Head-Scratching Questions For Legal, Section 4 Transfers

[Highlander]

A very good friend of mine is an attorney who has practiced for about 38 years in Genesee County.  His practice currently focuses on real estate and trust law, but in his early years he concentrated on criminal defense.  He has a new criminal case and asked for my input.

 

Setting the stage:

 

Under the MMMA, "marijuana" (imported and paraphrased from the PHC) means any part of the plant, alive or dead (includes leaves, flowers, seeds, stalks, and roots).

 

Under the MMMA, "usable marijuana" means dried leaves and flowers.  Seeds, stalks, and roots are specifically excluded from the definition.

 

Section 4 of the MMMA allows a CG to possess and transfer to a patient, 2.5 oz. of "usable marijuana" (dried leaves and flowers only).

 

----

 

The problem:

 

Section 4 offers no protection to a CG to transfer seeds to a patient.

 

Section 4 offers no protection to a CG to transfer stalks or roots to a patient;

 

Therefore, Section 4 offers no protection for a CG to deliver a whole, dried plant to his patient.

 

Section 4 offers no protection to a CG to transfer live plants to a patient.

 

Section 4 offers no protection to a CG to transfer wet marijuana to a patient.

 

...because none of the above forms/parts of marijuana are included in the definition of "usable marijuana." and Section 4 only gives a CG protection to transfer "usable marijuana."

 

Any ideas from the community?

 

 

 

 

 

 

[Willy]

My first thought is that the MMMA def. supersedes the def. of PHC In my mind. but then i think if there is an exception to the seeds, stalks, roots they dont count as illegal. 

 

 

Now when you start to transfer those part n pieces, then IDK , seeds you can have with out much ado. but transfere them? All i can say with my assumption that part of the problem is MMMA might not supercede PCH.. One more thing that needs fixed.....And although i can't find it I am sure I saw a court wether 0 tolerence could be used on a MJ patient. and it was superceded by MMMA,  as i remember. 

Edited March 16, 2016 by Willy

[PotGod]

When it comes down to it and these grey area, what anyone else thinks besides the prosecutor and judge is meaningless unless there is some other case law that proceeds it with a ruling saying differently.

 

Discussing it before it happens and has any precedence is one thing but once a case is in the courts, unfortunately the vagueness of the law leaves way to much for any individuals own interpretation.

 

Once you are in the courts you can argue anything you want and I'll agree that all of it should hold water, but if the prosecutor or judge has to play into an incumbency that is personally against the MMMP than the only opinion that matters is the opinion of those two people. I personally have seen way to many BS cases that if taken to a higher court would certainly win but right now there is no incentive for a caretaker and or other defendant, that is limited in growth, to invest in the legal fees to fight and set a precedence, so most stop before going the distance.

 

IMO instead of fighting it case by case with differing results depending on the court your in, we need a whole new better defined law but it seems to many people are comforted with a false sense of security or they live in an area where they may not need to care at this time, but the vagueness in the law also means that those opinions can change with the change of prosecutors and judges, so the only way to be sure it to have it clearly defined in advance. The largest financial benefactors from the MMMP are not caregivers and patients. You can do your own research to find out who is.

 

These are just my opinions and thoughts based on my personal risk taking strategy, which is low. I personally consider everything to be illegal with vague laws like ours only providing a false sense of security, when the fact is you could be harassed by anyone, anytime, anywhere. When the risk for someone in the medical marijuana industry is no different than someone that owns a Subway shop, than that is when I would personally stop worrying and that is a long way away the way it looks right now.

 

I am not an attorney or attorney spokesman.

[trichcycler]

well said PotGod, I like you already

[trichcycler]

highlander, I bet the devil is in the details.

are you at liberty to share any of the case?

 

I think you've already known of these exact  issues all along. Wink Wink has been the score, isn't right, but it is what it is for now

[t-pain]

where exactly in section 4 do you see transfers only protect usable marijuana? because i'm not seeing that at all.

[Highlander]

I think I already have a solid answer prepared. But I thought I'd float the question through the community in the hope of better ammunition. If you have some input as to how a CG is protected in transferring seeds, plants, stalks, and wet marijuana, that's what I'm looking for. I'm looking for answers - not more questions.

[t-pain]

i would say sec4b's protection for assisting a patient with cultivation, manufacture, transfer and delivery cover seeds stalks roots, clones, plants.

 

assuming the patient has the right to possess plants, of course!

 

but i'm no fancy pants lawyer.

 

 

might be tricky for a cg that doesnt have rights to possess plants. i would suggest not possessing clones/cuttings or plants if you are a cg who has no possession rights. seeds might be ok.

[cristinew]

The COA now will say stems and seeds are illegal per public heath code , And they are not protected under the MMMA   So the charges for possession of marijuana for the stems can proceed in court ,,, Give them max Judge,

[t-pain]

there have been scares saying anything thats not usable marijuana aka "unusable marijuana" is illegal.

