled to invoke the protections offered.
Cases where defenses have failed are when the patient is tested for the amount of marihuana used and their amounts exceed the therapeutic level and/or constitute overuse.
While medical marihuana usage may be legal in Michigan, keep in mind that it remains unlawful under federal law.
Each case is very fact-specific. Please consult with an attorney if you have any legal questions in this area.