The Odor of Marijuana and Warrantless Searches of Automobiles: Where Do We Stand?

In a recent decision out of the Ninth Circuit Court of Appeals, United States v. Gray, the odor of marijuana in a motor vehicle could provide the probable cause necessary for a warrantless search in a state that has legalized adult use of marijuana. More states across the Country are leaning toward this type of approach in determining the reasonableness of similar searches.  Michigan, which is now a recreational state, will most likely be looking to other states that have recreational laws for guidance on how to decide these types of issues.

In Gray, two occupants of a vehicle were traveling on a downtown street without any lights on. During their progression, they were stopped by county sheriff’s officers. Upon questioning of the occupants, the occupants denied smoking marijuana in the car but the officers believed they were “smoking buds” while the vehicle was operable.  In Nevada it is illegal to, “smoke or otherwise consume marijuana in a public place,… or in a moving vehicle.” Nev. Rev. Stat. § 453D.400(2). The officers then called in a drug detection dog to search the vehicle. The drug detection dog alerted to the vehicle and a search was conducted, finding a firearm in the backpack of one of the occupants. The trial court (a Nevada court) never made the distinction regarding the difference between the odor of burnt or unburnt marijuana thus it appears that the appellate court was left a set of facts pertaining simply to the smell of marijuana.

What does this mean for us here in Michigan? Our law allows for the possession of 2.5 oz. of flower marijuana and who are 21 years or older. “I believe that the case may have had a different outcome had the trail court made a distinction regarding whether or not the odor was of burnt or unburnt marijuana.  Had the smell been of unburnt or fresh marijuana the evidence may of very well been suppressed and the charges dismissed,” says attorney Joshua Covert of the Michigan Cannabis Lawyers.  So long as there isn’t the smell of burning or burnt marijuana in a moving vehicle or while operating, there shouldn’t be probable cause to warrant a search. However, it is important to stay in touch with the changing laws and regulations regarding Fourth Amendment searches and seizures. At the Michigan Cannabis Lawyers, we strive to stay ahead of the pitch and always ready to face a challenge.

 

Michigan Marijuana Microbusiness

Similar to microbreweries for the production and sale of alcohol, marihuana microbusinesses are independently owned businesses that grow, process and retail sale their craft goods to those 21 years of age or older. Although limitations exist on production quantity and outlet ability, marihuana microbusinesses are well poised to compete in Michigan’s recreational landscape.

The Michigan Regulation and Taxation of Marihuana Act (MRTMA) was passed by voter initiative in late 2018. The state is likely to start accepting applications for marihuana microbusiness in September, 2019. For those who want to turn their passion into a fully integrated business operation without the need for large-scale capital contribution, the marihuana microbusiness may be the perfect avenue to pursue.

 

If you’re looking to break into the cannabis market and want to strategically explore your options, give the Michigan Cannabis Lawyers a call at (517) 512-8364.

Michigan Politicians Support Legalization at 2019 Hash Bash

The 48th Annual Ann Arbor Hash Bash festival took place April 6, 2019 and was an overwhelming success in the eyes of City Council Members. Big names in Michigan politics attended and spoke at the event.

To kick off the rally a recorded message from Gov. Gretchen Whitmer was played, expressing pride that recreational marijuana has been legalized in Michigan. U.S. Rep. Debbie Dingell made an appearance where she openly admitted to never smoking marijuana to the supportive crowd of marijuana enthusiasts. She followed her confession by stating that she believes recreational marijuana should be legalized and recognizes the shift that has happened in the mindset of people nationwide when it comes to cannabis use. “We have got to change the laws to go with what is happening across America,” Dingell said. “We’ve got to decriminalize marijuana and get people out of jail that are in jail.”

This indicates a clear step forward in the normalization of marijuana use, both medically and recreationally in Michigan. Nearly every level of government was represented at the festival, including First Ward City Council Members, County Commission, State Representative, State Senator, and prepared statements from Gov. Whitmer and Attorney General Dana Nessel were also played. City Council Member, Anne Bannister told the attendees that Ann Arbor leaders are examining social-use policies in cities like San Francisco, Denver, and West Hollywood to allow on-site consumption of cannabis at certain establishments. “So stay tuned,” said Bannister.

 

New Hemp Program Allows for Licenses In Time For 2019 Planting Season

The State of Michigan Department of Agriculture & Rural Development (MDARD)recently announced a pilot program for industrial hemp.  This new program comes after President Trump signed the 2018 Federal Farm Bill into law which provided a framework for the states to create and regulate  hemp industries.  Michigan’s hemp pilot program is great news for those who were hoping to be able to plant a crop this spring.  The pilot program will have two different licenses available.  One license will be required for those who choose to plant, propagate, grow cultivate or harvest hemp, the other license will be required to process,handle, broker or market hemp.

