On September 5, an appeal was filed with Michigan’s Supreme Court requesting that they overturn a July 11 Court of Appeals opinion, which held that “an edible containing THC extract from marijuana resin is not “usable marihuana” under the [Michigan Medical Marijuana Act].”
The statement of fact contained in the application for leave to appeal provided the following summary of how the case has proceeded thus far: “This a medical marijuana appeal from the Oakland County Circuit Court. Earl Cantrell Caruthers was arrested in Beverly Hills, Michigan, on January 27, 2011. At the time of his arrest, he was in possession of a total of 64 ounces of combined raw marijuana and baked goods, and he was driving with a suspended license. Mr. Carruthers was charged with Possession with Intent to Deliver Marijuana, MCL 333.7401(2)(D)(3). The trial court denied the Defendant’s medical marijuana defenses and barred the Defendant from presenting them to the jury. The Court of Appeals remanded the matter to the trial court for a Section 8 defense hearing. Mr. Carruthers has filed this appeal to this Court arguing that he has a Section 4 defense concerning his edibles. The question presented in this appeal is how should marijuana edibles or “medibles” be treated under Michigan law.”
The COA’s July 11 opinion additionally found that “the MMMA separately defines “marihuana” and “usable marihuana.” Notably, the definition of “marihuana” includes “all parts” of the cannabis plant, as well as “the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” The definition specifically excludes the “mature stalks” of the plant “except the resin extracted therefrom.” By virtue of that exception, therefore, resin extracted from mature stalks also is expressly included within the definition of “marihuana.” There is no dispute that both the raw marijuana and the brownies found in defendant’s possession constitute “marihuana” under the MMMA. By contrast, however, the definition of “usable marihuana” under the MMMA does not include “all parts” of the cannabis plant. More to the point, it specifically does not include “the resin extracted from” the cannabis plant. Nor does it include “the resin extracted” from mature stalks of the plant. Further, it does not include “every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” Rather, and in stark contrast to the MMMA’s definition of “marihuana,” it includes only “the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof.” [MCL 333.26423(k) (emphasis added).] The word “thereof” as used in this definition refers back to the immediately preceding
phrase “the dried leaves and flowers of the marihuana plant.” Therefore, to constitute “usable marihuana” under the MMMA, any “mixture or preparation” must be of “the dried leaves or flowers” of the marijuana plant.”
Mr. Carruthers’ appeal to the Supreme Court argues that the “drafter’s of Michigan’s Medical Marihuana Act anticipated the use of Medical Marijuana edibles (“Medibles”). Otherwise qualifying Medical Marijuana users do not forfeit their Section 4 immunity by consuming or possessing edible marijuana. The Court of Appeals erred in limiting medible users to Section 8 defenses.”
The Court of Appeals went on to describe the difference between the MMMA’s legal protections as follows: “Section 4 of the MMMA, MCL 333.26424, grants broad immunity from criminal prosecution and other penalties to qualified patients and caregivers who hold registry identification cards and who possess “an amount of marihuana that does not exceed 2.5 ounces of usable marihuana,” or, as to a primary caregiver, “2.5 ounces of usable marihuana for each qualifying patient to whom he is connected through the department’s registration process.” MCL 333.26424(a), (b)(1). Section 8 of the Act, MCL 333.26428, provides an affirmative defense to patients generally for “possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious and debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.” MCL 333.26428(a)(2). Section 8’s affirmative defense is thus available regardless of the amount of marijuana possessed. A defendant may assert a section 8 defense by filing a motion to dismiss the criminal charges, in which case an evidentiary hearing shall be held before trial.”
Mr. Carruthers’ appeal further argued that the Supreme Court “should grant leave to decide when a medical marijuana user or caregiver can assert a Section 4 defense to prosecution. Medical marijuana users frequently compound their medicine into medical marijuana edibles or “medibles.” Many patients are cancer survivors or others where smoking marijuana is not an option. The harshness of the smoking could simply prove too much of an irritant. Secondly, under Section 7 of the Michigan Medical Marihuana Act (“MMMA”), there are many places where a patient simply cannot smoke marijuana but is permitted to consume medibles. Children who need to take marijuana to prevent seizures cannot be expected to smoke their medicine.”
The Oakland County Prosecutor’s office was represented in the COA by Danielle Walton of their appellate division. They are entitled to file an opposing brief and object to Mr. Carruthers’ appeal application before the day the application is noticed for hearing in the Supreme Court.
Mr. Carruthers’ is represented in his appeal by Southfield attorneys Stuart G. Friedman, Michael Komoron and Neil S. Rockind.
It is unknown at this time how long the Supreme Court will take to decide whether to grant or deny Mr. Carruthers’ application for leave to appeal.