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Tue May 8, 2012
Lansing Attorney Responds to MI Marijuana Proposals
Michigan lawmakers have begun addressing the state’s often criticized medical marijuana law. Voter approval of the statute in 2008 has been followed by years of legal confusion over its enforcement. Last November, a State Court of Appeals ruling—People versus McQueen--led to the closure of many marijuana dispensaries and made the drug more difficult to obtain, even for cardholding patients.
Now, the state House has passed four bills aimed at clarifying the law. WKAR’s Mark Bashore takes a look at the measures that have gone to the Senate.
MARK BASHORE: Among other issues, the proposals aim to tighten the doctor-patient relationship; They mandate photos on patient ID cards and nail down where and how marijuana can be grown. As a whole, it gives patients and advocates some of what they want and law enforcement some of what it wants.
I discussed the bills with Attorney Matt Newburg. His Lansing firm represents many cardholding marijuana patients who are nevertheless charged with illegal possession and delivery. He backs one provision that orders harvested medical marijuana be transported in sealed containers in car trunks.
MATT NEWBURG: That’s going to be beneficial. A lot of the patients and caregivers get in trouble after a traffic stop and there is either in plain view or plain smell the smell of marijuana on patients and caregivers, which subjects them to unreasonable searches thereafter. I think those will help.
And I think a process in place to add debilitating medical conditions to the list of those approved conditions is going to benefit those individuals who may need a card but are yet unable to get one.
MARK BASHORE: So that means adding new conditions that marijuana might help people with?
NEWBURG: Yeah, that’s correct. Bill 4834 creates a 15-member panel and a rubric they have to follow once they receive a request from a citizen to add a condition to the debilitating medical condition list in the statute. That hasn’t been done yet and we’re four years since the act has been enacted. So I think it’s going to be beneficial for this and the time frames are tight for them to act as well.
BASHORE: So pictures on patient ID cards. Good thing?
NEWBURG: Absolutely. One of the concerns that patients and caregivers have that I’ve represented is they provide a medical marijuana card with no picture, just a name, and the police are giving them a difficult time as to how they know whether that is actually their medical marijuana card. I think a picture is great. The cards as they are now already (have) a spot for a picture. Pictures are just not inserted there.
BASHORE: What do the bills say about how patients should access marijuana and does it say anything about dispensaries?
NEWBURG: The package of four bills that were passed are silent as to access and dispensaries. There was a bill that passed earlier in the week that would permit dispensaries which include a local “out” option, which essentially allows municipalities to decide whether they want dispensaries or not. Those clearly permit access by patients to medication that they need and are authorized to use. It’s access that’s been significantly hampered since the Court of Appeals opinion in ‘People vs. McQueen.’ That bill, if passed, would help patients obtain marijuana that they’ve been unable to get since the Court of Appeals opinion.
BASHORE: One bill would firm up the patient-doctor relationship. How exactly?
NEWBURG: That bill requires a patient and doctor to have essentially an expectation by the physician to do some follow-up work with the patient. But it doesn’t make a requirement that the patient return to that physician.
The issue that we’re going to run into—I think this is the worst section of those bills—the issue that we’re going to run into is (the) physician-patient relationship has been defined in Michigan jurisprudence forever because it’s the basis for every medical malpractice claim in the state. How is that going to change those issues?
It also puts the onus on the physician and not (on) the patient. The concern that I have, which has been the concern since I’ve been representing patients in criminal court is the patients are going to be held accountable for the doctor’s actions or inactions and I don’t think that’s fair. I think if a doctor violates what would be HB 4851, that doctor should be held accountable and unfortunately that’s just not going to be the case.
BASHORE: In your opinion, what is the most important unfinished business in these proposals?
NEWBURG: Unfortunately, I don’t think legislation is going to be able to address it. I think what we need is a policy change on the basis of the community as a whole. It’s far too common for me to represent somebody who’s possessing an amount of marijuana that they’re allowed to possess. It just may be packaged differently, you know, in three or four mason jars instead of one, which originally was ‘drug paraphernalia’ and looks like somebody has an intent to deliver, when in fact all they’re doing is separating the different medical strains they’re allowed to possess. The onslaught on patients and caregivers is tremendous and eye-opening for me and I just don’t know that the legislature is going to be able to address that issue. Hopefully, we are able to change it.
BASHORE: You’re talking about the attitudes people have toward marijuana caregivers and users?
NEWBURG: Yeah, it’s been illegal for so long. And I think it’s difficult for people to switch in their minds and say ‘Well, there are certain people who are allowed to use it. There are certain people who are allowed to transfer it and deliver it.’ It’s just not happening. I think people are hanging on the pre-2008 medical marijuana world and saying ‘If you possess marijuana and it looks like you’re packaging it differently, you’re dealing drugs and we’re going to charge you.’
In the communities, there are some—despite passing this statute overwhelmingly, a majority of over 60%—the community in and of itself is still very reluctant to acknowledge the authorized use of marijuana.
BASHORE: Do you follow the legislature closely enough that you have some idea what’s going to happen in the Senate now?
NEWBURG: I do and I’m wondering how the Senate is going to act. If they’re going to act swiftly with the Republican majority, if they’re going to change or butcher some of the language in the proposed bills. I’m also interested to see how the election is going to benefit the bills or if they’re just going to sail through and get adopted. I’m uncertain. I think there are going to be some individuals in the Senate who are unwilling to touch this simply because of the majority of people that passed the medical marijuana statute. But in their favor, there’s a lot of disdain for what people have charged—this is a vague and poorly-drafted statute. And they are trying to clarify it. I think it’s going to be interesting. But I would suspect it would pass through the Senate. I just don’t know how quickly and in what form.
BASHORE: It did sail through the House. You’re saying it could still get hung up in the Senate?
NEWBURG: I think the timing with the Senate is going to be the issue. I would suspect, as I said, that this is going to get through the Senate. I’m just not sure of the timing, or the form (in which) it will emerge.
I would suspect, as we have seen through the courts, tightening up of some of the language. I think that these bills are going to get a little more specific, but I think that they will pass through the Senate.