Monthly Archives: August 2011

MUST READ: YPSILANTI: City to sit tight until state Supreme Court addresses medical marijuana dispensary issue

Summary: Ypsilanti may not enforce the Court of Appeals medical marijuana/dispensary decision until the Supreme Court makes a ruling. Story below…

For now, the city of Ypsilanti will await a ruling from the Michigan Supreme Court before it takes any action regarding recent appellate court decision concerning medical marijuana dispensaries.

On Wednesday, the Michigan Court of Appeals ruled that “medical use,” as defined in the Michigan Medical Marihuana Act, does not include “patient-to-patient sales.” The act was passed by 63 percent of Michigan voters in 2008.

“At this time, I don’t foresee the city administration doing anything,” said City Attorney John Bar Wednesday. “We are watching, the city is cognizant of it. If it appears we should take action than we will.”

On Thursday, Barr said he was writing a draft opinion for City Manager Ed Koryzno as how the city should handle the situation.

In February, the city adopted ordinances regarding the growing and dispensing of medical marijuana as well as zoning. Shortly thereafter, it began issuing permits.

Ypsilanti now has four dispensaries and a licensed grow facility still in the planning stages.

The case involved the Mt. Pleasant-based Compassionate Apothecary, LLC. The dispensary, which opened in May 2010, is owned and operated by Brandon McQueen, a patient and primary caregiver, and Matthew Taylor, also a caregiver.

According to the ruling “…the ‘medical use’ of marihuana, as defined by the MMMA, does not include patient-to-patient ‘sales’ of marihuana, and no other provision of the MMMA can be read to permit such sales. Therefore, defendants have no authority to actively engage in and carry out the selling of marihuana between (dispensary) members.”

The ruling states the dispensary can be shut down as a public nuisance as it is in violation of the Public Health Code.

The dispensary has 27 storage lockers that are rented to its members for $50 a month. Patients who use the facility rent lockers where they sell excess marijuana they have grown but do not need to use to treat their condition. In addition, a caregiver can rent a locker if the patient does not need all of the marijuana grown by the caregiver. Both patients and caregivers are able to store 2.5 ounces and a caregiver can store 2.5 ounces for each patient.

Members paid $5 per month and the owners of the dispensary retain at least 20 percent of the sale price.

In the first two and a half months of its operation, the dispensary sold approximately 19 pounds of marijuana. Its “farmers” made more than $76,000. Before expenses were paid, the dispensary earned approximately $21,000.

In July 2010, a complaint was filed by Isabella County by Prosecuting Attorney Larry Burdick against the dispensary, stating its operation was not in accordance with the MMMA and was a public nuisance because it violated the Public Health Code. The trial court found the dispensary was operating in accordance with the MMMA and the decision was appealed.

Barr said the MMMA has created a lot of uncertainty and problems because it is so poorly drafted.

“A ‘good law’ gives direction so people know what they can and cannot do whereas the medical marijuana law essentially gives people a get of jail free card so they can do certain things and not be prosecuted,” Barr said.

“It’s caused a lot of uncertainty,” he said. “Most cities and municipalities have a lot of unanswered questions.”

Barr said the city did not try to say if the law was legal or not. Instead, it passed zoning regulations and other ordinances regarding the dispensaries.

Included in the legislation is a provision stating it does not give the dispensaries greater protection that it would have otherwise because the use and sale is against federal law. If state law was found to not be legal or valid, it does not guarantee anything, he said.

“They’re acting at their own peril,” he said.

Court opinions have been issued in both Oakland and Wayne counties and the Michigan Supreme Court has stated it will hear appeals regarding the matter.

Barr said there is still a level of uncertainty that will remain until the Michigan Supreme Court determines what the law really means. He emphasized the city did not wait for that interpretation, had a number of meetings, passed ordinances and therefore have a plan in place.

“We’re watching to see how the court opinions affect our plan,” he said.

State Attorney General Bill Schuette praised the ruling, saying it was a victory for public safety and local communities.

“This ruling is a huge victory for public safety and Michigan communities struggling with an invasion of pot shops near their schools, homes and churches,” said Schuette in a press release. “Today the Court echoed the concerns of law enforcement, clarifying that this law is narrowly focused to help the seriously ill, not the creation of a marijuana free-for-all.”

According to the release, Schuette will send a letter to the state’s 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and provide instructions on how to file similar nuisance actions to close dispensaries in their own counties.

Michigan is one of 17 states in addition to the District of Columbia that has active programs allowing cultivation and possession of marijuana for certain medical conditions.

via The Ypsilanti Heritage

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OWI REDUCED to Careless Driving!

At Neil Rockind, P.C. we  strive to get the BEST possible outcome for our client.

This is true in each and every case that we defend, including drunk driving cases. Many law firms try and spend the least amount of time possible on drunk driving cases. Neil Rockind, P.C. is NOT one of those firms.

When we take on a drunk driving case we flyspeck each and every angle of the case, from the traffic stop to the sobriety testing to the arrest to the breath tests. If there is a problem we will find it and we will challenge it. No problem is too small. Datamaster times don’t match up? We challenge that. Officer failed to mention the smell of intoxication? We challenge that. Supervisor failed to sign the Datamaster logs? We challenge that. Trust us: if there is a problem with the prosecution’s case, no matter how small, we will find it and do EVERYTHING we can to make that problem the basis for a reduction or a dismissal.

