A Michigan traffic safety law that prohibits the operation of a motor vehicle by persons who possess any presence of THC in their blood, regardless of whether or not they are behaviorally impaired by the substance, may not be strictly applied to state-qualified medical cannabis patients. So decided the Michigan Supreme Court on Tuesday in the case People v Koon.
In a unanimous opinion, the Court determined that legal protections extended to state-qualified patients under the Michigan Medical Marihuana Act, enacted by voters in 2008, supersede the state’s zero tolerance, internal possession law. As a result, the Court determined that state prosecutors must establish that authorized patients charged under the statute are actually impaired by their cannabis use in order to gain a DUI criminal conviction.
According to the syllabus of the Opinion:
“The MMMA [Michigan Medical Marihuana Act] does not define what it means to be ‘under the influence,’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person. Thus, the MMMA’s protections extend to a registered patient who internally possesses marijuana while operating a vehicle unless the patient is under the influence of marijuana. The immunity from prosecution provided under the MMMA to a registered patient who drives with indications of marijuana in his or her system but is not otherwise under the influence of marijuana inescapably conflicts with MCL 257.625(8) [the state's zero tolerance per se DUI law], which prohibits a person from driving with any amount of marijuana in her or system.”
The state’s zero tolerance per se drug law remains applicable to non-patients. Under such laws, motorists are guilty per se (in fact) of a criminal traffic safety violation if they engage in the act of driving while detectable levels of certain controlled substances or, in some cases, their inert metabolites (byproducts) are present in the defendants’ blood or urine. Proof of actual impairment is not a requirement for a conviction under the law.
To date, ten states — Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Rhode Island, Utah, and Wisconsin — have enacted legislation imposing zero tolerance per se thresholds for the presence of cannabinoids and/or their metabolites. (State-authorized medical cannabis patients in Arizona and Rhode Island are exempt from prosecution under these per se statutes unless the state can provide additional evidence of psychomotor impairment.)
Five additional states impose non-zero-tolerant per se thresholds for cannabinoids in blood: Montana (5ng/ml — law takes effect on October 1, 2013), Pennsylvania (1ng/ml), Ohio (2ng/ml), Nevada (2ng/ml) and Washington (5ng/ml). Most recently, Colorado lawmakers approved legislation stating that the presence of THC/blood levels above 5ng/ml “gives rise to permissible inference that the defendant was under the influence.” State-qualified patients in Colorado, Montana, and Nevada are not provided legal exemptions from these statutes, although legislation is presently pending in Nevada to do so.
Such caution is similarly expressed by the United States National Highway Transportation and Safety Administration, which acknowledges: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”
A 2013 review of per se drugged driving laws and their impact on road safety found “no evidence that per se drugged driving laws reduce traffic fatalities.”
Longtime Florida activist Cathy Jordan, a 63-year-old woman who consumes cannabis to mitigate symptoms of amyotrophic lateral sclerosis (ALS aka Lou Gehrig’s disease), a debilitating condition that she has lived with since 1986, today filed a suit against Sheriff Brad Steube of Manatee County, FL.
Ms. Jordan alleges wrongful conduct on the part of the sheriff’s department when, on February 15, 2013, they raided her home and confiscated 23 medical cannabis plants, which were being cultivated for her by Cathy’s husband Robert Jordan. The Jordans were both cooperative when the sheriff’s department arrived at their home, and they acknowledged they were growing medical marijuana for Cathy’s medical use. The police raid of the Jordan’s home came just days after lawmakers introduced legislation, the Cathy Jordan Medical Cannabis Act, which sought to authorize the physician-supervised use of cannabis for those diagnosed with serious debilitating conditions. (Florida lawmakers failed to hold hearings or vote on the measure.)
After the Manatee County State Attorney’s office reviewed the facts of the case, they issued a memorandum on April 2, 2013 declining to prosecute either Cathy or her husband. The Manatee County State’s Attorney’s office found that they could not likely overcome a medical marijuana necessity defense, which would be raised by the defendant should a prosecution be initiated. However, the sheriff’s department has refused to return any of the cannabis that they confiscated from Ms. Jordan during the February 15 raid.
With this lawsuit, the plaintiffs seek a declaratory judgment finding that they have a legal right to cultivate and possess medical marijuana under Florida law; an injunction barring the sheriff’s department from making further seizures of medical marijuana from Cathy and Robert Jordan; and an injunction barring the initiation of criminal charges against either of the plaintiffs for their continued cultivation and possession of medical marijuana.
