Monthly Archives: May 2013

Man Obeyed Mich. Laws, But Will Serve 10 In Federal Prison For Family Pot Operation

We at Neil Rockind, P.C. feel for the plight of the Duvals. When they were initially charged and they were looking for legal representation they came to our office first. Unfortunately, they went a different route. We are the best medical marijuana defense firm in Michigan and we believe that had they retained us, the result would have been much different. Alas, hindsight is 20/20. Hopefully the family will get some relief when they begin the appellate process. – Colin

DETROIT (WWJ) – Despite obeying state law, several Michigan marijuana patients are heading to prison because they violated federal marijuana laws.

As WWJ’s Marie Osborne reports, a pro-pot group “Americans for Safe Access” is helping publicize their ordeal.

Fifty-three-year old Jerry Duval of Monroe County has two weeks of freedom until his prison term begins.

“And in my case I’m a patient, I’m a one-hundred percent legal; the marijuana was registered to my son and my daughter and I get convicted for this,” he said.

His lawyer, Thomas Levine, said his client is caught in the middle of state and federal laws that differ.

Duval said that state officials had inspected his growing operation in Monroe County in June of 2011. “They found everything was in compliance with Michigan law. We didn’t do nothing wrong, the plant count was all there, the license was posted was in a locked secure facility,” he said.

Two years ago tanks, armed police and arrived at the Duvuals growing operation as part of a federal raid two-years ago.

“They were completely in compliance because we had it in seperate, enclosed, locked facilities – each of the caregivers,” he noted.

Duval, who also has a medical marijuana card, was sentenced to 10 years in federal prison.

via CBS News

On June 11th – he’ll report to federal prison , he was found guilty of intent to distribute marijuana. He said his family’s pot growing operation followed Michigan law to the letter.

Medical pot driver’s charge dropped

TRAVERSE CITY — Local authorities dropped criminal charges against a Williamsburg man whose 2010 arrest spurred statewide changes for medical marijuana patients who drive with the drug in their system.

Grand Traverse County Prosecutor Bob Cooney on Thursday formally dismissed operating while intoxicated charges against Rodney Koon, 51, following a Michigan Supreme Court decision this month. The court’s ruling effectively dismantled a state law that dictated a “zero tolerance” approach to medical marijuana users like Koon.

“With the Supreme Court’s decision, you have to prove the person is under the influence,” Cooney said.

Michigan’s zero tolerance stance prompted former Grand Traverse County Prosecutor Alan Schneider to charged Koon in 2010 with driving under the influence. Koon was pulled over for speeding and told sheriff’s deputies he smoked marijuana about five hours beforehand.

That led to a three-year court battle that began when 13th Circuit Court Judge Philip Rodgers ruled Koon’s status as a card-carrying medical marijuana patient gave him protection under Michigan’s voter-approved, 2008 medical marijuana act.

A state appellate court panel overturned Rodgers’ decision before the case headed to the state Supreme Court, whose members ruled medical marijuana patients are protected as long as they don’t drive “under the influence.”

Cooney could have pressed ahead with the charges but would have had to prove beyond a reasonable doubt that Koon was driving under the influence.

“I have to believe there’s a reasonable likelihood a jury will convict under the new standard,” Cooney said. “This is a case where the evidence for driving under the influence was sparse, but there obviously was the presence of THC.”

Koon expressed relief when he heard charges had been dropped.

“I feel that for once the judicial system played out their role in a proper manner,” he said. “I’m happy to see it, but it does take a long, long time.”

Cooney said the Supreme Court had a “tough call” and said he respected the decision, but he voiced public safety concerns.

“I hope the decision prompts the Legislature to include some definition of ‘under the influence’ under the (Michigan Medical Marihuana Act) that will better protect the safety of the public while respecting medical marijuana patients,” he said.

via Traverse City Record Eagle

Colo. Gov. Hickenlooper Signs First Bills In History To Establish A Legal, Regulated Pot Market For Adults

On Tuesday, Colorado Gov. John Hickenlooper signed several historic measures to implement marijuana legalization in the state, establishing Colorado as the world’s first legal, regulated and taxed marijuana market for adults.

Hickenlooper, a vocal opponent of marijuana legalization who said that “Colorado is known for many great things, marijuana should not be one of them,” signed the first bills in history to establish a legal marijuana market as well as starting the development of a regulatory framework for the cultivation, distribution, and processing of industrial hemp.

“Recreational marijuana really is new territory,” Hickenlooper said at Tuesday’s signing. And although the governor has expressed opposition to marijuana legalization in the past, he called today’s pot bills “common sense,” the AP’s Kristen Wyatt reported.

Jack Finlaw, Hickenlooper’s chief legal counsel, said although they were opposed to marijuana legalization, “the will of the voters needed to be implemented.”