 

 

although we havent really heard of any (or more than a very small few) where judges have agreed with that. i'd say if coa was going to try that they would have already.

[Highlander]

The COA now will say stems and seeds are illegal per public heath code , And they are not protected under the MMMA   So the charges for possession of marijuana for the stems can proceed in court ,,, Give them max Judge,

To cristinew and Tpain. We are getting to the point here. Section 4 allows a CG to help a patient with "marijuana," which includes seeds, roots, and stalks and therefore, live plants. The fact that section 4 uses the term, "marijuana" as differentiated from " usable marijuana" (leaves and flowers) is key. It seems that section 4 protects a CG to provide more than just "usable marijuana" but also protects a CG for providing any marijuana.

[AmishRnot4ganja]

At this point in time, the best we can hope for may be that Obama has lots of ink in his pardon pen.

[Restorium2]

The Michigan Medical Marihuana Act was intended to cover all parts of the plant (obviously). Only the usable parts were to be applied to the 2.5 ounce limit. 

 

Any prosecutor that tries to prosecute a legal grower or patient for the unusable parts of the plant is just grasping at stalks. 

 

Just because they have been transferred doesn't change that they are legal to have if you are legally registered.

[Restorium2]

I think this is one of those things that's just so obvious that a person will look around it because it's right in your face. 

 

Like 1 + 1 = 2  It can seem too obvious to be the answer. Too easy. Why would anyone even wonder how 1 + 1 can equal 2? If someone is actually questioning it there must be some trick right? Ah, no, no trick at all. 1 + 1 =2 all the time. 

Edited March 17, 2016 by Restorium2

[Restorium2]

In further reflection I wanted to add; As long as the roots are cut off, then it's not still a plant. If the roots were still on it could be described as a plant. That could be trouble.

[Restorium2]

(5) As used in this section, "plant" means a marihuana plant that has produced cotyledons or a cutting of a marihuana plant that has produced cotyledons.

 

A plant must be somewhat less than a plant at some point of dismemberment. 

[imiubu]

I thought cuttings/ clones don't produce cotyledons, only seedlings do?

[Restorium2]

Plants are: 

1. a living organism of the kind exemplified by trees, shrubs, herbs, grasses, ferns, and mosses, typically growing in a permanent site, absorbing water and inorganic substances through its roots, and synthesizing nutrients in its leaves by photosynthesis using the green pigment chlorophyll.

[t-pain]

if you think you can argue the definition of a plant when you are in court, good luck!

[trichcycler]

I thought cuttings/ clones don't produce cotyledons, only seedlings do?

You Rock  Botanical Babe!!   :wub:but put this under your hat for now.

+1

Edited March 17, 2016 by grassmatch

[trichcycler]

in the case of dicot seedlings whose cotyledons are photosynthetic, the cotyledons are functionally similar to leaves. However, true leaves and cotyledons are developmentally distinct. Cotyledons are formed during embryogenesis, along with the root and shoot meristems, and are therefore present in the seed prior to germination. True leaves, however, are formed post-embryonically (i.e. after germination) from the shoot apical meristem, which is responsible for generating subsequent aerial portions of the plant

 

https://en.wikipedia.org/wiki/Cotyledon

[garyfisher]

Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

[Restorium2]

if you think you can argue the definition of a plant when you are in court, good luck!

When someone tries to say a dead plant without any roots is still a living plant then you would have to argue that. Just like this case.

 

If you think you can't argue it then you will be faced with all kind of injustices running right over you in court. 

 

Next, they will say a bud is a plant. We always have to fight every aspect of our count in court. Mostly because the lead attorney in the state doesn't give our law any respect. He sets a bad example for other bad actors. If it has no roots because they have been cut off then it's not a plant. If you can't convince a jury of that then maybe you shouldn't be an attorney?

[bobandtorey]

I think this is one of those things that's just so obvious that a person will look around it because it's right in your face. 

 

Like 1 + 1 = 2  It can seem too obvious to be the answer. Too easy. Why would anyone even wonder how 1 + 1 can equal 2? If someone is actually questioning it there must be some trick right? Ah, no, no trick at all. 1 + 1 =2 all the time. 

 

Thank you 

 

420 peace your Math seams right to me but it may not work in Oakland County i knew someone that was living with his girlfriend she had 10 plants 2 inch tall he had 11 plants the same  size 

they both where charged with 21 plants.

 

When they got to court the State put their case's together now they have 42 plants witch put them over plant count so my point is your Math doesn't add up in Oakland County 

because Oakland County uses the new Math 2+2 = 8 

[bobandtorey]

if you think you can argue the definition of a plant when you are in court, good luck!

Thank you i also agree 

All the questions could be answered if people would go to court support and see for themselves just how things really are