MI - New law harbors more questions than answers

New law harbors more questions than answers
Sunday, May 31, 2009
By Brian McVicar
[email protected]

Dan Higgins heaved a sigh of relief last November when he learned Michigan residents voted to legalize medical marijuana.

The new law meant the disabled U.S. Army veteran wouldn't have to smoke marijuana, which he uses to treat severe nausea and back pain, in secret.

"It's about compassion," said Higgins, a 34-year-old Robinson Township resident who suffers from severe nausea caused by the high-powered pain killers he uses to treat his injured back.

However, the celebration was short-lived.

Nearly two months after Michigan's medical marijuana law -- which voters approved in last November's presidential election -- went into effect, both patients and law enforcement officials say they have more questions than answers.

What constitutes an "enclosed, locked" marijuana growing facility? How does a patient who's too sick to grow marijuana find the substance? Is a patient who has received a doctor's note but not a state identification card breaking the law by using medical marijuana?

Clear answers don't appear to be coming anytime soon.

"We are simply in the state of confusion, and everyone is searching for some proper guidelines," said James Houston, a criminal justice professor at Grand Valley State University.

Passing the buck

As a registered user and caregiver who legally can grow up to 60 marijuana plants for five registered patients, Higgins has a lot of questions.

He wants to know how secure his marijuana garden needs to be so he can be in compliance with the Michigan Medical Marijuana Act. Both state officials and local law enforcement have been unwilling to give him an answer, saying they also don't know.

The act says marijuana must be grown in a "closet, room, or other enclosed area equipped with locks or other security devices." Those who violate the rule are subject to legal action.

It's a definition Higgins says is too vague.

"I feel like I'm being set up for failure," he said.

He's not alone.

Greg Francisco, executive director of the Michigan Medical Marijuana Association, says he's heard similar complaints from other medical marijuana users.

They range from how medical marijuana users find seeds to grow the plants, what constitutes a secure growing area, and how medical marijuana users who don't want to grow their own find the substance, he said.

"We would like some clear guidelines," Francisco said.

State offers little guidance

Don't turn to the state for direction, said James McCurtis, spokesman for the Michigan Department of Community Health, the state agency charged with implementing the Michigan Medical Marijuana Act.

He said the department has a narrow set of duties, mostly limited to reviewing applications submitted by patients or caregivers who wish to use medical marijuana. Beyond that, it's up to the courts, not the state, to clarify the law, he said.

To use medical marijuana, patients must submit an application to the department of Community Health showing they have a debilitating medical condition -- such as cancer, Aids, severe nausea or chronic back pain -- and a physician certifying that medical marijuana may help treat the condition.

After the state certifies patients, they receive a state-issued identification card showing they are legally using medical marijuana.

"A lot of these things are going to end up in the legal system because there is some confusion," McCurtis said, referring to issues such as whether it's illegal for patients to grow marijuana before they have their identification card in hand.

He urges patients and caregivers with questions about the new marijuana law to contact their attorney or the Michigan Medical Marijuana Association.

It's a road that has led Higgins nowhere.

He says he's contacted numerous organizations, including the Ottawa County Sheriff's Office, his state senator, the Michigan Attorney General's office and still hasn't received any direction on how to interpret the law.

"I'm seeking clarification and nobody will give it to me," Higgins said.

Law enforcement confused, too

Patients aren't the only ones complaining about the medical marijuana law. It's drawn heavy criticism from law enforcement officials, too.

Muskegon County Sheriff Dean Roesler said the law is poorly written, leaving police to sort through many gray areas.

"In terms of giving law enforcement guidance, it's a poorly written-out proposition," he said.

He points to the area covering how secure a marijuana garden must be and confusion over whether deputies must care for medical marijuana plants they seize.

"That's going to be subject to interpretation at this point," Roesler said. "It's trial and error at this point."

Lt. Mark Bennett of the Ottawa County Sheriff's Department said deputies will consult with the prosecutor's office when working through thorny legal issues such as whether medical marijuana patients are receiving the substance in a legal manor.

There's "more legal ambiguities than most laws," he said. "There are some areas that will take legal cases to decide."

Issues patients and law enforcement officials are wading through likely won't become clear until several cases move through the legal system.

There's been no shortage of legal and legislative tussles since the law went into effect last April.

One of the most high-profile cases is taking place in Madison Heights, a Detroit suburb where a couple is facing charges of illegally growing 21 marijuana plants.

While the couple had doctors' notes allowing them to use marijuana for medical purposes, they lacked state identification cards saying they could use the substance. At issue is whether medical marijuana patients were prohibited from growing the substance until the state implemented the identification system in April or after voters passed the law in November.

Other pending cases include a Shiawassee County man who was arrested earlier this month for growing marijuana in an unsecured area outside his home, a violation of the Michigan Medical Marijuana Act. Police and prosecutors say the man faces one count of manufacturing marijuana, according to news reports.

Add to that numerous city and townships ordinances that would prohibit marijuana from being grown in residential areas, and you have the potential for a confusing set of laws, said Francisco, of the Michigan Medical Marijuana Association.

Bills have also been introduced in the state legislature, including one by state Sen. Gerald Van Woerkom, R-Norton Shores, that would prohibit patients from growing medical marijuana. Instead, the substance would be distributed by pharmacists with a doctor's prescription, an act that's currently illegal under federal law.

"We're ending up with a hodgepodge of policies," Francisco said, adding many of the proposed regulations will face court battles. "It's really been a failure by the state to put out guidelines.