Attorney Neil Rockind Discusses New Laws About Driving With Medical Marijuana

This article was originally published on the Marijuana Patients Organization site on January 7, 2013.

After decades of prohibition, an ill-designed and ineffective “war on drugs” and state government’s refusing to re-address the outright ban on marijuana use, even for medical purposes, voters in several states took action. The general population did what their representatives in government would not, they initiated “initiatives”, a direct form of democracy where voters bypass the legislature and instead take issues to the general public. In 2008, Michigan joined a chorus of states and approved medical marijuana in Michigan. In April of 2009, the legislature enacted laws and regulations, i.e., the Michigan Medical Marihuana Act.

Unfortunately, rather than viewing the Initiative as a call to limit marijuana prohibition, the Michigan Legislature decided to enact prohibitions despite the Medical Marijuana Act. This time it turned its attention to medical marijuana patients and caregivers and how they transport medical marijuana. On December 15, 2012, the Michigan Senate in its last session before the new year, passed House Bill No. 4865. It is now law: Michigan Compiled Law 750.474. If anyone wanted to how the Michigan legislators view medical marijuana, look no further than this law.

In Michigan, it is illegal to transport guns inside the passenger compartment of a motor vehicle (unless the operator possesses a permit to carry a concealed weapon). The operator must store the gun in the trunk of the vehicle in an enclosed container or if in a vehicle without a trunk, store the gun in an enclosed container in the rear of the vehicle out of reach of any the driver and other occupants. MCL 750.474 treats useable marijuana, which patients and caregivers use as medicine, similar to guns! MCL 750.474 reads as follows:

[box style=”gray” ]Sec. 474. (1) A person shall not transport or possess usable marihuana as defined in section 26423 of the public health code, 1978 PA 368, MCL 333.26423, in or upon a motor vehicle or any self-propelled vehicle designed for land travel unless the usable marihuana is 1 or more of the following:

• (a) Enclosed in a case that is carried in the trunk of the vehicle.
• (b) Enclosed in a case that is not readily accessible from the interior of the vehicle, if the vehicle in which the person is traveling does not have a trunk.
• (2) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.[/box]

In other words, to the legislators, useable marijuana, i.e., medicine, is comparable to a gun for transportation purposes with one major exception: people licensed to carry a gun may keep the gun within their reach while people permitted to possess marijuana cannot.

Pursuant to MCL 333.26423(j), “usable marijuana” means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant. According to MCL 333.26424, patients and caregivers may possess limited quantities of “usable marijuana”. To them, usable marijuana is medicine. While others who use opiate derived drugs may keep them in their lap while driving or store them in their cup holder in the center console while driving, medical marijuana patients must store their medicine far away from them in an enclosure either in 1) the trunk or 2) the nether reaches of their vehicle should it not be quipped with a trunk. If they do not, they are potentially guilty of a misdemeanor.

Unfortunately, in their haste to treat medical cannabis like dangerous guns, the legislators committed another foul — they drafted a statute without terms or definitions, once again leaving medical marijuana patients and caregivers to have to speculate as to how to comply.

What is a case? Need it be a box or a rectangle? Does it have to be hard? Does it have to be made a hard material? Can it be made of soft materials? If started off as a box or rectangle but got dented or pushed in, is it still a “case”? Can a case lose its status as a case? Can something else be stored in the case along with the medical cannabis?

If it is drying vs dried, can a patient keep his medical cannabis inside the vehicle? What about edibles? Where do edibles fall into the mix? Must the case have a locking mechanism? A closing mechanism? Will a box held together with a rubber band or a string count as “enclosed”?

A sedan typically has a trunk but what about vehicles that have no trunk but whose back seats are down? If the cannabis case slides across the rear hatch without knowledge of the driver, is the driver guilty of a crime? What if the case was in the rear area of the vehicle but was forced there by a hard stop at a light or by a traffic accident?

Other legal issues abound as well. To modify the Medical Marijuana Act, a 3/4th’s vote, i.e., a super-majority, is required. HB 4856 was never put to a 2/3rd’s vote: it was put to a simple majority vote. While it is true that the votes in support of HB 4856 exceeded a super- majority, the bill was not evaluated in that way.

Sadly, patients and caregivers will be forced to fight out these concepts in court after being charged with this offense. It will be just one more obstacle that patients and caregivers have to overcome to use the medicine that they consider the safest and most effective: medical cannabis. Whether we like it or not, HB 4856 is here.

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