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A SMOKY HAZE OF A LAW

Michigan Medical Marijuana Law Creates Legal Haze

ST.  JOSEPH - The young man standing at the window appears nervous, as though he's not sure he should be at Your Three M Center, a recently opened clinic that helps people get Michigan medical marijuana registry cards. 

Speaking to office coordinator Sean Erhard, the man describes living with chronic pain caused by bone damage from an old sports injury.  He wonders if marijuana could offer relief. 

Erhard listens attentively, then lays out the procedure for getting a card, telling the man to bring in paperwork from his doctor that shows a diagnosis and what's been done to treat the injury. 

The clinic staff will then review his situation and could schedule an appointment with one of the four doctors working part time at Your Three M Center, Erhard explains.  If a doctor believes that marijuana would provide medical benefits, the patient is issued a certificate enabling him to get a card from the state. 

The card allows a person to use the drug without being prosecuted. 

"If you don't have a diagnosis the docs aren't signing you up," Erhard said. 

Many area physicians are unwilling to help patients get cards enabling them to use marijuana legally. 

Business has been steady at the for-profit clinic on Niles Avenue in St.  Joseph Township since it opened four months ago. 

He wouldn't give a number, but Erhard said, "We have lots of people coming in." He has his own medical card. 

The clinic works with patients who have diseases and chronic medical conditions or who are looking for a way to deal with pain caused by injury, years of hard physical work or old age. 

Your Three M Center may not appear on Chamber of Commerce promotional brochures, but like other businesses, Erhard says, it provides a service. 

"I want to be able to educate the community a little more," said Erhard, a Berrien Springs native who gained 10 years of experience with medical marijuana in Colorado, where he spent much of his life. 

The clinic is apparently the first new business of its type in Berrien County to take advantage of the Michigan Medical Marihuana Act, approved by 63 percent of voters who cast ballots in a November 2008 initiative. 

Erhard said he understands the powerful resistance during the long war on drugs to the changes allowing medical marijuana, which is now legal in 15 states and Washington, D.C.,

"I'm not asking law enforcement or a judge to endorse it," he said, "but I want them to understand it and embrace it."

A Tangled Web

Although Michigan's law has been in effect for more than two years, it may take more time and a lot of legal wrangling for it to be understood. 

The law seems straightforward on first reading.  It has 10 sections that describe who may get a card, protections available to them and procedures. 

The law does not legalize marijuana; it sets up a procedure allowing seriously ill people who use the drug for its palliative effects, and those with certain specified diseases or a chronic or debilitating medical condition, to be identified and protected from prosecution. 

Federal prohibitions on marijuana possession remain in effect, though the Obama administration has indicated it will not prosecute medical marijuana users who comply with state laws, officials said. 

Area police and prosecutors responsible for enforcing drug laws say the Michigan Medical Marihuana Act is riddled with ambiguities and conflicts that leave them guessing. 

Various questions, such as whether it's legal to open a dispensary, or marijuana store, are being sorted out slowly, one case at a time, in the Court of Appeals. 

"I call it the Wild West, because there's the law and no guidance," said Berrien County Assistant Prosecutor Jeff Taylor, who handles Drug Court cases. 

"Every county in the state is interpreting the same issues differently."

The law allows a qualified patient to possess no more than 2.5 ounces or 12 plants.  A qualified caregiver may also cultivate marijuana in the same per-patient amount for no more than five patients. 

Caregivers must keep plants in "an enclosed, locked facility."

The law contains a list of places where medical marijuana and its use are prohibited, including school grounds, prisons or jails, on public transportation or in any public place.  Employers are not required to allow the use of medical marijuana in any workplace. 

But law enforcement officials wonder what exactly constitutes a marijuana plant, and what qualifies as an enclosed, locked facility.  And what is the extent of the "public place" prohibition?

"Our biggest cases ( involving the MMMA ) have been grow operations where people have cards and almost never have them enclosed as required or have too many plants," Taylor said. 