Such was the case today with a client charged with an OWI 1st. After watching the video of the inside of the police department, we noticed that the times that the officer stated that he had conducted the breath test didn’t actually match up to the clock on the wall. Based solely upon that finding, we filed a motion challenging the breath tests results. Today was the scheduled date for an evidentiary hearing. Neil Rockind showed up ready to hold the hearing – but the prosecutor had different plans. She knew that we had most likely caught the officer in a series of lies and she wasn’t ready to have him testify. That’s when she offered to dismiss the OWI in exchange for a plea to Careless Driving. Our client took the deal happily.

When it comes to drunk driving cases, the defense really is “all in the details.” Contact Neil Rockind, P.C. now at 248-208-3800 if you want someone who will truly examine those details and fight to receive the best possible result.

United States Court of Appeals rules that citizens have a Constitutionally protected right to record police

File this in the “Big Win For Free Speech” column. On Friday, August 26th, 2011, the United States Court of Appeals for the 1st Circuit ruled that U.S. citizens have the right to publicly record police who are performing their duties as law enforcement officers. Further, this right is protected by the 1st and 4th Amendments to the United States Constitution.

Pursuant to this opinion, if you witness a police officer doing something that you believe should be seen by the rest of the world, according to the 1st Circuit Federal Court of Appeals you are well within your Constitutionally protected rights to take out your cell phone, publicly record that officer (both audio and video) and throw the video up onto the internet.

Granted, this is only one Federal Court of Appeals (and different federal courts are permitted to rule differently until the U.S. Supreme Court makes a decision), but it is likely that the other federal courts will follow suit.

The opinion is a short read and extremely interesting. Check it out here:

Simon Glik v. John Cunniffe, No. 10-1764

Neil Rockind on WILS Radio Lansing Discussing the Medical Marijuana Dispensary Ruling

Click here to listen to the Interview:

Neil Rockind on WILS discussing the dispensary ruling

Michigan pot dispensaries advised to close

The hundreds of medical marijuana dispensaries in Michigan are being advised to stay closed indefinitely, legal experts said Thursday in the wake of a major appeals court ruling.

The ruling, handed down Wednesday, banned medical marijuana sales at a facility in Mount Pleasant. It prompted the estimated 400 to 500 dispensaries in Michigan to shut down and outraged the nearly 100,000 carriers of medical marijuana cards.

“They have to stay closed until further notice,” said Paul Tylenda, a Grosse Pointe Park lawyer. “If they open, they are at risk of getting treated like criminals.”

It is unclear when, if ever, any move will change the court’s interpretation of the 2008 medical marijuana law.

“Unless there are some individuals who are willing to take the risk of finding novel business plans, then dispensaries are going to be a thing of the past,” said Neil Rockind, a Southfield-based attorney.

Earlier Thursday, police raided two medical marijuana dispensaries in Ann Arbor.

A joint Livingston and Washtenaw Narcotics Enforcement Team executed search warrants at the Liberty Clinic and MedMar A2 Compassionate Health Care, where three men were arrested.

Officials said the raids were not related to Wednesday’s court action.

But Charles Ream, president of MedMar, wondered whether Ann Arbor was targeted because of its light penalties for smoking marijuana. He said police confiscated pounds of marijuana, thousands of dollars and reams of patient files.

“If they stop me, they can stop anyone,” Ream said. “People should be afraid now.”

Some patients were worried Thursday about losing access to their medicine.

For 20 years, Michael McShane of Ferndale has battled squamous cell carcinoma, the second most common skin cancer. He’s had four surgeries, six reconstructive surgeries and other treatment during the four times it has returned.

On the fifth recurrence, he started to use an essential marijuana oil on the tumors and says they have since shrunk.

McShane said there’s no way he’s going to find this on the street. “I’m trying to stay alive,” said McShane. “This isn’t politics for me. This is the real deal.”

via The Detroit News

Michigan appeals court says medical marijuana can’t be sold at dispensaries

A medical marijuana operation that participates in selling the drug to consumers can be shut down as a public nuisance, the Michigan Court of Appeals said in a decision announced this morning.

The three judge panel, ruling on a case out of Isabella County, said that the Michigan Medical Marijuana Act “does not include the patient-to-patient ‘sales’….”

The decision can be used as precedent and applied to other cases.

A lower court had said that said the Compassionate Apothecary was operating within the law when its operators allowed patients or caregivers to buy marijuana that other members had stored in their lockers rented from the facility. The owners, according to court records, provided the mechanism for the sales and took a 20 % cut of the sale price.

But the appellate judges in their 17-page opinion said that the Medical Marijuana law doesn’t include sales as “medical use,” and therefore it does not trump existing anti-drug laws.

“Defendants have no authority to actively engage in and carry out the selling of marijuana between … members,” the order read. “We conclude that defendant’s operation … is a public nuisance.”

The ruling supports the Isabella County Prosecutor’s effort to close the operation as a public nuisance that violates the state’s Public Health Code.

The unanimous order was signed but Appellate judges Joel P. Hoekstra, Christopher M. Murray and Cynthia Diane Stephens.

via Freep