“We applaud Gov. Hickenlooper for the initiative he has taken to ensure the world’s first legal marijuana market for adults will entail a robust and comprehensive regulatory system” said Mason Tvert, director of communications for the Marijuana Policy Project, who served as an official proponent of Amendment 64 and co-director of the campaign in Colorado. “This marks another major milestone in the process of making the much-needed transition from a failed policy of marijuana prohibition to a more sensible system of regulation.”

Tvertd added: “Colorado is demonstrating to the rest of the nation that it is possible to adopt a marijuana policy that reflects the public’s increasing support for making marijuana legal for adults. Marijuana prohibition is on its way out in Colorado, and it is only a matter of time before many more states follow its lead.”

House Bill 1317 and Senate Bill 283, set up the regulatory framework for Colorado dictating how recreational marijuana should be grown, packaged and sold.

Colorado adults, 21 and over, will be limited to purchasing up to an ounce of marijuana for recreational use from specialty licensed retail shops that can also sell pot-related items such as pipes and accessories. Coloradans can also grow up to six plants — with only three flowering at a given time — in their home for personal use. Adults can possess up to an ounce of marijuana legally.

HB-1317 and SB-283 requires that retailers properly label all marijuana products including warning labels, serving size and information on THC potency. Only Colorado residents can own or invest in the stores, KDVR reports, and when the first stores open around Jan. 1, 2014, for the first nine months, only existing medical marijuana dispensaries will be able apply for the recreational sales license.

According to The Denver Post, the first recreational marijuana stores to open would only be able to sell the marijuana that they have grown themselves, but come October 2014, that restriction would be lifted so stand-alone growers and retailers could open up for business.

HB-1317 also bans cities from opening pot shops and bans marijuana collectives that could skirt the new marijuana regulatory laws by growing and providing pot to members tax-free and below cost.

The bill also requires stores to treat marijuana magazines like pornography by placing them behind the counter.

House Bill 1318, outlines the taxes related to the legal marijuana market, proposing a 15 percent excise tax and 10 percent sales tax. However, due to Colorado’s Taxpayers’ Bill of Rights which requires that Coloradans vote on any tax increase, state voters will still need to weigh in on the tax question in the 2014 election.

Amendment 64 states that the first $40 million raised from the 15 percent excise tax would go to to school construction. And although many voters who supported A64 did so because it could raise money for schools, lawmakers are concerned that even fans of that excise tax rate and the use of its revenue could be turned off by a total tax rate of 25 percent, not including additional state and local taxes that could lead to marijuana taxes exceeding 30 percent in some areas.

The AP’s Kristen Wyatt reported that some state lawmakers, fear that voters will reject one or both of the tax proposals leaving the state stuck with the tab for enforcing pot sales but without the budget to pay for it.

And although Coloradans are known to reject increased taxes when it comes to even popular state services — take K-12 education improvement, for example — when it comes to legal marijuana, state voters appear to be ready to buck that trend.

According to a recent survey from Public Policy Polling, 77 percent of Colorado voters support the 15 percent excise tax — which Amendment 64 calls for and which is earmarked for public school construction — as well as an additional 10 percent sales tax to cover the cost of regulating recreational marijuana sales. Only 18 percent of those surveyed were opposed to increased taxes on legal pot sales. The survey of 900 registered Colorado voters was conducted by Public Policy Polling from April 15-16.

In a statement, Amendment 64 backers said that state officials have told them that the cost to the state to enforce recreational marijuana regulations would not be greater than $30 million and said that the proposed 25 percent in taxes would still likely yield more than $60 million.

Hickenlooper has expressed support for the tax measure. “I’ll certainly promote the marijuana question,” Hickenlooper said to The Denver Post. “We need to make sure we have the resources to have a good regulatory framework to manage this.”

Senate Bill 24 proposes the development of a regulatory framework for the commercial cultivation, processing, and distribution of industrial hemp.

Recently in Springfield, Colo. hemp farmer Ryan Loflin planted the nation’s first major industrial hemp crop in almost 60 years.

House Bill 1325, a controversial measure which sets a THC-blood limit for Colorado motorists at 5 nanograms.

Under HB 1325, drivers caught with 5 nanograms of THC, the psychoactive ingredient in marijuana which produces the “high” sensation, in their blood would be considered too stoned to drive and could be ticketed similarly to a person who was considered too drunk to drive.

As in previous years when marijuana DUI bills have come up for debate, opponents say that the 5 nanogram standard is too low for frequent pot smokers, especially medical marijuana patients, who regularly have this level of THC in the bloodstream and therefore, if passed, these people would lose their driving privileges, The Denver Post reports.

But HB-1325 allows for a person who has been charged with having 5 nanograms of THC in their blood to rebut the charge that they are too impaired to drive.

