Infused Edibles not Protected by Michigan Medical Marijuana Laws, Appeals Court Rules

Edibles that do not contain actual plant material are not “useable marihuana” and are therefore not protected under Michigan’s medical marijuana law, a state appeals court has ruled.

The July 11 ruling, which effectively means patients and caregivers in Michigan have no protection from arrest for the possession of seeds, topicals and extracts of marijuana as well as edibles that do not contain physical plant material, follows an appeal filed by Earl Cantrell Carruthers.

After a traffic stop in January 2011 Carruthers was charged with possession with intent to deliver marijuana and driving with a suspended license. He was subsequently found guilty of the possession charge and sentenced to three years’ probation and 33 days in jail.

Carruthers’ appeal argued that the possession charge should be dismissed as “he had in his possession at the time of the traffic stop a medical marijuana card for himself, caregiver applications for four patients and a caregiver certificate,” the court’s opinion read.

In addition, Carruthers argued that the gross weight of the medical brownies he had in his possession should not be considered towards the 2.5 ounces of “usable marihuana” caregivers are allowed to possess per patient through the Michigan Medical Marihuana Act (MMMA), but should rather be weighed according to how much THC each brownie contained.

Prosecutors countered by stating because each brownie was made with cannabis infused butter, they are defined as a “mixture” or “preparation” within MMMA laws and, therefore, should be considered in their entire weight.

The court ruled that MMMA’s definition of “marihuana” includes only “the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof” and concluded that the brownies were not “usable marihuana.”

Although Section 4 of the state’s MMMA act entitles medical providers to claim immunity from prosecution, it only protects patients for their possession of usable material and not marijuana in any other form.

“Not extending immunity to a registered patient for possessing a hanging drying plant because it is defined ‘unusable material’ makes the [MMMA] act unworkable,” a look at the decision by the Law Offices of Michael Komorn read.  “Clearly the 63 percent of Michigan voters approved the MMMA never intended for the sick patients that they had in mind, who may receive therapeutic or palliative benefits from the use of marihuana to be subject to such hostility.”

Although the court ruled Carruthers was not protected under Section 4 under the state’s MMMA, it did determine he may be able to claim immunity under another provision of MMMA law, established after his conviction, that allows patients and caregivers to claim immunity if they can demonstrate the marijuana in their possession was “not more than was reasonably necessary.”

“I don’t believe the voters who passed the MMMA ever envisioned that a patient who possesses or uses cannabis edibles should be arrested,” Komorn wrote. “I don’t believe that the Michigan voters wanted to restrict all medical marijuana use to smoking. I believe instead that the voters expected patients to have a variety of delivery systems available other than smoking. Hopefully if and when this issue gets to the Michigan Supreme Court, a more reasonable understanding will be considered of how patients use marihuana as a way to treat their medical conditions.”