More confusion is created by an affirmative defense section of the law.  Instead of the 2.5-ounce or 12-plant limit, that section says a patient can have "a reasonable amount" but must have a bona fide relationship with a physician. 

The law does not explain how to determine whether such a relationship exists. 

Taylor said he spends a lot of time dealing with whether a person's condition is serious or debilitating, a requirement to qualify for a card, and the type of relationship he or she has with the doctor. 

Many people who want medical marijuana cards are going to Detroit or Chicago, where "basically for $250 they will sign off," Taylor said. 

The Michigan Department of Community Health, which is responsible for issuing cards and maintaining the registry, has failed to clarify many issues, Taylor said. 

"I've cross-examined four or five doctors, and every one has said they would never say have more than 2.5 ounces or 12 plants," he said. 

Built to Confuse

Berrien County Prosecutor Arthur Cotter said he believes the inconsistencies are intentional.  Loopholes and uncertainty over the law's provisions could lead to looser enforcement and de facto legalization, he said. 

Although Cotter said he believes that the majority of Michigan voters supported the ballot initiative because they saw marijuana as potentially helpful to sick people, he points to the law's origins with a lobbying organization. 

The Marijuana Policy Project, based in Washington, D.C., works to decriminalize marijuana for medical and recreational uses.  It wrote model legislation for the MMMA. 

Recent polls suggest that a majority of Americans oppose overall legalization of the drug, Cotter said. 

California has had a medical marijuana law since 1996, but voters in November rejected a ballot proposal that would have legalized a range of other activities related to the drug. 

Cotter serves as chairman of the Prosecuting Attorneys Association of Michigan's committee on the act. 

He said the committee's goal "is to ensure that the act doesn't become a joke."

People working in law enforcement say the MMMA is being abused by many people who don't really have a qualifying medical condition but pay a fee to a "pot doc," a physician willing to sign off on a card without having a bona fide patient-physician relationship. 

"They need to do something to bring credibility to that ( card ) process because right now there isn't any," Cotter said. 

The Michigan Department of Community Health checks the paperwork of card applicants but does not look into the legitimacy of the doctor-patient relationships.  After two years of issuing cards, the agency has not determined how to permanently attach the cardholder's photo. 

The department is swamped with applications.  It is required to review them within 15 days of receipt, but it's about five months behind, according to the MDCH website.  The law allows the use of a copy of an application to serve as a valid registry identification if a card is not issued within 20 days of submission. 

A Michigan Court of Appeals judge who ruled in a case in September said in an opinion that the law was "inartfully drafted" and has created much confusion about the circumstances under which a person can use marijuana without fear of being prosecuted. 

Judge Peter O'Connell said police, prosecutors and trial court judges trying to enforce both the MMMA and Public Health Code, which prohibits marijuana use, are hampered by "confusing and seemingly contradictory language."

Healthy recreational marijuana users view the MMMA as de facto legalization, seemingly unconcerned that the drug remains illegal, O'Connell's opinion said. 

O'Connell's opinion came in People vs.  Redden, an Oakland County case in which the court ruled 3-0 that a defendant does not need to possess a registry card before asserting affirmative defenses available under the MMMA. 

Until the Michigan Supreme Court provides a final comprehensive interpretation of the act, O'Connell said, he recommends that all citizens avoid marijuana use or risk violating state law. 

On the Street

Berrien County sheriff's Lt.  Robert Boyce, who worked for many years in the Narcotics Unit and is now assigned to road patrol, said the MMMA complicates drug law enforcement. 

"The majority we run into ( is ) the person with a card has more than his allotted amount.  They're trying to claim they're not clear on the law," Boyce said. 

In one case, police got a warrant and found a medical card holder with more than 70 plants. 

The man had a medical marijuana card for himself and was authorized caregiver for two other people, which meant he could legally possess 36 plants.  He was arrested. 