“For example, if you did not exhibit poor driving, you can put that on as evidence to say, ‘Look my driving was not poor, I’m not unsafe to operate a motor vehicle,'” Rep. Mark Waller (R-Colorado Springs) said during earlier hearings of an identical bill which was killed.

via Huffington Post

Michigan driver who uses medical marijuana wins appeal

LANSING — The Michigan Supreme Court ruled Tuesday that medical marijuana users aren’t automatically breaking the law if they’re caught driving after using the drug.

UPDATED: Michigan high court’s medical marijuana ruling a ‘big shakeup’, attorney says

The court unanimously overturned an appeals court decision in the case of a Grand Traverse County man, Rodney Koon. He was stopped in 2010 for speeding — going nearly 30 mph over the limit.

Koon admitted having smoked medical marijuana earlier, and a blood test revealed the drug in his system.

It’s illegal for Michigan drivers to consume marijuana. But the state high court said medical marijuana users have some protection. The court says police must show that a driver actually was “under the influence” of marijuana for a charge to stick.

Michigan voters approved medical use of marijuana in 2008.

The medical marijuana law “shields registered patients from prosecution for the internal possession of marijuana,” the judges said.

At the same time, the law prohibits driving “while under the influence of marijuana.” But it fails to specify what level of marijuana in the body constitutes being “under the influence,” the opinion said.

The court suggested lawmakers consider setting a marijuana limit, similar to a blood alcohol level.

“It goes almost without saying that the (medical marijuana law) is an imperfect statute, the interpretation of which has repeatedly required this Court’s intervention,” the justices said. “Indeed, this case could have been easily resolved if the (law) had provided a definition of ‘under the influence.’”

via Lansing State Journal

Koon Decision – Medical Marijuana Use Overrides 258.625(8), Operating with the Presence of Marijuana

The long awaited decision in People v Koon is finally here.  Once again, the Michigan Supreme Court reverses a Judge O’Connell opinion finding that the Michigan Medical Marijuana Act overrides MCL 257.625(8), the statute prohibiting the operation of a vehicle with the presence of any controlled substance in the operator’s system.  Here is the Opinion:

Koon Opinion

Judgment of the Court of Appeals reversed, judgment of the Grand Traverse Circuit Court reinstated, and case remanded to the district court for further proceedings.

In a unanimous opinion per curiam, the Supreme Court, in lieu of granting leave to appeal and without oral argument, held:  Under the MMMA, a qualifying registered patient is not subject to arrest, prosecution, or penalty for the medical use of marijuana in accordance with the act, provided that the patient possesses an amount of usable marijuana that does not exceed 2.5 ounces. The statutory definition of “medical use” includes internal possession. Therefore, the MMMA shields registered patients from prosecution for the internal possession of marijuana, provided that the patient does not otherwise possess more than 2.5 ounces of usable marijuana. MCL 333.26427(b), however, provides a list of activities that are not protected by the MMMA, which includes driving while under the influence. Engaging in those activities removes a registered patient from the MMMA’s protection because the patient is no longer acting in accordance with the MMMA. The MMMA 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), which prohibits a person from driving with any amount of marijuana in her or system. Under the MMMA, all other acts and parts of acts inconsistent with the MMMA do not apply to the medical use of marijuana. Consequently, MCL 257.625(8) does not apply to the medical use of marijuana. The Court of Appeals incorrectly concluded that defendant could be convicted under MCL 257.625(8) without proof that he had acted in violation of the MMMA by operating a motor vehicle while under the influence of marijuana.  Judgment of the Court of Appeals reversed, judgment of the Grand Traverse Circuit Court reinstated, and case remanded to the district court for further proceedings.

Medical Marijuana Case Dismissed (Transcript Included)

Just yesterday, I argued for the dismissal of a marijuana case in which a local police officer trampled all over my client’s constitutional and medical marijuana patient’s rights.  The officer abused his power by 1) questioning the accused without Miranda, 2) subjecting him to intolerable conditions for 25 minutes while peppering him questions, 3) searching the accused’s vehicle without cause and 4) using his patient status and medical marijuana cards as a basis to search.   Unfortunately, I think many others would have missed these issues.  Why?  Because the police officers don’t put in their report, “I violated the accused’s rights.”  They don’t admit to that in their reports.  Rather, a lawyer must read the reports for what is said and what is not said.  Dare I say, that is the most important task of all.  However, that’s only the first step.  The second?  Cross examination.  Effective cross examination.  I did both here effectively.  Take a look or read.  You’ll notice how I trapped the officer with a claim that he wouldn’t violate an accused’s rights or get caught up in the moment and cross a line, i.e., get carried away, into a constitutional rights violation.  Once I had him trapped, i.e., where he had testified earlier to a lie, e.g., that he wouldn’t violate an accused’s rights, by proving that he had, I had the officer on the run.  He later conceded that he used my client’s marijuana patient cards to support a search of my client’s vehicle — a big “no-no” in the MMMA field.

PE Transcript Redacted

As I have said before, “this is what I do.” Not everyone can do this sort of stuff but I can and am proud to do it in defense of a medical marijuana client.