August 10, 2018 – LARA released today an advisory bulletin on the topic of THCa “diamonds” – or isolate crystals – and their concerns with the safety of the creation process for these products. According to the BMMR, its observations of the creation process of THCa diamonds in Michigan raised safety concerns surrounding the cycle of pressurizing and venting containers to remove unwanted solvent gases during the THCa formation process.
The Michigan Court of Appeals released a published opinion that defies logic and removes the availability of an immunity defense under section 4 of the MMMA (MCL 333.n26424) when caregivers possess unusable marihuana. What is unusable marihuana you ask? That would be any marijuana that doesn’t meet the definition of either marihuana plant or usable marihuana. A marihuana plant is defined in MCL 333. 26423(g) and MCL 333.2642(j) as any cannabis plant that is living and either has viable roots or is in a growing medium. Usable marijuana is defined in MCL 333.26424(n) as the “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant”. Based on these two definitions, unusable marihuana is essentially flower and leaf that is not dry.
This means that if patients or caregivers cultivate marihuana they will not be immune from arrest or prosecution under section 4 of the MMMA. If law enforcements finds you in possession of undried and therefore unusable marihuana you can be arrested and prosecuted and will have to rely on the affirmative defense contained in section 8 of the MMMA (MCL 333.26428) in order to avoid a conviction. A section 8 affirmative defense places the burden on the defendant to prove a valid defense. If charged with a crime it will be your burden to prove to the court that you and your patients had bona-fide patient physician relationships, that the marihuana possessed was a reasonable amount to prevent an uninterrupted supply, and that the marihuana was for medical use. Since proving a defense in court can be difficult, it is important to hire an attorney who has experience presenting defenses under section 8 of the MMMA. Call the Michigan Cannabis Lawyers at 517-512-8364 to talk about how this case will affect you and your grow.
Is CBD marijuana?
Cannabidiol (CBD) is one of the cannabinoids found in marijuana. Over the last few years CBD has dramatically increased in popularity to treat a wide variety of ailments. CBD has been attributed to helping those that suffer from chronic pain, epilepsy and several other disorders and diseases. CBD is often used in place of the more well known THC (delta-9-tetrahydrocannabinol) because CBD doesn’t possess the psychoactive effects commonly associated with THC. Because CBD doesn’t have the psychoactive effects of THC and because it is often associated with hemp, CBD products have recently become readily available at health food stores, gas stations, pet stores, grocers and through reputable online shops such as amazon.
The acceptance that CBD products have had in the mainstream market has been noticed by Michigan’s Department of Licensing And Regulatory Affairs (LARA) and just last week they issued an advisory bulletin stating in part that “the possession, purchase, or sale of marihuana or any marihuana product – including CBD – must be done in compliance with the MMMA and MMFLA.” LARA came to this decision by analyzing the current definition of marijuana contained in the public health code (MCL 333.7106). Marijuana is currently defined as:
all parts of the plant Cannabis sativa L., growing or not; the seeds of that plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. Marihuana does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from those stalks, fiber, oil, or cake, or any sterilized seed of the plant that is incapable of germination. Marihuana does not include industrial hemp grown or cultivated, or both, for research purposes under the industrial hemp research act.
This definition clearly does not include the mature stalks of the plant, fiber produced from stalks, oil or cake made from seeds of the plant, and any other compound made from the mature stalks. Also excluded by definition is industrial hemp grown or cultivated under the industrial hemp research act. (IHRA) To determine that CBD is and always is marijuana, LARA had to first determine that cannabinoids are not found in the seeds or stalks of the marijuana plant as substance derived from seed or stalk of the marijuana plant could be excluded under the definition of marijuana in MCL 333.7106. LARA then looked to the industrial hemp research act and determined that IHRA does not allow for the sale or transfer of hemp. So, according to LARA all CBD tranactions must be ddone under either the Michigan Medical Marihuana Act (MMA) or the Marihuana Facility Licensing Act (MMFLA).
If you have any questions regarding CBD and its legality please call the Michigan Cannabis Attorneys at The Covert Law Firm. 517-512-8364.
Michigan Marijuana Licensing Extension May 30, 2018
The department of Licensing And Regulatory Affairs (LARA) issued new emergency rules through the Bureau of Medical Marihuana Regulations (BMMR), which will help ensure medical marihuana patients will continue to have safe access to their medicine.
Those who have no legal right to possess or consume marihuana face what’s commonly referred to as Michigan’s “zero tolerance” law, meaning that a prosecutor only needs to prove that at the time of driving, you had the presence of THC in your system, regardless of your driving performance.
It’s important to note, however, that the Michigan Supreme Court, in People v. Feezel, No. 138031 (June 9, 2010), determined that 11-carboxy-THC, a metabolite of THC, is not counted against you for the “zero tolerance” law. Currently, the detection threshold at the Michigan State Police Toxicology Unit is one ng/ml of THC. That’s one billionth of a gram of active THC per milliliter of blood.
Interestingly, if you have a medical marihuana card, it must be shown that you were driving under the influence of marijuana to be convicted of operating while intoxicated or “drugged driving.”