If you are interested in obtaining either license, it is important that you start by visiting the MDARD website . There you will see a list of dates (4/23, 4/24, 4/29, 4/30) where MDARD is offering a series of on-site licensing events on the campus of Michigan State University.  Prior to attending the event, interested participants will need to call MDARD customer service at 1-800-292-3939 and  reserve a spot.  It is also required that applicants have the proper applications (Hemp Grower Application, Hemp Processor Handler Application) filled out before attending the event.  MDARD has also provided application checklists (Hemp Grower Checklist, Hemp Processor Handler Checklist)  for applicants to ensure they are properly prepared for the licensing events.   You will see each of the applications requires a Federal identification number. If you are applying as an individual your social security number will work, but if you are applying as an entity such as a corporation, LLC or  LLP, you will need to have legally created your entity and been issued an EIN  (Federal Employer Identification Number) .  If you are unsure how to create your business entity or are unsure which entity is best for you, we suggest calling our office (517-512-8364) and scheduling a consultation to discuss the options available to you.

Can you license you existing marijuana brand or recipe? Bureau of Marijuana Regulation says yes.

On March 21, 2019 the Bureau of Marijuana Regulation (BMR) released an advisory bulletin regarding intellectual property now allowing licensed facilities to use another company’s brands or recipes. Michigan medical marijuana licensed facilities can now enter into licensing and royalty agreements based on the number of units sold. The BMR will require a copy of the contract which must include the names of the individuals involved. This is good news for companies that have established brands and or unique recipes as they may now be able to capitalize on the brand or recipe without obtaining a license under the Michigan Medical Marijuana Facilities Licensing Act (MMFLA). If you have questions regarding either licensing a brand or obtaining an established brand call the Michigan Cannabis Lawyers at 517-512-8364.

smoking marijuana impair ability to drive

Does smoking marijuana impair your ability to drive?

The Michigan Impaired Driving Safety Commission was created and given the task of conducting research in order to recommend a scientifically supported threshold of 9-THC. This threshold, much like the .08 blood alcohol level threshold, would indicate to Michigan police whether or not a cannabis user is considered impaired while driving.

Similar studies have been done nationwide with varying results, yet most were unable to come to an absolute threshold that indicates impairment. A 2017 study involving driving simulators and instrumented vehicles revealed that cannabis-impaired subjects typically drive slower, keep greater following distances, and take fewer risks while driving than when driving sober (Compton, 2017). It was believed during this study that this behavior was due to drivers attempting to overcompensate for the subjective effects of using cannabis. In comparison, a 2013 report found an estimated 26% increase in crash risk when the driver had used cannabis (Elvik, 2013); in 2012 a study concluded ingesting cannabis increased the risk of a crash by a factor of 1 to 3 (Schulze et al., 2012); and in 2017 the National Academies of Sciences concluded that there was no substantial evidence of a statistical association between cannabis use and increased risk of a vehicle crash but that there was an increased risk of about 22%-36%.

A percentage of added risk is not enough to determine a specific threshold of THC in the system that would render a driver impaired. This threshold has been difficult to pin down due to how 9-THC is processed through the body. While THC in one’s system goes through a rapid elimination process once ingested the effects on the central nervous system are often delayed. This creates a window of time where the user may not feel the full effect of ingesting cannabis yet the levels of THC in their system are already starting to lower. A test in 2005 showed that 20 minutes after smoking cannabis the user’s 9-THC blood levels were significantly lower than when tested right after smoking (Papafotiou et al., 2005).  

 

Conclusion 

The Safety Commission concluded that there is no scientifically supported threshold of THC that would directly indicate a driver is impaired. Therefore, the Commission recommends the State of Michigan to utilize roadside sobriety test(s) to determine whether a driver is impaired by cannabis instead of blood tests.

 

If you are facing a criminal charge for driving under the influence of marijuana call Michigan Cannabis Lawyers at 517-512-8364.  

 

Michigan Governor Moves to Abolish Medical Marijuana Licensing Board

Today, March 1, 2019, Gov. Gretchen Whitmer issued an order effectively abolishing the Medical Marijuana Licensing Board. The Marijuana Regulatory Agency will take its place and oversee the regulation of both medical and recreational marijuana licensing. Gov. Whitmer was quoted saying, “All elements of this Agency have been designed to serve and better protect Michigan residents, and I’m eager to have a unified effort across state departments to make sure this process runs effectively and efficiently.”

The current plan is to have an Executive Director that is appointed by the Governor run the agency. The director would be limited to a 4 year term. The Agency would also be required to hold 4 public hearings each year to hear complaints and provide information to the public. This order will not go into effect until April 30, 2019. Until then, Republican legislators have 60 days to decide whether to object, veto, or accept the order.

The Michigan Cannabis Lawyers are excited about this new development in Michigan and are hopeful of the positive impact this change will make on the industry. If you are interested in obtaining a license for a marijuana facility or have questions about how the new order may affect you or your prospective business, call the Michigan Cannabis Lawyers at 517-512-8364.

So if you eat enough turkey, that would be classified as a drug and they could be arrested, correct?

