This post is the second in a series of posts designed toward providing some basic background information about the legal status of marijuana under Michigan law. Our first post covered some general background of 2008’s Michigan Medical Marihuana Act (commonly known as the “MMMA”). This post discusses the first of the two legal protections that the MMMA that you can understand your rights.
The MMMA offers provides two different options to obtain legal protection for the medical use of marijuana for certain individuals engaged in the medical use of marijuana. The first option is outlined in Section 4 of the MMMA and grants “broad immunity” from any penalty for patients and caregivers who meet its requirements. The second option is provided for in Section 8 of the MMMA and creates an affirmative defense for those who can demonstrate a “bona-fide physician-patient relationship” and a number of other criteria. This post focuses on what it takes to establish Section 4 immunity, which offers the strongest legal protection and is the preferred approach for medical marijuana patients and caregivers whenever possible.
Section 4 of the MMMA grants broad immunity from arrest, prosecution, or any penalty, for those who meet its requirements. In 2015, the Michigan Supreme Court in its opinion in People v. Hartwick went to great length to outline the requirements for a medical marijuana patient or caregiver to be entitled to immunity under Section 4. There are 4 elements that a patient or caregiver must prove to establish that they are entitled to protection under Section 4.
First, the patient or caregiver must prove that they have been issued and possess valid medical marijuana cards from the Department of Licensing and Regulatory Affairs.
Second, the patient or caregiver must show that they possess marijuana and marijuana plants within the limits authorized under Section 4. Section 4 allows a patient to possess 2.5 ounces of usable marijuana, which means completely dried marijuana, or a comparable amount of marijuana products based on an equivalency table provided in the law, which is provided below:
For purposes of determining usable marihuana equivalency, the following shall be considered equivalent to 1 ounce of usable marihuana:
(1) 16 ounces of marihuana-infused product if in a solid form.
(2) 7 grams of marihuana-infused product if in a gaseous form.
(3) 36 fluid ounces of marihuana-infused product if in a liquid form.
As far as plants are concerned, Section 4 allows a patient to cultivate 12 marijuana plants. For purposes of the MMMA, clones or cuttings may be considered plants if they have developed a root structure. Section 4 allows caregivers the same volume limitations per patient, so caregivers can possess up to 2.5 ounces of usable marijuana (or an equivalent amount of marijuana products) per patient and 12 marijuana plants per patient.
Third, any marijuana plants must be kept in an enclosed, locked facility. An enclosed, locked facility must be some locked room or indoor space that is only accessible by the patient or caregiver. No other person may have access to the facility. Importantly, the Michigan Court of Appeals has ruled that this requirement is also met when the patient or caregiver is in the immediate act of transporting the plants into the facility.
Finally, a patient or caregiver must also prove that he or she is engaged in the medical use of marijuana. Section 4 creates a presumption that the patient or caregiver is engaged in the medical use of marijuana if he or she has valid medical marijuana cards and is within their plant and usable marijuana limitations. Therefore, if a patient or caregiver meets the first 2 elements for Section 4 immunity, they get a presumption as to the fourth element. A prosecutor can rebut the presumption of medical use by showing that the patient or caregiver was engaged in conduct not authorized by the MMMA.
Section 4 offers powerful legal protections for medical marijuana patients and caregivers, including immunity from arrest or prosecution. Practically speaking, Section 4 is at the very heart of what makes medical marijuana use and cultivation permissible in Michigan. Medical marijuana has been shown to be effective in fighting the opioid epidemic, and Dr. Oz has called it “the exit drug to get us out of the narcotic epidemic.” The requirements for Section 4 immunity will continue to be important for the foreseeable future.
If you are a medical marijuana patient or caregiver and have questions about protecting your rights or if you are interested in learning more about Michigan’s medical marijuana laws, including obtaining licensing for a medical marijuana business, please contact the experienced medical marijuana attorneys at Grewal Law PLLC.
An associate attorney with Grewal Law PLLC in Okemos, Michigan, John Fraser focuses on general litigation, criminal defense, cannabis law, and appellate law. John is also an adjunct professor of law at Western Michigan University Cooley Law School where he teaches a course on Medical Marijuana and the Law.