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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

The Michigan Court of Appeals recently sided with the defendant regarding two ambiguities in the Michigan Medical Marihuana Act’s (the “MMMA”) immunity provision. In <a href="http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20170418_C331408_28_331408.OPN.PDF" target="_blank" rel="noopener">People v. Manuel</a>, No. 331408, the court found that even though the defendant’s wet marijuana leaves exceeded the permissible weight and his growing room doors were not always kept locked, that he nevertheless complied with the MMMA’s immunity requirements.

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The defendant’s charges stemmed from a search of his property moments after he had purchased 12 marijuana plants. At the time of the search, the plants were in a freezer in the defendant’s garage.&nbsp; According to his testimony, he intended to move the plants to pots prepared in a locked growing room in his basement as part of his licensed growing operation. But when the police arrived, they found the growing room’s two locked doors and two padlocks all unlocked, and marijuana weighing in excess of the statutory limit.

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The defendant was charged with delivering or manufacturing marijuana plants, possessing marijuana with intent to deliver, maintaining a drug house, and possessing a firearm during the commission of a felony. In a defense to all four charges, the defendant asserted immunity under the MMMA.

The MMMA offers immunity to a defendant who: (1) was issued and possesses a valid registry identification card, (2) complies with the requisite volume limitations of § 4(a) and §&nbsp;4(b), (3) stores any marijuana plants in an enclosed, locked facility, and (4) is engaged in the medical use of marijuana. The prosecution challenged elements 2-4 of the defendant’s immunity claim.

First, the prosecution claimed that the defendant possessed “nearly two-and-a-half-times the legally permitted amount of ‘usable’ marijuana.”&nbsp; The prosecution was correct that the marijuana recovered from the defendant’s house far exceeded the permissible weight. But the court noted that this was not necessarily dispositive because the MMMA only placed limits on the amount of “usable” marijuana. Testimony revealed that the defendant’s marijuana was in the process of drying. Because the marijuana was “drying” and not “dried,” the court said the marijuana was not usable, and thus not a violation of the clear language of the statute.

Second, the prosecution argued that the defendant’s marijuana facility was not appropriately “enclosed [and] locked” as required by the statute. Although the two doors leading to the basement growing facility had locks and were equipped with an additional two padlocks, none were locked when the police arrived. The plants that the defendant had recently received were also sitting in his garage unsecured and in plain sight.

But again siding with the defendant, the court noted the practical reality of the statute required that there necessarily had to be allowances for the defendant to “legally unlock an enclosed area in which marijuana is being stored and move it to another enclosed, locked facility.” The defendant purchased the 12 plants minutes before the police arrived and had unlocked the growing room doors to prepare to transplant the recently delivered plants. The defendant testified that the basement door was usually quadruple-locked and secure to avoid anyone breaking in. Noting that the defendant’s system of locks actually exceeded the statute’s requirements, the court found that this element of the statute was satisfied.

Third, with respect to the final element, the Court noted that there is a presumption that licensed growers are using their marijuana for a medical use in compliance with Michigan law. The Prosecution did not offer any evidence to overcome this presumption.

With each element of immunity satisfied, the Court of Appeals upheld the trial court and dismissed the charges.

Partner

Adam T. Ratliff

Labor and Employment

COA upholds immunity for licensed medical marijuana provider, examining weight and location of drying plants

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COA upholds immunity for licensed medical marijuana provider, examining weight and location of drying plants

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