New Bills 2013

HB 4851

Public Act 512 (HB 4851): Definition of Enclosed Locked Facility (Indoors) – Summary
Originally, the MMA defined an enclosed, locked facility as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.” This original definition made no distinction about growing indoors or outdoors.

However, HB 4851 added clarifying language to the definition of an enclosed locked facility located indoors (It also placed new regulations on outdoor enclosed, locked facilities). Specifically, the Legislature adopted the following definition of an enclosed, locked facility, with the new language bolded:

a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient.

Definition of Enclosed Locked Facility (Indoors) – Analysis
This definition clarifies that an enclosed, locked facility must be “stationary” and “fully” enclosed with “functioning” or “secured” locks. Because patients and caregivers’ Section 4 protections depend on, in part, complying with the enclosed, locked facility requirement, this change in the law should prompt patients and caregivers to ensure compliance with any cultivation of marijuana.

Many patients and caregivers do not understand the consequences for failing to comply with the enclosed, locked facility requirement. If a patient or caregiver fails to keep his or her plants in an enclosed, locked facility, as defined above, they will lose their Section 4 protections. This means they can be subject to arrest and will likely be charged with the unlawful manufacture of marijuana, which is a felony offense.

The new definition for an enclosed, locked facility becomes effective on April 1, 2013.

HB 4851 Bona Fide Relationship

Public Act 512 (HB 4851): Definition of Bona Fide Physician-Patient Relationship

Of the four bills passed to amend the MMA, HB 4851 likely has the biggest impact on patients and caregiver’s everyday lives. Please continue reading for the details on the new definition for a “bona fide physician-patient relationship.”

Definition of Bona Fide Physician-Patient Relationship – Summary
Originally, the MMA never defined a “bona fide physician-patient relationship.” HB 4851 changed that. Now, there are a number of requirements that must be fulfilled to establish the required relationship. Specifically, the bill provides the following definition.

Bona fide physician-patient relationship means a treatment or counseling relationship between a physician and patient in which all the following are present:

(1) The physician has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.

(2) The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.

(3) The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marijuana as a treatment of the patient’s debilitating medical condition.

(4) If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the use of medical marijuana to treat that condition.

Definition of Bona Fide Physician-Patient Relationship – Analysis
One of the prosecution’s first line of arguments usually centers around whether a “bona fide relationship” exists. As a result, this new definition should not be ignored.

Importantly, many of the MMA’s protections are dependent upon the presence of a “bona fide physician-patient relationship.” Because this new law clarifies what benchmarks must be satisfied to reach this relationship, physicians and patients alike must proceed with caution and document their actions to satisfy the law.

It is worth noting that physicians must adapt to this standard to ensure their MMA protections. MCL 333.26424(f) requires physicians to examine and certify patients in the course of a “bona fide physician-patient relationship” in order to be immune from arrest and prosecution.

Beginning April 1, 2013, that relationship is now defined by the 4 prongs above.

Public Act 512 (HB 4851) – PDF

HB 4853 Selling Marijuana

Public Act 513 (HB 4853): Sentencing Guideline Classification for Selling Marijuana in Violation of MMMA

This bill makes selling marijuana in violation of the MMA a class “G” offense. Please continue reading to understand the effect of this sentencing classification.

Michigan Sentencing Guidelines
In Michigan, felony sentences are determined by the Michigan Sentencing Guidelines. In short, the Sentencing Guidelines assign a number of “points” based on a defendant’s prior criminal history and the details of the crime at issue. The points correspondence to a “sentencing grid” that provides a recommended range for the minimum term only. The maximum sentencing range is almost always determined by law.

The Sentencing Guidelines contain a number of different “sentencing grids” based on the severity of the crime. For example, Class A offenses use a sentencing grid for crimes punishable for life imprisonment. Class B offenses use a sentencing grid for crimes punishable for up to 20 years. Class C offenses use a sentencing grid for crimes punishable for up to 15 years, and so on. A link to the entire 2012 Sentencing Guideline Manual is available at the conclusion of this post.

HB 4853 – Summary
Selling marijuana to someone who is not allowed to use marijuana for medical purposes under the MMA is a felony pursuant to MCL 333.26424(k). The MMA states the maximum penalty is imprisonment of not more than 2 years, a fine of $2,000.00, or both, in addition to any other penalties for the distribution of marijuana.

HB 4853 clarified what sentencing grid should be used to determine the minimum sentence. Specifically, this bill states that violating MCL 333.26424(k) is to be scored on a Class G sentencing grid.

HB 4853 – Analysis
This legislative amendment will have little impact on the everyday lives of Michigan’s patients and caregivers. However, it does provide an important clarification for the efficient operation of the court system. This change takes effect April 1, 2013.

HB 4856 Transportation

Public Act 460 (House Bill 4856): Transportation of Medical Marijuana

House Bill 4856, part of the package of legislation passed in the lame-duck session, placed new regulations on the transportation of medical marijuana. For the details, please continue reading.

House Bill 4856 – Summary
House Bill 4856 amended the Michigan Penal Code by adding MCL 750.474. This new statute regulates how persons are permitted to transport useable marijuana in a vehicle.

Specifically, this bill requires useable marijuana to be either enclosed in a case that is carried in the trunk of the vehicle, or if the vehicle has no trunk, in enclosed in a case that is not readily accessible from the interior of the vehicle. Failure to transport useable marijuana consistent with those requirements is a misdemeanor, punishable by not more than 93 days imprisonment, a fine of $500, or both.

This bill became effective immediately.

House Bill 4856 – Analysis
It is worth noting this bill does not amend the MMMA itself. Thus, there could be a question of whether the “penalty” created by this bill can be applied to medical marijuana patients and caregivers.

If a patient or caregiver complies with Section 4 of the MMA, he or she is not subject to arrest, prosecution, and penalty in any manner. While Section 4 requires patients and caregivers to comply with the MMA as a whole, the new law regarding the transportation of useable marijuana is not contained within the MMA.

This begs the question, is a patient or caregiver that satisfies Section 4’s requirements subject to the penalty HB 4856 creates?

To be clear, we are not suggesting that anyone test this theory. To avoid arrest, all transportation of marijuana should comply with HB 4856‘s new requirements. This post is not legal advice, but rather, a an analysis of questions that may be raised in future criminal defense proceedings based on this new statute.

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