Monthly Archives: August 2011

MI COA: Dispensaries and Patient-to-Patient SALES of Medical Marijuana are ILLEGAL

Yesterday the Michigan Court of Appeals released their 17-page opinion in the case of State of Michigan v. Brandon McQueen d/b/a Compassionate Apothecary.

View the opinion here: PEOPLE v COMPASSIONATE APOTHECARY – COA Opinion 08-23-11

The Opinion, which was supported by all three judges and was authored by VERY CONSERVATIVE Judge Hoekstra, holds that:

1. Dispensaries are a public nuisance;

2. Dispensaries are NOT authorized by the Michigan Medical Marijuana Act;

3. Dispensaries that “sell” marijuana violate the Public Health Code;

4. Dispensaries that violate the Public Health Code are not excused by the Michigan Medical Marijuana Act;

5. Any BUSINESS that receives money, in order to facilitate the transfer of medical marijuana, is operating for a purpose other than to alleviate patients’ debilitating medical conditions – and therefore is not protected by the Michigan Medical Marijuana Act;

6. The Michigan Medical Marijuana Act does not authorize patient-to-patient “sales” of medical marijuana – which is the “delivery” or “transfer” of marijuana “plus the receipt of compensation”;

7. The “medical use” of marijuana does not permit the “sale” of marijuana – which is the “delivery” or “transfer” of marijuana “plus the receipt of compensation”;

8. No provision of the Michigan Medical Marijuana Act permits patient-to-patient “sales” of medical marijuana;

9. A patient or caregiver that “sells” marijuana is not entitled to the presumption that they are engaged in the “medical use” of marijuana;

10. “Using or administering” medical marijuana does not permit the “sale” of marijuana; “a person assists a registered qualifying patient with ‘using or administering’  marijuana when the person assists the patient in preparing the marijuana to be consumed in any of the various ways that marijuana is commonly consumed or by physically aiding the patient in consuming the marijuana”; and

11. “Because the ‘medical use’ of marijuana does not include the ‘sale’ of marijuana, [dispensaries] are not entitled to receive compensation for the costs of assisting in the ‘sale’ of marijuana between [dispensary members.]” In other words, dispensaries CANNOT collect a fee to facilitate the “sale” of marijuana.

However, in footnote 17 on page 14 of the opinion, the Court said this: “…we need not, and do not, reach the issue whether the MMMA permits UNCOMPENSATED patient-to-patient conveyances of marijuana.”

These are the findings of the Court of Appeals.

The bottom line is this: Pursuant to the State of Michigan v. McQueen, medical marijuana dispensaries in Michigan are ILLEGAL if any money exchanges hands. Per  footnote 17, it seems like uncompensated patient-to-patient transfers may possibly be legal – but if any money is involved AT ALL – then the transaction is ILLEGAL.

Dispensary owners: Take note and act accordingly.

– Colin A. Daniels, Esq. of MedicalMarijuanaLawyers.com

 

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EVIDENCE SUPPRESSED!

Several months ago our office took on A.B.’s case in the Oakland County Circuit Court. Initially A.B. had retained another attorney who he grew dissatisfied with after the attorney told A.B. that he wasn’t going to be able to do anything for him.

That’s when A.B. called us.  He knew that the police had violated his constitutional rights – he just needed attorneys who would be willing to stand up and fight for him in order to prove it. And that’s exactly what we did.

The facts were dubious at best: A.B. was at home sleeping early on a winter morning when he was awoken by a knock on his front door. He went to the door, opened it slightly and saw two Michigan Department of Community Corrections Officers standing on his front porch. At that point, one of the officers told A.B. that they were looking for his brother for a parole violation. A.B. told the officers that his brother was not there, but the officer’s ignored him and pushed past A.B. into the house.  The officers never asked for permission to enter the house. Instead, they simply assumed that because A.B. had opened the door, that he had thus “invited them inside.” Subsequent to entering A.B.’s house, the officers searched the entirety of A.B.’s home and found his medical marijuana and a firearm in his bedroom.