On a traffic stop, a man with a card had 4 ounces in his possession, over the legal limit of 2.5 ounces.  He also was arrested. 

A major problem for police, Boyce said, is that the state medical marijuana registry is confidential.  Police cannot find out names on the list, and release of a name is a criminal offense. 

"We get information of a suspected grow operation in a house, get a warrant and find out they have a card," Boyce said.  "It's a waste of time and resources."

If there was a data base to check, he said, "they wouldn't have the police knocking on the door."

Boyce said the law has too many gray areas. 

"It's going to take years for the case law to work out.  Until then we have put up with the headaches and work through it," he said. 

Boyce said he typically encounters two cases a month involving the MMMA, and in some of them the law is being abused. 

Lawyers who do criminal defense work are also finding part of the statute tough to interpret. 

"The people don't understand it.  Attorneys don't either," said Scott Sanford, a lawyer practicing in St.  Joseph. 

Sanford said problems arise from interpretation over the legal limit of plants under the act. 

"What if I have 12 plants and 12 seedlings? Are those plants? No one knows."

The police are stuck in the middle, Sanford said. 

"The biggest problem is that law enforcement isn't allowed to know if you have a card," Sanford said. 

Conflicts arise over the interpretation of what it means to have an enclosed, locked facility. 

"At some point experienced judges are going to get to where they say 'we don't care what the law is, we're going to do what we want to do,' " Sanford said. 

Common Sense Counts

The president of the Berrien County Compassion Club, a support organization that helps medical marijuana patients get started and stay legal, said the start-up problems with the law may be overblown. 

"As far as what we voted in, it worked really well," said Scott, who declined to give his last name.  "Most of the battle I've seen is over dispensaries.  That ain't happening here."

The question of whether marijuana stores can operate under MMMA is before the appeals court.  Trial court judges deciding cases in Oakland, Ingham and Kent counties have said no, while a judge in Isabella County ruled to the contrary. 

The Michigan Department of Community Health says no, and the law says that a caregiver who provides marijuana for a patient can only recover costs. 

Opponents of commercial grow operations and dispensaries say the costs-only provision in the MMMA means marijuana can't be sold for profit. 

Scott said the compassion club's 389 members are advised to count their plants - including "clones" clipped off mature plants to start new ones - and limit the number to 12. 

Soon after the law's enactment, club members talked with Sheriff Paul Bailey and Prosecutor Cotter. 

Scott said Cotter "thought we were a dispensary or pot party club.  We're not any of that."

Members tend to be older and many have serious, chronic health conditions, he said, and marijuana can help the appetite and pain control and is not addictive like many prescription painkillers. 

The club is an advocacy group, and members speak to health groups, food banks and other organizations. 

Scott said he believes the law is abused less than he initially thought by recreational marijuana users. 

The Years Ahead

Erhard, who witnessed the evolution of Colorado's medical marijuana law, said that while the idea of dispensaries is distasteful to law enforcement and scares local government officials, it's one that makes sense. 

He said that in Colorado, dispensaries gave people with medical marijuana cards a safe place to make purchases, stopped the flow of the drug from Mexico and other places and provided the state with a new source of tax revenue. 

Colorado's medical marijuana law was enacted in 2000.  New rules set to take effect this year regulate dispensaries, setting licensing fees of $5,000 or more. 

The rules also set an extensive application process for operators and require that at least 70 percent of the marijuana sold in a business must be grown in the state. 

Erhard said not every medical marijuana cardholder in Michigan can produce a supply or find a caregiver. 

"We have to let law enforcement know that people 50, 60, 70 years old are buying on the street," Erhard said. 

He said he would like to meet with the mayors of St.  Joseph and Benton Harbor to talk about the law, its ramifications, and perhaps what might be coming. 

While the dispensary issue is being tested in other parts of the state, Erhard said his business, Your Three M Center, is focused only on providing clinic service and advice. 

"I love my business, my patients," he said.  "Everybody's got a story."