This is a excerpt from a recent trial where my client was charged with a misdemeanor for driving under the influence of marijuana.  After trial my client was found not guilty.  The cross examination of the DRE (Drug Recognition Expert) officer played a huge part in the result we achieved. To read the officers answer to this question and where it lead click here:

Drugged Driving Trial Excerpt

Recent Changes to MMFLA May Affect Recreational Applicants in the Future

Since recreational marijuana use has been legalized there have been attempts made by those in office to amend the newly passed initiative as well as the existing medical marijuana laws.

A recent House Bill was proposed and struck down that took aim at home cultivation and marijuana micro-businesses. House Bill 1243 was proposed by Republican Senator Arlan Meekhof on November 29. This Bill aimed to ban home cultivation by adults, which was approved by Michigan voters as part of Prop 1. Prop 1 provided in part that those over the age of 21 that are residents of Michigan may legally grow up to 12 marijuana plants in their home. In addition, HB 1243 attempted to derail micro-business licenses altogether. Marijuana micro-businesses are allowed to cultivate up to 150 marijuana plants, process marijuana, and conduct retail sales of marijuana to individuals 21 years or older.

The proposed bill also attempted to lower the excise tax on retail sales of marijuana products from 10% down to 3%, change how the tax revenue would have been distributed and create a licensing board similar to that used in medical marijuana facility licensing. This bill died on December 13, 2018.

Following the failed bill, Senator Meekhof then proposed amending the Medical Marihuana Facilities Licensing Act. Senate Bill 1262 was passed by exiting governor Rick Snyder on December 28, 2018, allowing minor investors in medical marijuana businesses to no longer have to undergo financial scrutiny during the application process. Prior to this bill passing, any investors involved in a medical marijuana business holding 1% or more equity were subject to a criminal and financial background check completed by LARA. This bill now allows an investor with a less than 10% ownership interest in the business, and who does not exercise control over any management aspects of the company to not have to complete a financial check. However, a criminal background check is still required.

Additionally, this bill amended the definition of who is considered an applicant during the application process. The MMFLA previously required that a person with any direct or indirect ownership interest in the business must go through a background check, the results of which could then disqualify the applicant. The passed bill no longer considers anyone with a less than 10% ownership interest in the company an applicant. Applicants still include spouses of each partner, limited partners, member or shareholder holding a substantial ownership interest.

The definition was further amended to allow transfers of ownership interest in the company so long as it is approved by the licensing board prior to the transfer and the transferee is considered an applicant under the new definition. This change would allow publicly traded corporations to operate more efficiently when shares are publicly traded so long as the traded amount is less than 10%.

Another notable change in the newly passed bill includes the added crimes related to operating a marijuana facility without a valid license. Beginning June 1, 2019, if a person violates that section by operating a marijuana facility without a license or on a revoked, suspended or lapsed license may be found guilty of a misdemeanor and face a fine not less than $10,000 or more than $25,000, or imprisonment of not more than a year, or both. If the violation of this section results in the death or serious injury of someone then the violator may be charged with a felony punishable by a fine or imprisonment for not more than 4 years.

A minor change made by the bill also allows a licensee to not be required to use a third party inventory system only if the statewide monitoring system is capable of allowing a licensee to access and enter information themselves.

All the aforementioned changes only apply to those applicants that submit an application for a medical marijuana license on or after January 1, 2019. If an applicant has already filed their application before this date these changes do not affect them.

While this bill focuses on medical marijuana sales in the state, its effects do reach into recreational marijuana in Michigan as well. The first recreational licenses to grow, manufacture and sell marijuana, excluding class A grows and micro-businesses, will be awarded to those who already have an operational medical facility license. The impact of these changes will be felt throughout the Michigan marijuana industry as more licenses are approved.

The Michigan Cannabis Lawyers are excited about the prospects of marijuana micro businesses and the niche markets that will develop in Michigan. If you’re interested in starting a marijuana microbusiness or have questions about how the new laws may affect you, call the Michigan Cannabis Lawyers at 517-512-8364.

 

Michigan Marihuana Laws – Home Cultivation and Micro Business

A recent House Bill was proposed and struck down that took aim at home cultivation and marihuana microbusinesses. House Bill 1243 was proposed by Republican Senator Arlan Meekhof on November 29. This Bill aimed to ban home cultivation by adults, which was approved by Michigan voters as part of Prop 1. Prop 1 provided in part that those over the age of 21 that are residents of Michigan may legally grow up to 12 marihuana plants in their home. In addition, HB 1243 attempted to derail micro business licenses altogether. Maruhuana micro business are issued a micro license, which permits the licensee to vertically integrate the cultivation of up to 150 marihuana plants, processing of marihuana, and retail sale to individuals 21 years or older.

The proposed bill also attempted to lower the excise tax on retail sales of marijuana products from 10% down to 3%, change how the tax revenue would have been distributed and create a licensing board similar to that used in medical marijuana facility licensing. This bill died on December 13, 2018 and has, for now, alleviated some concern regarding a rewrite of the law currently in effect.

The Michigan Cannabis Lawyers are excited about the prospects of marihuana micro businesses and the niche markets that will develop in Michigan. If you’re interested in starting a marihuana microbusiness or have questions about how the new laws may affect you, call the Michigan Cannabis Lawyers at 517-512-8364.