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Conviction Of Michigan Medical Marijuana Caregiver Upheld By Divided Appeals Court


bobandtorey

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GRAND RAPIDS, MI – In a split decision, a state appeals panel said that harvested marijuana being kept in canisters to dry does constitute usable marijuana.

Alenna Marie Rocafort, 47, said she intended to make hash oil out of drying - and thus not usable - marijuana.

Police seized 5.6 pounds of marijuana that was being dried during a Sept. 15, 2012, raid in a house next to her Kentwood home.

She argued before a Kent County Circuit Court judge that the seized marijuana, which exceeded the amount she could possess for her patients, was not usable because it was in the drying process.

The state Legislature says "usable" marijuana includes "the dried leaves and flowers of the plant" but not seeds, stalks and roots.

Caregivers are allowed to possess up to 2.5 ounces of marijuana per patient. She would be allowed to possess 15 ounces for five patients and herself.

"There is no dispute that defendant was a caregiver under the (Michigan Medical Marihuana Act) and that she was registered to provide marijuana to five patients," the appeals panel said, in its decision issued Friday, Jan. 8.

"The trial court stated that the sole issue with regard to defendant's motion (to dismiss) was the fact that she had 5.6 pounds of harvested marijuana, which, if that marijuana were usable, exceeded the amount of usable marijuana defendant was allowed to have ... ," the panel said.

An expert in cannibas cultivation, Christopher Conrad, testified that marijuana usually takes a week to 10 days to dry after harvesting, but the bulk of drying would have occurred at the beginning of the process.

Rocafort's marijuana had been drying for four days when police raided her house.

The trial judge determined that the medical marijuana law could not refer to completely dried marijuana because dried marijuana contains about 10 percent moisture. 

"The trial court concluded that, although the seized marijuana may not have been dried to the ideal extent, it was 'largely dried,' and therefore denied defendant's motions," justices Jane Markey and William Murphy wrote.

They found the judge did not "clearly err."

Judge Cynthia Stephens disagreed with the majority's conclusion that the marijuana was usable under the medical marijuana law.

"I would conclude that the marijuana that was in the 'drying process' or that which was 'pretty dry' or 'dry enough' or 'largely dried' did not constitute usable marihuana within the meaning of the statute and was therefore, insufficient evidence upon which to convict defendant," Stephens wrote in her dissent.

She said the Legislature has differentiated between marijuana and usable marijuana. 

"Notably, usable marihuana does not include 'all parts of the plant ... growing or not' or 'every ... preparation of the plant or its seeds or resin,'" she wrote.

"The evidence did not establish that the 5.6 pounds of harvested marihuana seized from defendant's home in canisters was 'the dried leaves and flowers of the marihuana plant' but only that the marihuana was in the process of drying. ... I acknowledge the difficulty in determining 'dried marihuana' when even so-called completely dried marihuana contains 10 percent moisture but I would also call up on the Legislature for clarification."

Rocafort was placed on probation for two years but discharged early.

She had placed harvested marijuana into containers to dry on Sept. 15, 2012. Four days later, when she returned home from work, she saw police raiding her house. She told them that she was a registered caregiver and patient before police seized the marijuana in the containers.

 

http://www.mlive.com/news/grand-rapids/index.ssf/2016/01/medical_marijuana_caregivers_c.html

 
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