According to a recent decision of the Michigan Court of Appeals, the answer is a resounding, “yes!” In the recent case of People v. McQueen, et al, Michigan Court of Appeals No. 301951, the appeals court ruled that marijuana cannot be sold in Michigan.
The defendants, who were owners and operators of the Compassionate Apothecary Medical Marijuana Dispensary, were sued by the Isabella County Prosecutor’s Office, which was seeking an injunction to close down the marijuana dispensary.
According to the Michigan Court of Appeals, “the facts regarding defendants’ operation of CA are generally undisputed. McQueen is a “qualifying patient” who has been issued a “registry identification card” by the Michigan Department of Community Health (MDCH). He is also the registered “primary caregiver” for three qualifying patients. Taylor is not a “qualifying patient,” but he is the registered “primary caregiver” for two qualifying patients. Together, McQueen and Taylor operate CA, which can be described as a medical marihuana dispensary. The goal of CA is to provide an uninterrupted supply of marihuana to registered qualifying patients. It does this by “facilitating” patient-to-patient transfers of marihuana between its members.”
In July 2010, plaintiff, through the Isabella County Prosecuting Attorney, filed a complaint for a temporary restraining order, preliminary injunction, and permanent injunction against defendants. Plaintiff alleged that defendants’ operation of CA did not comply with the provisions of the MMMA because the MMMA does not allow patient-to-patient transfers or sales of marihuana, nor does it allow marihuana taken from one caregiver to be dispensed to patients who are not the registered qualifying patients of the caregiver.
The trial court denied plaintiff’s request for a temporary restraining order and it denied the request for a preliminary injunction.
The Court of Appeals discussed the issue of possession in response to the defendant’s arguments that the marijuana belonged to member-patients, not the defendants. The term “possession,” when used in regard to controlled substances, “signifies dominion or right of control over the drug with knowledge of its presence and character.” People v Nunez, 242 Mich App 610, 615; 619 NW2d 550 (2000) (internal quotation marks and citation omitted). Possession may be actual or constructive, and may be joint or exclusive. People v McKinney, 258 Mich App 157, 166; 670 NW2d 254 (2003). “The essential issue is whether the defendant exercised dominion or control over the substance.” Id. A person can possess a controlled substance and not be the owner of the substance. People v Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992). Here, the court found that the defendants exercise dominion and control over the marihuana that is stored in the lockers that CA rents to its members. Because they exercised dominion and control, the court found they were in possession.
Defendants also claimed that they did not “sell” marijuana, that the member-patients were selling to one another. A “sale” as “the transfer of property or title for a price.” The Court disagreed and found that because the patients were sharing a portion of the proceeds with the defendants, the defendant were active participants in the sales.
The Public Health Code (PHC) classifies marihuana as a schedule 1 controlled substance. MCL 333.7212(1)(c). This means that the Michigan board of pharmacy has found that marihuana “has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” MCL 333.7211. The PHC prohibits a person from knowingly or intentionally possessing or using a controlled substance unless the substance “was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this article.” MCL 333.7403(1); MCL 333.7404(1).
The foundation of defendants’ argument for why the operation of CA complies with the MMMA is that because the “medical use” of marihuana includes the “delivery” and “transfer” of marihuana. MCL 333.26423(e). According to defendants, patients are engaged in the “medical use” of marihuana when they transfer marihuana to other patients.
However, the court found that the members, aided by the services of defendants, do not simply “deliver” or “transfer” marihuana to other members. Rather, the members and CA employees “deliver” or “transfer” the marihuana to other members for a price. A “sale” is “[t]he transfer of property or title for a price.” Black’s Law Dictionary (7th ed); see also MCL 440.2106(1) (a “sale,” as defined by the Uniform Commercial Code, MCL 440.1101 et seq., is “the passing of title from the seller to the buyer for a price”). Here, the marihuana that a member has placed in a CA locker is only delivered to another member if that member pays the purchase price for the marihuana. After a 20 percent service fee is deducted and retained by CA, the remainder of the purchase money is given to the CA member that rented the locker. Accordingly, members of CA that supply the marihuana, in utilizing the services that defendants provide through their operation of CA, are not just delivering or transferring their excess marihuana; they are selling their excess marihuana.
The Court ruled that the “medical use” of marihuana does not include patient-to-patient “sales” of marihuana, and neither § 4(e) nor § 4(k) permits the sale of marihuana. Defendants, under this ruling, had no authority under the MMMA to operate a marihuana dispensary that actively engages in and carries out patient-to-patient sales of marihuana.
Counties that are historically tough on drug crimes include Oakland County, Wayne County, Washtenaw County, Livingston County and Macomb County. Drug crimes include but are not limited to: Possession of Marijuana, Possession of Narcotic Paraphernalia, Possession of Cocaine, Possession of Heroine, Possession of Methamphetamine, Possession of Analogs, Possession of an Imitation Controlled Substance or Use of Marijuana or other controlled substance.
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