Based upon the illegal entry and search of his home, Neil Rockind, P.C. filed a motion to suppress the evidence found in his home and held an evidentiary hearing. At that hearing, the officers maintained that they had permission to enter and search the home. Yet, on cross-examination, their testimony fell apart.

During the amazing cross-examination, performed by Neil Rockind, the officers had to admit that the official report that they filed contained no mention of A.B. giving them permission to enter the house. Instead, in their official report, the MDOC officers simply stated “we were allowed entry to the home.”

The officers never noted that they asked for consent to enter, or were given consent to enter, or asked for consent to search, or were given consent to search. This, along with several other facts (the officers didn’t read A.B. his Miranda rights before asking him questions; the officers searched A.B.’s back yard without a warrant; and the officers never had A.B. sign a consent to search form) led the court to the conclusion that it was not credible that the MDOC officers had actually received consent to enter and search A.B.’s home.

A.B. was facing several felonies: Manufacture/Distribution of Marijuana, Felon in Possession, and Felony Firearm. Further, A.B. was facing several years in prison!

However, the entire case was built upon an unconstitutional entrance into and search of our client’s home – and that is something that we at Neil Rockind, P.C. cannot stand by and allow to happen.

Now, because of the hard work of Attorneys Neil Rockind and Colin Daniels, the evidence will be suppressed and the case against A.B. will be dismissed. This is an extremely rare result – especially in Oakland County. However, it is the RIGHT result. And we are glad to be the firm that could accomplish such a fantastic and just result for our client.

Click below to read the documents from the case:

Evidentiary Hearing Transcript 06.14.11

Defendant’s Supplemental Brief 06.23.11

Prosecutions Response Brief 06.28.11

Opinion and Order 08.15.11

Oakland County Judge Small challenged on drunken-driving jail sentences [About Time]

A Bloomfield Hills attorney and a Wayne State University law professor are challenging 48th District Judge Kimberly Small’s policy of sending first-time drunken drivers to jail, saying she is violating the defendants’ constitutional rights and should be barred from hearing such cases.

In a motion filed Wednesday in 48th District Court in Bloomfield Township, attorney Robert Larin and professor Kenneth Mogill argued that Small violates the constitutional rights of defendants by sentencing almost all first-time drunken drivers to jail, often for weeks.

Small, the motion says, is legislating from the bench and is creating mandatory jail time when Michigan law does not require it. Larin and Mogill argue that she should disqualify herself from hearing the cases because she has made public statements showing what they say is a deep bias on drunken-driving cases.

The motion is filed on behalf of one of Larin’s clients, Thomas Cygan, a 67-year-old West Bloomfield man who was recently arrested for the first time on charges of operating while intoxicated. The case is assigned to Small.

Small, through her office staff, declined to comment, saying it would be inappropriate to talk about a pending case. But she said in a recent interview with the Free Press that she believes sentencing drunken drivers to jail sends a message to the community that it is a serious crime that should not to be tolerated.

Experts said the motion creates an interesting legal question.

“There are arguments on both sides,” said University of Michigan law professor Eve Brensike Primus. “If a judge is willing to impose a sentence within the statutory limits, then perhaps that is within the judge’s province, but if they are compromising fundamental fairness and individual sentencing, that can become problematic.”

Larin said he filed the motion “on behalf of anybody charged with a first offense at present, in the past, or in the future.”

“I have nothing against Judge Small, but it is time this matter is resolved in the courts,” he said.

Small’s sentencing practices received national attention in recent weeks. On July 27, she sentenced former NBA basketball player Jalen Rose to 20 days in the Oakland County Jail following his arrest in March. He is expected to be released Aug. 18.

A Free Press review last month of drunken-driving sentences in metro Detroit and nationwide found Small exceeds most judges when sentencing first-time offenders.

“We have to decide if we’re going to get serious about this or not,” she told the Free Press for the article.

Under Michigan law, first-time drunken driving is a maximum 93-day misdemeanor, but there is no minimum mandatory jail time.

