Articles Posted in Marijuana Laws

Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

A Marijuana Microbusiness in Michigan is like a Microbrewery in the alcohol industry.  A Marijuana Microbusiness is an excellent opportunity to allow an entrepreneur to launch an integrated marijuana business where, as a licensee, you can grow, process, and sell your products to adults 21 years of age or older without depending on other suppliers.

This type of marijuana license opens opportunities to the individuals with a small business mindset to develop a unique product only available from a single microbusiness location.  An entrepreneur in this business segment could carve out a niche market and create a demand for a product that consumers are willing to drive the extra hour to obtain.  Marijuana Microbusiness is the perfect opportunity to differentiate your product from the products offered by the masses.

Do Michigan’s marijuana laws provide for a marijuana microbusiness?

Cyber-attacks in general are on the rise.  In 2020 we witnessed security breaches at Solarwinds, Twitter, and Marriott and many other businesses. But hackers are no longer just focusing on the big giants.  Today’s headlines include prominent law firms who are falling victim to cyber-attacks.  Recently, we saw Jones Day law firm on the defense of a cyber-attack.  Jones Day, who has many prominent clients including former President Donald Trump, had files stolen and posted on the dark web.  But Jones Day is not alone, many law firms lack strong cybersecurity programs, thus making them prime targets to cyber-attacks.

Today, bad actors continue to scope out new targets.  Law firms are an attractive target because of the sensitive data that they retain.  Many law firms have access to highly confidential corporate data in addition to sensitive individual personal data.   Law firms house highly sensitive information like financial data, corporate strategies, trade secrets, business transaction information, and other private information.  In all these cases, law firms have both a legal and ethical obligation to protect their client’s data.  As lawmakers attempt to enact legislation to protect consumer’s data, this ever changing legislative landscape is often difficult to maintain and implement.

Relying on in-house counsel or your IT department is not enough.  To ensure your law firm is ready for a data breach, it is critical to have a cybersecurity attorney on retainer.   IT security professionals are stretched thin.  Many outsourced IT resources have multiple clients that they service.  In an environment where we find a shortage of security expertise, recruitment and retainment of IT security staff is a challenge.  They are often difficult to find and if you are lucky to have a dedicated IT security professional, rarely do they understand the law.  State, local and sometimes international laws have specific legal requirements for the protection of private and privileged information, an IT team cannot manage on their own.

The Barone Defense Firm is pleased to announce that Orosia Adams has joined the Barone Defense Firm team!  Orosia is an accomplished and skilled lawyer with comprehensive experience in providing legal guidance to businesses and the individuals who own and run them.  Ms. Adams will be assisting the Firm in expanding their cannabis law practice, as well as developing related practice areas: cybersecurity and tax compliance.

Patrick Barone, the Firm’s founding partner and CEO, is enthusiastic about Ms. Adams’ role with the Barone Defense Firm, and said:

“Since its founding, the Barone Defense Firm has primarily focused on criminal defense litigation in Michigan’s state and federal Courts. Ms. Adams allows us to better serve our clients in other areas of law, including regulatory compliance and enforcement. She possesses broad industry knowledge and a unique set of skills and experiences and having her of counsel to the Firm will allow us to better serve future and existing clients.

The Criminal Defense Attorney Association of Michigan (CDAM) has asked Michigan DUI Lawyer Patrick Barone to present a 1-hour Webinar to criminal defense lawyers seeking to learn about recent changes to Michigan law impacting how intoxicated driving cases are investigated at the roadside.

The seminar, entitled Michigan Law Update: Roadside Drug Testing – What You Need to Know, will include a detailed analysis of Michigan’s roadside saliva drug testing program. In this workshop, Mr. Barone will teach other lawyers how to address these preliminary screening tests in court, and how to avoid defense traps that may befall the unwary.

In recent years, law enforcement at all levels of government, State and National, have begun focusing on the investigation and arrest of drivers intoxicated by drugs other than alcohol. Interest in drugged driving has increased with the advent of medical and recreational marijuana, and the saliva swab roadside testing program is designed to facilitate drugged driving arrests.

Commission Recommends No Legal Limit for Marijuana in Michigan

The Impaired Driving Safety Commission (IDSC) has recently recommended that Michigan lawmakers take no action toward the creation of a legal limit for marijuana.  In summary, the Commission believes that the science does not support a one size fits all legal limit threshold for drivers who have used marijuana.

The IDSC was established in 2017 by Michigan Compiled Laws sec. 28.793.  According to subsection 2 of this law:

(2) The commission shall research and recommend a scientifically supported threshold of THC bodily content to provide evidence for per se impaired driving in this state. The commission shall exist until it submits the final report.

Slow Driving, Glazed Dilated Eyes and Odor Sufficient to Prove Marijuana Impairment

Michigan’s recreational and medical marijuana laws continue to be amended, modified and refined.  These changes have helped to clarify many aspects of these laws, but when it comes to driving, a big unanswered question remains; how do the police and prosecutor prove impairment from Marijuana?  There is no legal limit for marijuana, and many question the efficacy of field sobriety tests in reliably predicting intoxication.

At present, regarding this issue, Michigan’s recreational marijuana law, known formally as the Marihuana Cultivation and Taxation Act, indicates in sec. 4 only that Michigan law does not permit:

a) operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana; and b) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way.

Operating an Unlicensed Marihuana Facility Now a Crime in Michigan

Effective January 1, 2019, it is now a crime to operate a marihuana facility in Michigan without a license.  The new law was signed by Governor Snyder on December 28, 2019 and was part of a host of changes made to the Michigan Medical Marihuana Licensing Act (MMMLA) just prior to the Governor leaving office. The new section is found at MCL 333.27407a, and provides that, depending on the type of violation, the person who unlawfully operates a marihuana facility is guilty of either a misdemeanor or a felony punishable by up to four years in prison.

The Michigan Medical Marihuana Licensing Act creates five different kinds of marihuana licenses.  The term “marihuana facility” is defined as a location at which a licensee is licensed to operate under this act. This term therefore includes a facility where marihuana is grown, processed, tested or sold (provisioned). This term could also theoretically apply to a facility used to house trucks or otherwise used to do business as a marihuana transporter.

According to this new law, it is a now a crime for a person, including a corporation, to hold itself out as a marihuana facility if the person does not hold a license to operate that marihuana facility or if the person’s license to operate that marihuana facility is suspended, revoked, lapsed, or void, or was fraudulently obtained or transferred to the person.

Michigan Recreational Marijuana Users Advised to Avoid Firearm Possession

Now that Michigan has legalized the recreational use of marijuana, many citizens want to know how they can possess and use recreational marijuana without running afoul of the law.  It will take many years for the legislators and courts to sort this all out, and in the meanwhile, recreational users may unknowingly place themselves at risk for criminal prosecution or other adverse legal consequences.  One area that is particularly rife with such risks is the combination of marijuana and firearms.

An example of this this risk relates to the possession or use of marijuana while also being in the possession of a firearm. While this article focuses on State law there is also an interplay between Federal law and marijuana, and this interplay is the subject of a different article on this site.

As it relates to State law, Michigan gun owners should know that it is unlawful in Michigan to possess a firearm under the influence of alcohol, drugs or a combination of alcohol and drugs. There are two separate laws that apply to this scenario, one of which appears in the criminal code and one of which appears in the firearms statute. Both contain provisions applicable to the possession of a firearm under the influence of marijuana, but there are important differences as well.

Can I Have a CPL and be a Medical or Recreational Marijuana User?

No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL).  This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights.  According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

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