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Appeals Court Clarifies “Usable Medical Marijuana”

Clarkston Legal Aug. 1, 2017

How do you determine the weight of usable medical marijuana? That has been at the heart of many medical marijuana cases here in Michigan.

For over a decade, the Michigan Medical Marijuana Act has arbitrarily limited care providers to 2.5 ounces of usable medical marijuana after a harvest, and up to 12 plants per patient during a grow cycle. A skilled grower would be legal before a harvest, but illegal after the harvest. Well grown moisture-laden plants weigh more than the 2.5 ounce limit.

Two months ago, the Michigan Court of Appeals decided People v Manuel, a medical marijuana case from Ingham County. In that case, the Michigan State Police seized 71 marijuana plants and just over a kilogram [approximately 42 ounces] of allegedly dried and thus “usable marijuana”.

An Ingham County Circuit judge granted the accused immunity based on section 4 of the Medical Marijuana Act. The Court of Appeals affirmed this determination.

This published case may become moot after December when the lid gets blown-off the entire medical marijuana industry. The new licensing system provides for industrial-sized grows, seed to store inventory, testing and transport of usable medical marijuana.

In 2012, the Michigan Legislature amended the meaning of the key phrase, “usable marijuana” to mean, “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant”. The Manuel case focused on the exact meaning of “dried leaves, flowers, plant resin, or extract.

For those interested, here is the crux of the Court of Appeals’ analysis:

At the evidentiary hearing, [MSU Professor] Telewski testified the weight difference in the marijuana from the time Rozum weighed it immediately after the search (1,195 grams) to the time [MSP forensic scientist] Schafer weighed it in the laboratory on July 2, 2014 (1,068 grams) was best explained by a “loss of moisture, so the material on the earlier date weighed more because it had a higher moisture content than the material that was subsequently weighed several weeks later.”

Although Telewski recorded the weight of the marijuana as 1,169 grams on December 22, 2015, unlike [MSP Detective] Rozum and Schafer, he weighed the marijuana in its packaging and acknowledged that he did not calibrate the scale before taking the weight. Telewski opined that marijuana could take anywhere “from a few days to 14 days” to dry. Defendant testified that he had started drying the marijuana “two or three days” before Rozum executed the search warrant. He planned to keep the material drying “about six, seven days more”. This evidence suggests that the marijuana defendant possessed was “drying” rather than “dried”.

We note that Rozum provided some testimony to the contrary. Specifically, Rozum described the marijuana he found in the tins on the day of the search as “dried marijuana,” explaining that it “felt stiff, rough, dry,” and that it was “crunchy”. [Bracketed text supplied]

Under our system of laws and court rules, the trial court has wide discretion to resolve factual disputes; an appeals court will only disturb such resolutions when there is an “abuse of discretion”; an abdication of reason.

The Manuel case illustrates this principle. Creating usable medical marijuana is an agricultural process. The harvester relies on certain tried and true agricultural processing techniques and available science.

One of the components of the plant and flower process is drying the plant material. It only stands to reason that plants lose water weight during this part of the commodity process.

Our law firm is aware of a few cases where, somewhere along the trail of prosecution, a defense attorney had enough sense to request that the evidence be brought into court [or, more precisely, into an experts laboratory] and weighed in the later stages of the proceedings, not at the beginning.

The weight of the usable medical marijuana thus becomes a moving target for counsel on both sides. The defendant does not want the sheriff to control the process of weighing the collie weed.

We Can Help

In December 2017, the State of Michigan will begin assessing applications for a series of new medical marijuana licenses. Three classes of grow licenses, based on plant numbers in the hundreds, are available. This new licensure will industrialize and regulate the medical marijuana industry.

If interested in applying for one of the state’s new licenses, contact our firm to schedule a free consultation.