Section 7 of the MMMA outlines the specific limitations in which a patient or caregiver will fall outside the framework and not be afforded legal protection under the MMMA. MCL 333.26427(4) states that the Medical Marihuana Act does not permit any person to, “operate, navigate, or be in actual physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana.” While some states have developed internal limits of THC for patients while driving, Michigan has yet to impose a nanogram limit for internal possession of marihuana while driving for medical marihuana patients. So, the only way a patient can be convicted of driving under the influence of marihuana is to show that one’s driving ability was substantially lessened because of the presence of THC in their system.
If you happen to find yourself having to deal with a criminal charge for driving under the influence of marijuana, don’t hesitate to reach out to ask some questions and talk about your case.
Convictions under the Michigan Motor Vehicle Code remain on your criminal history indefinitely, and you shouldn’t go down without a fight.
Call the Michigan Cannabis Lawyers at 517-512-8364.
On March 23, 2018, The Cadillac News published an editorial regarding the legalization of marijuana in Michigan. The editorial featured an anti-legalization piece written by Missaukee County Sheriff Jim Bosscher and a pro-legalization piece written by Michigan Cannabis Lawyer Joshua Covert.
Thursday, May 3rd the Michigan Marijuana Facilities Licensing Board met and approved all three of the pre-qualification applications that were presented.
Two of the applications passed unanimously and the other passed on by a 4-1 vote with Pickard being the only vote for denial.
Illinois Senate Bill 336 was passed by a staggering 44-6 vote. The measure is intended to allow flexibility in obtaining a medical marihuana in the state of Illinois by recognizing the use of cannabis as medicine in the fight against the opiod crisis.
As amended, the bill allows persons with an active prescription for opiods to have legal access to medical marihuana as an alternative medicinal option for palliative relief. Persons who qualify will also be able to apply for a medical marihuana card. The medical marijuana program in Illinois is rather restrictive in terms of qualified applicants. Currently, Illinois has issued approximately 30,000 cards to its residents.
The expansion and formal recognition of the use of marijuana as medicine in Illinois something to take note of as many states continue to progress in their efforts to regulate medical marihuana. The bill heads to the House for approval.
Illinois is not the only state seeking to expand the availability of medical marihuana. Michigan has introduced a list of 22 proposed medical conditions to be added and recognized under the Medical Marihuana Act as qualifying conditions. The list includes anxiety, depression, diabetes, panic attacks, and a myriad of other medical conditions for approval consideration. The Review Panel is scheduled to make their recommendations to the Department Director at a public meeting on May 4, 2018 in Lansing, Michigan.
For those who are committed to staying up-to-date on Michigan’s marijuana laws, call (517) 512-8364 to contact the Michigan Cannabis Lawyers.
This case is a court of appeals case in which a conflict between a local ordinances and medical marijuana laws were at issue. The Charter Township of York ordinance was found to have violated the protections provided by the Michigan Medical Marihuana Act(MMMA). The Charter Township of York started the legal proceedings by seeking a declaratory judgment which would have prevented the Defendants from growing their medical marihuana because it violated the local home occupation ordinance and the local ordinance regulating medical marihuana grows.
The issues the Charter Township of York had with the marihuana grow are that it violated the home occupation ordinance because the registered caregiver (the person possessing and cultivating the marijuana plants) did not live at the address and the grow was an outdoor building and not attached to the main residence. These were both violations of the home occupation ordinance. Further, the Charter Township of York also had passed a local ordinance to regulate medical marihuana caregivers. This ordinance did not allow outdoor grows and required all necessary permits to be obtained.
The trial court did not grant the declaratory judgement and held that the local ordinance directly conflicted the MMMA. This meant that the local ordinances as applied in this case were not applicable to local residents who were registered qualifying caregivers under the MMMA.
The Charter Township of York appeal this decision to the Michigan Court of appeals and argued that the zoning law “permitted it to regulate medical marijuana and restrict registered caregivers’ marijuana growing to indoors in areas zoned residential” Charter Township of York v. Miller, 335344, 2018 WL 472187, at *2 (Mich. App. Jan. 18, 2018).
The Michigan Court of appeals in a published decision disagreed with the Charter Townships arguments and the MMMA was ruled to have preempted the local ordinance. The MMA clearly states that “A person 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 providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana” (Mich. Comp. Laws Ann. § 333.26424 (West)).
The result in this case is that only the regulations contained within the Medical marihuana act will apply to your grow. The home occupation ordinance in this case was void as applied to MMMA caregivers and patients and preempted by the MMMA. The regulations prohibiting outdoor grows or growing in unattached buildings was also preempted by the MMMA. The defendants were though required to abide by and obtain the required permits for the construction code and building permits.
This case is important for all caregivers because many local municipalities are creating local ordinances that conflict with the MMMA. If your local township has a local ordinance that you believe conflicts with the MMMA, call the Michigan Cannabis Lawyers at 517-512-8364.
Marijuana attorney Joshua Covert was recently interviewed by the Lansing City Pulse in the annual 4/20 edition. The article discusses his work as a Cannabis Lawyer and how he fights the drug war. Read the article here.
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