The lawsuit has been filed by Norm Kent of Fort Lauderdale, Chair of the NORML Board of Directors. NORML intends to file a friend of the court brief in the case once the defendants are served.
Kent stated: “This suit embodies NORML’S commitment to patients who have a medical need for marijuana, while simultaneously showing how the responsible use of cannabis by adults should not be restricted by law enforcement authorities. We intend to prevail in this suit so that seriously ill patients like Cathy no longer have to fear arrest or state interference for simply using their medicine.”
Added NORML Legal Counsel Keith Stroup: “Cathy Jordan is a courageous woman who has been fighting for many years to legalize the medical use of marijuana for herself and other seriously ill patients. We are proud to stand with Cathy and Robert Jordan to challenge he senseless arrest of patients who use marijuana medically.”
Florida is not among the 18 US states that presently exempt qualified patients from arrest for engaging in physician-authorized cannabis therapy.
The California Supreme Court ruled today that municipalities possess the legal authority to prohibit the establishment of medical cannabis dispensaries.
The unanimous ruling upheld a 4th District Court of Appeals opinion (City of Riverside v. Inland Empire Patients’ Health and Wellness Center, Inc.) which held that local zoning measures banning the establishment of brick-and-mortar facilities that engage in the distribution of cannabis to state-authorized persons are not preempted by state law. Other lower courts had ruled against such local bans, arguing that cities can’t use zoning laws to bar activity legal under state law.
It is estimated that some 200 California cities presently impose moratoriums on medicinal cannabis facilities. At least 50 municipalities have enacted local regulations licensing dispensaries.
Opined the Court:
“We have consistently maintained that the CUA (the California Compassionate Use Act aka Proposition 215) and the MMP (the Medical Marijuana program Act) are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”
Although language included in Proposition 215 explicitly called for the state government “to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,” to date, lawmakers have failed to enact any specific statewide regulations regarding the retail production and distribution of cannabis to those patients authorized to consume it.
Commenting on the ruling, California NORML Coordinator Dale Gieringer said, “The court essentially affirmed the status quo. Local governments may choose to allow or limit dispensaries as they please. The unfortunate result of this decision is to leave many needy patients without legal access to medical marijuana in their communities, thereby promoting illegal black market suppliers. It is time for the state and federal governments to step up to the plate and fulfill the mandate of Prop 215 to implement a system of ‘safe and affordable’ access for all patients in medical need.”
Legislation is presently pending in both the California Assembly (AB 473) and Senate (SB 439) to impose statewide regulations governing the dispensing of marijuana produced for medical purposes.
Full text of the California Supreme Court’s opinion is available online here.
Today I share with you wonderful news from an all too conservative state, Florida, where the sun shines on everything but justice for cannabis users.
Just a few weeks ago, I announced that the ‘New NORML’ would have an active, working legal committeethat would make a difference for all of us.
Last month, State Senator Jeff Clemens in Tampa announced that he was introducing a medical marijuana bill in Florida, which would allow for the establishment of dispensaries in our state.
The bill was named the ‘Cathy Jordan Medical Cannabis Act’, in honor of a woman who has beenopenly using cannabis as medicine for over a quarter century, championing our cause from her wheelchair while living with an incurable condition- ALS; Lou Gehrig’s disease.
Backed by her loving husband, Bob, who cultivates two-dozen plants on their farm for her personal use, Cathy has been a public advocate for cannabis law reform. Here she is:
One day after the state senator introduced the medical necessity legislation, publicizing her name and address, the DEA and Manatee County Sheriff’s Office paid her a not-too-polite visit, raiding her home, dressed in swat uniforms, armed with machine guns and wearing masks, seizing her cannabis and arresting her husband for cultivation. Her wheelchair was no defense.
One NORML lawyer from our NLC legal committee immediately stepped up to the plate to come to her defense. Florida CAN, the Cannabis Action Network, contacted Michael C. Minardi, of Stuart, Florida. He undertook the defense.
Michael had already prevailed on a medical necessity case on the west coast of Florida, and he at once met with Bob and Cathy Jordan. Both were adamant that they would take no pleas, but instead sought to fight for their right to use marijuana as medicine.
Based in South Florida, I volunteered with another NLC Committee member, my law office partner, Russell Cormican, and entered into a civil retainer agreement with Cathy Jordan, to prosecute a pro bono civil legal action seeking a declaratory judgment that Cathy’s possession of cannabis warranted a judicial order stating that such ownership was entirely medicinal and lawful.
I could not do it alone, so I contacted NLC Committee member Matt Kumin, who immediately agreed to join the cause on behalf of NORML, coming in as amicus curiae. “This is an impact case,” he concluded.
