Given the confusion and uncertainty regarding the Michigan Medical Marijuana Act ("MMMA") and its interpretation, it has allowed any prosecution against those that legitimately and reasonably believe they are complying with the MMMA, subjects an extremely large segment of the population to prosecution for the medical use of marijuana, which is contrary to public policy and the will of the people as evidenced by the ballot's passage.
Thousands of Michigan citizens have engaged in the use, possession, production, and transfer of marijuana for medicinal purposes, as a result of a voter initiated ballot proposal, Proposal 08-1, which was passed by the citizens in 2008. The ballot proposal stated that the law would permit physician approved use of marijuana by registered patients with debilitating medical conditions. The proposal also stated that it would permit individuals to grow marijuana for themselves and others for medicinal use, and specifically stated that it would allow registered and unregistered patients and primary caregiversto assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.
However the State has aggressively prosecuted individuals for the medicinal use, possession, manufacturing, and delivery of marijuana, despite the passage of the initiative, not because the individuals were fraudulently attempting to use the MMMA to engage in recreational drug use, or attempting to possess, manufacture and deliver marijuana for such purpose, but rather such prosecutions were and are being conducted merely because the vague, incomprehensible and contradictory language of the MMMA, in conjunction with the Public Health Code ("PCH"), concerning marijuana makes such prosecutions possible.
Further, the ballot initiative not only invited and encouraged individuals to use marijuana to alleviate their pain and suffering as a result of their debilitating medical conditions, it also invited and encouraged individuals to engage in activities such as the manufacturing and delivery of marijuana for others afflicted with such debilitating medical conditions, thereby allowing the State to prosecute individuals for more severe felony crimes, above and beyond mere possession and use, as well as multiple counts, all with possibly extreme sanctions which could entail prison incarceration, and also the forfeiture of property including their home.
The use of the card clearly indicates that the State was actually targeting medical marijuana caregivers and patients. The passage of the ballot initiative is indicative of the will of the citizens of this state, and that public policy disfavors the prosecution of those engaged in the use, possession, manufacturing, and delivery of marijuana to treat debilitating medical conditions and ease the pain and suffering of the terminally ill and those afflicted with other devastating medical condition.
In 2008, a voter initiative allowing for the use of marijuana for medicinal purpose was placed on the ballot and passed by the citizens of this State. The ballot proposal, Proposal 08-1, stated that the law would do the following:
• Permit physician-approved use of marijuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health.
• Permit registered individuals to grow limited amounts of marijuana for qualifying patients in an enclosed, locked facility.
• Require Department of Community Health to establish an identification card system for patients qualified to use marijuana and individuals qualified to grow marijuana.
• Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.
As a result of the initiative, many found themselves encouraged to engage in the use, possession, delivery and production of marijuana to alleviate their debilitating medical conditions, and the debilitating medical condition of other registered medical marijuana users. The medical use of marijuana is defined as the "acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." MCL 333.26423(e).
However, as codified the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., when taken in conjunction with the Public Health Code (PHC) concerning marijuana,see MCL 333.1101 et seq., has created such a confusing, contradictory, and incomprehensible regulatory framework that prosecution for activities regarding the medical use of marijuana violates due process.
My legal research established in case precedence that, "Clarity in the law is a prime requisite of due process. A criminal statute will be found vague and thus void on its face if it fails to provide fair notice of what the state commands or forbids or if it invites arbitrary and erratic enforcement. Vague prohibitions engender the possibility that people will restrict their conduct only to that which is unquestionably safe. In this respect, the problem of vagueness . . . is closely related to that of overbreadth. A law may be unconstitutionally overbroad, even though perfectly definite, if its terms deter the exercise of rights. Such a law is also void on its face." "A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them."Raley v Ohio.
In can clearly be said that the MMMA, when taken in conjunction with the Public Health Code, creates a regulatory framework that is so vague, contradictory, and incomprehensible that prosecution of those that legitimately attempt to avail themselves of the protections afforded violates principles of due process, as it fails to provide adequate or fair notice to the citizens of the state of Michigan as to what activities might run afoul of the law. As was expressed by one judge, the MMMA " 'is probably one of the worst pieces of legislation I've ever seen in my life.' " People v Redden (quoting the district court judge).
The MMMA in conjunction with the PHC, has created a confusing if not incomprehensible regulatory scheme regarding the medical use of marijuana. To allow the prosecution of those engaging in activities regarding the medical use of marijuana, whom reasonably believed were allowed, given the language of the ballot proposal, the language of the MMMA, and the proliferation of such practices in the face of silence by the state, is unconscionable and unconstitutional. Because the regulatory scheme regarding medical marijuana in so incomprehensible, vague, undefined, and contradictory, it fails to provide fair notice of what actions would subject a person to prosecution; therefore, and such prosecution fails to satisfy the standards of due process guaranteed by the federal and state constitutions.
Additionally, the MMMA actually invited and or encouraged the citizens of this state to engage in the medical use of marijuana as a treatment alternative to narcotics and or other prescription medications for devastating, debilitating and even terminal illnesses, and their symptoms. It also invited and encouraged those that engaged in the medical use of marijuana to escalate their activities, out of compassion and sympathy for others with such afflictions, such that those acting as primary caregivers can face multiple charges with more severe penalties and sanctions, resulting in incarceration and even the loss of their homes. And the state actually targeted mostly caregivers and appealed to their compassion and sympathy for others. Such actions amount to entrapment.
In addition not only does the language of the MMMA, and the initiative as worded on the ballot provide assurances to the citizens in Michigan such that they would not be prosecuted for activities but the state's silence in recent years, regarding such practices, lent legitimacy to such practices, and made any reliance on the assurances reasonable. Therefore prosecution in such matters amounts to entrapment by estoppel.
Moreover, given the confusion and uncertainty regarding the MMMA and its interpretation, allowing any prosecution against those that legitimately and reasonably believe they are complying with the MMMA, subjects an extremely large segment of the population to prosecution for the medical use of marijuana, which is contrary to public policy and the will of the people as evidenced by the ballot's passage. And because that segment that is subject to such prosecution encompasses those afflicted with debilitating, devastating and terminal illnesses, and because such prosecutions subjects the same to extreme sanctions that could result in incarceration and even the loss of their homes, such prosecutions are not only contrary to public policy, they are reprehensible, unconscionable, and an outright abomination.
If you've been charged, arrested or investigated for marijuana possession or drug distribution, delivery/manufacturing marijuana or other drugs contact Drug Attorney Daniel D. Hajji at (248) 599-0054. Serving clients in Oakland, Macomb, Wayne, Washtenaw and Livingston County.