The motion filed by Larin and Mogill first will be heard by Small. If she denies it, they will argue it before Marc Barron, chief judge of the district court. If he also denies it, the case goes to circuit court and can be appealed to the court of appeals and then to the state Supreme Court.

Defense attorney Steve Fishman, who has handled a variety of high-profile cases in metro Detroit, said he supports the motion. “The purpose of sentencing is not to send a message to anybody, it’s to judge the facts and circumstances of each individual and impose a sentence that is proportional and appropriate,” he said.

Others support Small’s tough stance on drunken driving.

“Those charged with this offense are a serious threat to the public,” Paul Walton, Oakland County’s chief assistant prosecutor, told the Free Press.

via Freep

Schuette continues push to clarify medical marijuana law [Uphill Battle]

Michigan Attorney General Bill Schuette said Wednesday that he hopes a package of bills expected to be considered by lawmakers this fall will close loopholes in the state’s medical marijuana law.

“The Michigan Medical Marihuana Act was designed, packaged and sold to help those who had a terminal illness, or to help manage pain at the end of life, or to assist those who have a chronic disease,” Schuette said. “Tragically, and sadly, this (law) has been abused and exploited and hijacked by those who have different motives. It’s been abused by the profiteers.”

There are a number of proposals, including a prohibition on felons serving as caregivers. Schuette’s plan also calls for it to be a felony crime for a doctor to knowingly falsely certify a debilitating medical condition for patients, and for a person to submit false information to get a patient or caregiver card.

Additionally, Schuette noted inconsistencies in the medical marijuana law and the Motor Vehicle Code, and wants to clarify that driving with any amount of marijuana in your system is prohibited.

Southfield-based attorney Neil Rockind, who has defended medical marijuana users in court and is an advocate for the rights of patients and caregivers, said the bills are designed to constrain the Michigan Medical Marihuana Act. He called them unnecessary.

“One of the proposals is to prohibit felons, anyone with any felony conviction, from being a caregiver,” Rockind said. “…There are mayors who are felons. There are lawyers who are felons. There are doctors who are felons. If someone, 15 or 20 years ago, got a felony conviction for shoplifting, they would be prohibited as functioning as a caregiver for their wife.”

Law enforcement, local communities, courts and some patients have been locked in disputes about what’s legal and what isn’t since voters approved the law in 2008.

“We need to bring this law back in line with what the people voted for,” Schuette said.

The Associated Press contributed to this report.

via The Oakland Press

Come Watch Neil Rockind Discuss Medical Marijuana!

Suspect charged with murder in October slaying of Southfield store owner

A 48-year-old Southfield man was arraigned Saturday on charges of gunning down a Chaldean shopkeeper last October.

Bruce H. Butler was arrested Friday based on a police tip and was arraigned Saturday in 46th District Court in Southfield. He is charged with first-degree premeditated murder and possession of a firearm in the death of Mazin (Mike) Khmoro of Farmington Hills.

Khmoro was shot around 4 p.m. Oct. 6 as he took trash to a Dumpster behind the Cronin Liquor Store on Northwestern Highway and 12 Mile Road. Witnesses told police they heard multiple gunshots, and the killer fled in a black, four-door SUV.

Southfield Police Lt. Nick Loussia said police believe Butler was a store customer, but no motive has been released.

Khmoro’s family members expressed some relief about the arrest, but their grief is still fresh.

“My whole family is destroyed right now,” said Brenda Thweny, a younger sister. “We can’t even sleep at night.”

Khmoro, 48, left behind a wife and three children, in addition to his parents, brother and sisters. Thweny said the family has no idea why the former customer might have shot her brother.

Martin Manna, executive director of the Chaldean Chamber of Commerce, said the chamber put up $10,000 from the Waad Murad Advocacy Fund as part of a reward for information leading to an arrest in Khmoro’s slaying.

According to Manna, about 200 Chaldean shopkeepers have been killed in metro Detroit in the past two decades.

“Obviously, it doesn’t bring back Mr. Khmoro, but hopefully the family can sleep better,” Manna said.

Butler is being held at the Oakland County Jail. His next court date is Wednesday at 8:30 a.m.

via Freep