Michigan Medical Marijuana Attorneys

We are Not Afraid to Fight for You and Do Everything Possible to Win Your Medical Marijuana Related Prosecution!

Loren M. Dickstein and Randy M. Lewis are currently handling multiple medical marijuana defense related cases. Additionally, we also represent many clients who are being accused, but not yet charged with, possession or possession of intent to deliver medical marijuana. We have taken the time and effort to thoroughly and completely review the Michigan Medical Marijuana Act (MMMA), the defenses available therein, related state, federal and national cases, and the legislative intent behind the law so that we are experts in the defense of any medical marijuana related prosecutions.

On November 4, 2008, Michigan voters passed the “Michigan Medical Marijuana Act.” This Act allows doctor-approved use of marijuana by patients who have certain serious medical conditions and who register with the state to use and/or grow limited amounts of marijuana to treat their illness.

Michigan Criminal Defense Attorneys
Although the vast majority of Michigan voters approved and agree with the use of marijuana to treat those suffering from debilitating conditions and chronic pain, many Michigan prosecutors have taken a firm position opposing the intent and desire of their constituents. When the prosecutor’s office is gearing up to fight you and prosecute you for complying with your doctor’s recommended course of medical treatment for your condition, Loren Dickstein and Randy Lewis, Drug Lawyers Attorneys, will gear up to bring the fight to them!!! Those patients and care givers who are charged or accused of committing a crime in Michigan need the best legal representation possible from the most experienced medical marijuana lawyers available.

Two types of people are authorized under the Michigan Medical Marijuana Act to engage in the 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. The patient is the one who uses medical marijuana to help with his or her medical problems. A primary caregiver may be needed when a patient is too sick or unable to handle growing or obtaining their own medical marijuana. The caregiver must be at least 21 years old, must agree to assist with a patient’s medical use of marijuana, and must not have a felony drug conviction on their record. A primary caregiver may assist up to 5 patients at any given time and may charge a reasonable fee for their services.

In order for a patient to qualify for protection under the MMMA, he or she must be diagnosed by a physician to be suffering with a “debilitating medical condition,” including: cancer; glaucoma; HIV; AIDS; hepatitis C; amyotrophic lateral sclerosis; Crohn’s disease; Alzheimer’s disease; nail patella; or a disease which causes cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures; or severe and persistent muscle spasms; or any other condition authorized by the state of Michigan. The other person allowed to handle medical marijuana is a patient’s primary caregiver

If you are a patient, a qualified patient or a caregiver and you are charge or being investigated for a possession, distribution, transfer or cultivation criminal charge, you will need a Michigan Drug Defense Attorney. Call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation on your case at (248) 263-6800. We will do everything possible to help you and we are not afraid to win! If you want us to contact you, please fill out a Request for Assistance Form.

We have handled drug possession, delivery, cultivation, distribution and trafficking cases throughout Michigan and the United States in countless federal and state courts. Counties that we have recently handled cases in that are particularly ruthless on Medical Marijuana charges are:

Defense for Medical Marijuana Use, Possession or Transfer

Medical Marijuana Michigan Attorneys
As for a qualifying patient, the Section 4 defense provides that a qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount (in other words, the shake is not included in the weight).
Section 4 also applies to primary caregivers for qualifying patients. The statute provides that a primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marijuana in
accordance with this act, provided that the primary caregiver possesses an amount of marijuana that does not exceed:

  1. 2.5 ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department’s registration process; and
  2. for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marijuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
  3. any incidental amount of seeds, stalks, and unusable roots.

Section 8 – Protection for Those Without Registry Identification Cards

The Michigan Medical Marijuana Act (MMMA) also provides for an affirmative defense under Section 8 which can be used to protect patients have not applied for or received a Registry Identification Card. In these circumstances, a defendant can basically argue that if they would have applied for a registry information card, they would have been approved. In order to avoid a conviction under Section 8, the patient must show three things. The first thing is that after completing a full assessment of the patient’s medical history and current condition, a physician who is in a “bona-fide” physician-patient relationship with the patient has stated that the patient is likely to benefit from using medical marijuana to treat the patient’s condition. This statement from the physician must occur between the time of the enactment of the MMMA and the defendant’s marijuana offense (not the arrest or prosecution date). The second thing the patient must show is that the patient was in possession of an amount of marijuana that was “reasonably necessary to ensure the uninterrupted availability of marihuana” to treat the patient’s medical condition. Finally, the patient must show is that they were only growing, possessing, using, transporting, or delivering the marijuana for purposes of the patient’s legitimate medical use.

A Recent Point of Controversy

One point of high controversy in litigation throughout the state in both trial courts and appellate courts is whether a primary caregiver can make a profit when “selling” marijuana and/or assisting a qualifying patient. Many prosecutors throughout the State of Michigan, including Oakland County, Macomb County, Wayne County, Livingston County, Genesee County, have taken a position that remuneration that results in a profit is illegal and/or voids the affirmative defense for a transfer or delivery. The language the prosecutors are relying on for this position is contained in Section 4 and reads as follows: “A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marijuana. Any such compensation shall not constitute the sale of controlled substances.

There are no cases that support the prosecutor’s exceedingly narrow definition of compensation. Of course, compensation can be for the literal, financial “costs.” The prosecutor’s position completely ignores the costs in term of time, effort and labor associated with growing, processing, cultivating and transferring the medical marijuana.

The Law – Defenses to Medical Marijuana Charges

Great Michigan Medical Marijuana Attorneys stay abreast of the latest in Medical Marijuana laws so that they can obtain the best possible result for clients.  The two general areas of defense built into the MMMA are found in Sections 4 and 8 and can be seen below:

333.26424 Qualifying patient or primary caregiver; arrest, prosecution, or penalty prohibited; conditions; presumption; compensation; physician subject to arrest, prosecution, or penalty prohibited; marijuana paraphernalia; person in presence or vicinity to medical use of marijuana; registry identification issued outside of department; sale of marijuana as felony; penalty.

4. Protections for the Medical Use of Marijuana.

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marijuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marijuana plants kept in an enclosed, locked facility.
Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department’s registration process; and

(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable roots.

(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient’s medical history, or for otherwise stating that, in the physician’s professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions.

(g) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana.

(h) Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.

(i) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

(j) A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient’s medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department.

(k) Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.

8. Affirmative Defense and Dismissal for Medical Marihuana.

Sec. 8. (a) Except as provided in section 7, a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and

(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.

(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).

(c) If a patient or a patient’s primary caregiver demonstrates the patient’s medical purpose for using marihuana pursuant to this section, the patient and the patient’s primary caregiver shall not be subject to the following for the patient’s medical use of marihuana:

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

(2) forfeiture of any interest in or right to property.