"Ryan Fishman is an attorney at Southfield’s Fishman Group, P.C., a former talk show host, one-time candidate for office, and in Yiddish what you might call a bit of a “kvetch.” His complaints, concerns,musings, and answers to your questions on Michigan's laws can also be found at www.thefishmangroup.com."
Ryan Fishman
By Ryan Fishman
Governor Rick Snyder signed some 200 plus lame duck bills into law Monday, but what never hit his desk was a package of changes to the state’s sometimes lauded, sometimes criticized medical marijuana laws.
That’s not to say there’s been no effort to clear the air. This year saw two bills emerge in the House, HB 4271 and HB 5104. Both passed with somewhat surprising bipartisan support, but ultimately both flopped on the Senate floor earlier this month.
HB 4271 would have made legal (and regulated) the presence of medical marijuana dispensaries or “provisioning centers” across the state after the state Supreme Court declared them a public nuisance in 2013. HB 5104 would have made edibles, tinctures, pills, creams, foods, and other non-smoked forms of marijuana available again for Michigan residents after the Court of Appeals ruled otherwise.
As an attorney, what’s perhaps most frustrating about all of this is that you don’t have to be high to be confused about what’s legal and what isn’t. In 2008 voters passed the Michigan Medical Marijuana Act and ever since there’s been a fairly active tug of war with patients and potheads on one side and police, prosecutors, and municipalities on the other. I have to admit I’m not sure who’s right, but what I do know is some change – any change – would have actually done us all some good.
Earlier this month I was in court for an arraignment. My client was charged with possession and at 57 is facing criminal charges for the first time in his life. When he was pulled over there were about four grams of marijuana and a pipe in a Ziploc bag stuffed between his center console and passenger seat.
When all is said and done he’ll spend about a year on probation and pay several thousand dollars in fines. It was difficult to explain that just a few miles away what he did technically isn’t even a crime. In November, voters in five cities – Berkley, Huntington Woods, Mount Pleasant, Port Huron, and Saginaw – voted to decriminalize possession of marijuana. Over the last two years Detroit, Flint, Grand Rapids, Lansing, Jackson, and Ferndale have all done the same. Ann Arbor made it a civil infraction in 1972.
It was equally difficult explaining to this seemingly ordinary, otherwise law abiding citizen that had he seen a doctor and complained of migraines or glaucoma or anxiety or any other number of fairly common ailments and then paid the State of Michigan a paltry $100, that what he had done also would not have been a crime.
Having said that, I’m concerned that if my client had been high behind the wheel, putting both himself and others at risk, while he would have been committing a crime , it would be nearly impossible to convict him on charges of operating under the influence of marijuana.
While a judge can order a blood draw, at least for now that test in Michigan will only be a qualitative test – that’s a test that can only prove the presence of THC in your system, not whether there was enough to impair your ability to drive.
I don’t know of a single prosecutor’s office in the state that can do quantitative testing of THC nanograms, nor do I know of a single prosecutor’s office with the pharmacological expert on staff necessary to testify as to how many nanograms impair one’s ability to drive. And before I forget, the legislature hasn’t specified the number of nanograms that qualify you as impaired akin to the .08 we’re all familiar with when it comes to drunk driving.
What I certainly can’t imagine is being the doctor that has to explain to a parent their child’s seizures are best treated with a medicine that isn’t legal because the Senate Majority Leader buckled under pressure from special interests who warn we’re taking Michigan “down an uncharted course.”
Frankly, the course is being charted in states like Colorado where the Denver Post reports more than 30 million dollars in excess recreational marijuana taxes have allowed the Governor to earmark more dollars for schools and roads – two of the most significant (and sidestepped) funding problems our lawmakers seem to have in Lansing these days.
While I’m certainly not advocating for the legalization of marijuana, I also wouldn’t argue that the status quo or a return to absolute prohibition would work.
This legislative “hokey pokey” with one foot in and one foot out is doing Michigan residents a disservice and that’s why voters are taking the issue to the polls with a remarkable level of success.
A statewide effort to legalize marijuana in 2016 shouldn’t come as a surprise.
What I’d like to see is some constructive, thoughtful work done by our lawmakers to clarify the legislative headache they themselves have created by dodging the hard work it takes to lead and whether that means more regulations or fewer, at least I can only hope the next year will bring some answers… but maybe I’m smoking something.
Contact the writer at ryan@thefishmangroup.com.
