06/21/2013 11:13 am ET Updated Aug 21, 2013

Medical Marijuana Absurdities in Michigan: Patients Can't Share


Two stories popped up today from the state of Michigan that remind me of the inevitable tragic absurdities we get by trying to separate patients from "criminals." Wrap your mind around these latest examples of legal bureaucracy facing sick people who just want to use marijuana under the Michigan Medical Marihuana Act (MMMA).

In Nashville, Michigan, there was this patient named Tony Allen Green.  Tony had a valid patient registry card.  Tony had less than 2.5 ounces of marijuana on him, as allowed by law.

Tony has a friend named Al Thornton.  Al was a patient who just applied for a valid patient registry card.  However, under Michigan law, after 20 days his application (along with his doctor's recommendation to use cannabis medically) becomes just as valid as a registry card.

Tony, a legal patient, gave some of his marijuana (less than 2.5 ounces) to Al, a legal patient.  Somehow, police become involved.  They do not arrest Al, for he is now holding less than 2.5 ounces of marijuana, but they do arrest Tony, for giving Al less than 2.5 ounces of marijuana.

Now, isn't that silly?  Tony can sit around puffing joint after joint of his 2.5 ounces.  Al could sit right next to him and do the same.  But if either of them pass a joint to the other, it's a crime?

The Barry County Circuit Judge agreed that was silly.  Section 4 of the MMMA clearly allows patients to have 2.5 ounces.  They were both legal patients. The judge dismissed the marijuana delivery charge against Tony.

Prosecutors appealed the dismissal.  As they read Section 4, they could only find protection for Tony's and Al's possession of marijuana.  They didn't see anything protecting the delivery of marijuana.  The Court of Appeals, however, upheld the Barry County judge's dismissal, writing, "the MMMA does not place any restrictions on the transfer or delivery of marijuana between adult patients, and we decline to read any such restriction into the act."

Unfortunately for Tony, the Supreme Court of Michigan disagreed.  They have now reinstated the delivery charges against Tony.  The Court relies on its February decision in the case of Michigan v. McQueen where they held, "immunity does not extend to a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee's use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor's own condition or symptoms."

Got that?  Tony can puff joints all day from his 2.5 ounces because that benefits him medically.  But giving marijuana to Al does not benefit Tony medically, so that transfer is a crime.  Although Al can then go ahead and puff the joints Tony gave him, because that benefits him medically and isn't a crime.

Then there's the case of Benjamin Curtin Walburg.  Four years ago, police caught him growing 25 marijuana plants.  Ben didn't have his medical marijuana card, so he was charged with possession and manufacture of marijuana, a felony that could put Ben behind bars for seven years.

Ben argued that he suffers from severe anxiety and insomnia and he had a recommendation from his doctor for medical cannabis use.  Michigan had just passed the MMMA a few months prior to Ben's arrest.  That was enough for Ottawa County Circuit Judge Edward Post to dismiss the charges against Ben.

Prosecutors appealed the dismissal, arguing that despite Ben's recommendation, 25 plants was more than twice the twelve plant limit written into the MMMA.  The Court of Appeals disagreed with the prosecutor that only 12 plants are allowed under MMMA.  The Court noted Section 8 of the MMMA which provides an affirmative defense for a patient who is "collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition."  As the Court noted, "unfortunately, the Legislature neglected to define the term 'reasonably necessary' within the statute, leaving it open to interpretation based on the individual circumstances of each case."

So the Court of Appeals upheld the Ottawa judge?  No.  The Court sent the case back to Ottawa County so that court could give their interpretation based on the individual facts of the case.

Meanwhile, the Michigan Supreme Court has ruled on the cases of People v. Kolanek and People v. King which clarified that a person must have their medical marijuana registry card or doctor's authorization before they possess or grow marijuana and must display their card or recommendation at the grow site to qualify for any medical defense.  Therefore, Ben could still face the felony manufacture charge in Ottawa County.

Thankfully, the Ottawa County Prosecutor decided to cut Ben some slack, since the law was so unclear just months after passage.  He allowed Ben to plead guilty to misdemeanor possession with no jail or probation.  So, yes, Ben has to check "Have you ever been convicted of a drug-related crime?" on any employment applications and his shot at some government jobs and security clearances is gone... but at least he's not in prison.

Those are just two patients whose lives were turned upside down for the past four years while Michigan courts tried to make sense of their program to separate patients from "criminals."  Two patients who ended up being "criminals" anyway.  Wouldn't it just be easier to legalize marijuana for all adult uses and stop trying to determine who's healthy enough (or didn't follow the rules properly) to put in a cage over pot?