Schmidt Law Services Blog

Lisa Schmidt

What's Wrong With the Michigan Medical Marihuana Act

shutterstock_154035038For patients suffering certain debilitating illnesses and symptoms, medical cannabis is an idea that’s time could not have come soon enough. It stands as an better alternative to heavy and often addictive pharmaceuticals with strong negative side effects. But is the Michigan Medical Marihuana Act (MMMA) more trap than blessing?

A recent review of the MMMA and those cases interpreting it shows that what was originally a weakness in the law has become a catch 22 situation. The problem is that, unlike similar statutes in other states, the MMMA doesn’t provide any legal way for qualified patients to get marijuana in the first place. It protects a patient’s

“acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana”

all of which is called “medical use.” Similar protections are available for registered caregivers. But what the statute doesn’t do is protect the person delivering the marijuana to the patient or caregiver.

Originally, it was thought that the acquisition, delivery, and transfer portions of medical use would provide the necessary protections. Under that interpretation, if one registered patient transferred his marijuana to another registered patient, then their respective immunities would cover the entire transaction.

But this year in State v. McQueen, the Michigan Supreme Court ruled that the rights granted by the MMMA were personal and only applied to actions done for the medical benefit of that particular registered patient. Since when a patient gives away marijuana to another person she is not doing for her own medical benefit, but for the other person’s, the Court found that patient-to-patient transfers are illegal.

McQueen has all but eliminated any legal source for medical cannabis. While the MMMA protects the recipient, there is nothing in the statute as interpreted to cover the distributor. Thus for anyone to get marijuana, someone has to break the law.

And McQueen, together with mother nature, lays another trap for qualified patients. The MMMA allows patients to possess 12 live marijuana plants but only 2.5 ounces of usable marijuana.  12 plants will produce more than 2.5 usable ounces in a harvest. Even when a patient staggers the cycles of his plants, at some point he will have a bountiful harvest that will put him over the legal limit.

But under McQueen there is no legal way for the patient to get rid of her overage. She literally cannot even give it away. The only alternative is to trash it, destroy it, or smoke it. By excluding any legal way for qualified patients to obtain or distribute medical cannabis, the MMMA and the Michigan courts have laid a trap for patients, and the only logical way out is for them to consume more marijuana.

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