Together, we decided that we had a viable claim Cathy had a legal right to grow her medicine, and a court would conclude as much. Matt brought in two more NLC colleagues, Alan Silber and David Michael. These guys are already arguing tough cases in the Ninth Circuit. But we have a good plaintiff and a strong case.
This past Monday, the State Attorney dismissed all charges against Cathy and Bob Jordan. The decision by the State Attorney, explaining why he filed a ‘no information.” ratifies the defense of medical necessity for patients, and caregivers as well. The prosecutor’s determination goes beyond the customary and routine post of ‘case declined.’
The decision outlined by the chief prosecutor goes out of its way to acknowledge the legal basis of the medical necessity defense and the ‘progressive, neurodegenerative disease’ that Cathy Jordan deals with daily. The state attorney said he could not in ‘good faith’ proceed with a criminal prosecution against an individual with such a compelling medical reason to use marijuana. It was a courageous decision to see a prosecutor protect a pot patient.
The result came about in no small part to Bob Jordan, Cathy Jordan’s husband. He refused to accept a probationary plea offer. “If I could handle Vietnam,” he told me last week, “I can take whatever the State wants to try and hit me with. I am protecting my wife. No deals. No nothing. I want a trial. I want a jury to see my wife and try to convict her.”
Michael C. Minardi and his client even refused to cop a plea to a deferred prosecution. Matt. Kumin, who has never met Bob, called him, “my hero.” Armed with solid case law, a determined defendant, and a courageous lawyer- Michael Minardi- the good guys prevailed.
A talented team of NLC amicus curiae attorneys are now preparing to go to court and seek a judgment declaring that the use of cannabis by Cathy Jordan should continue as an exception to Florida drug statutes, based on her use being lawful, medically necessary, and legally protected. Hell, we might even get her pot back through a replevin action.
Unfortunately, Florida is a conservative state. I won’t mislead you. The Cathy Jordan Medical Cannabis Bill is already ‘stuck like chuck’ in a legislative committee.
However, also due to the efforts of NLC Committee member, Michael C. Minardi, the criminal prosecution of Cathy and Bob Jordan is dead in the water.
Remember the TV show, ‘The Naked City,’ that ‘there are 8 million stories in the Naked City; this has been one of them.’
My friends, there are thousands of Cathy Jordans across America who still need our help. There are hundreds of you capable of assisting so many of them. The spiritual rewards of engaging such tasks enrich your soul and make your practice so much more meaningful.
Please consider also asking a friend to help expand ranks by joining NORML today. In fact, this week we are promoting new memberships by offering up a NORML Hemp Baseball Cap. Wear it to the ballpark, and let everyone know that it is NORML to smoke pot. Cheer for your home team, but stand up for freedom.
Today, all of us throughout the country celebrate the victory of Cathy and Bob Jordan. We also thank the lawyer, Michael C. Minardi of Stuart, Florida, who stood up for them.
We are all cannabis warriors with stories of our own to tell, lives of our friends to illuminate. Never forget the cause you are fighting for is more than to torch up a joint. It is to light a torch for personal sovereignty and individual freedom.
Chair, NORML Board of Directors
The 2013 NORML Aspen Legal Seminar registration site is now live on the NORML website, and we urge you to register now for what will surely be another exceptional legal seminar and wonderful long-weekend with friends and colleagues in the Rocky Mountains. The dates for the seminar this year are Thursday, May 30 through Saturday, June 1 at The Gant, our usual venue in Aspen.
The program this year will include such timely topics as the legal and ethical obligations of attorneys who represent cannabusinesses; the latest science and law regarding DUID cases; blocking the government from getting your client’s email; avoiding deportation for your non-citizen clients; the changes in probable cause in those states that have some form of legal marijuana; child custody issues for marijuana smokers; various ways to effectively conduct voir dire; all you need to know about cellular telephone tracking; and using your iPhone and iPad for the defense.
We will also be holding our annual benefit dinner at the lovely home of Chris and Gerry Goldstein on Friday evening, and we have been invited back to Owl Farm, Hunter S. Thomspon’s old homestead, for a cookout and live country music on Saturday afternoon, as guests of Hunter’s widow, Anita Thompson.
Please plan to join us in Aspen this spring, and experience first hand what it feels like to live in a state that has fully legalized marijuana.
Those wishing to make your hotel reservations early can call The Gant (970-925-5000), and let them know you are attending the NORML legal seminar to qualify for our block of reduced-rate rooms.
We hope to see you in Aspen in late May.
Keith Stroup, Esq.
NORML Legal Counsel