Legislative analyst and attorney Chris Lindsey discusses the Court of Appeals decision in Carruthers regarding concentrates and medibles- and how this whole scenario has been played out before
by Rick Thompson for The Compassion Chronicles
September 9, 2013
FLINT- Michigan’s medical marijuana community is still adjusting to the Court of Appeals ruling that removes primary protections for medical marijuana patients for most brownies, oils, creams and pills made from cannabis.
According to the Marijuana Policy Project’s (MPP) Chris Lindsey, those adjustments may be more permanent than temporary.
In the case of People v Carruthers, the appellate court found that commonly-used extracts and foodstuffs made from marijuana are technically classified as ‘marijuana’- not ‘usable marijuana’, a category of cannabis that enjoys protections under the Michigan Medical Marihuana Act’s (MMA) Section 4 primary defense scheme. Patients caught with the disputed compounds and foods will still have a post-arrest Affirmative Defense under Section 8 of the MMA- but that is only applicable after the patient has been charged with a crime, their medicine has been confiscated and their mugshot has been taken.
During an interview on The Planet Green Trees Internet radio show, Lindsey described the Court of Appeals decision as part of a national trend targeting states where marijuana extracts are not specifically defined as usable.
“The problem is that the definition of usable marijuana is much narrower than the definition of marijuana,” Lindsey explained, “and while that seems kinda silly to be throwing those terms around and act like they are different, it is a big deal and that’s where the appellate court spent a lot of time in it’s analysis.
“I watched Montana’s Supreme Court go through the same process and Arizona’s Agency just went through it. This is a trend that’s happening in other locations.”
According to the appellate court, Earl Carruthers mixed marijuana and butter together, strained the mixture and used the butter to create brownies. Those brownies are not ‘usable’ because the liquid butter contained extracts of the marijuana plant. If Carruthers had put the butter and marijuana and brownie mix all together at the same time, the resulting brownie would be usable because it was created with dried cannabis, not an extracted form.
“Within the ‘usable marijuana’ definition it’s flowers, it’s leaves. When you talk about ‘marijuana’ in the health code, or the criminal codes of other states, it’s the entire plant living or not, the extractions from that plant…” said Lindsey.
Where the extracts are listed in the definitions is the key to the legality issue. “The appellate court in Michigan, the Supreme Court in Montana and the Agency in Arizona look at these two definitions and they say: usable marijuana doesn’t talk about resins, I don’t see anything about extractions but I look at this definition (of marijuana)… sure as hell, there it is.”
When looking for a solution to the Carruthers conundrum Lindsey draws from his own experiences in Montana. “Where do we go from here?” he asks. “There are two approaches- there is change the law, there is litigate it and get case law back in line.”
Planet Green Trees host and attorney Michael Komorn announced that he and fellow attorneys Neil Rockind and Stuart Friedman had just that very day petitioned to the Supreme Court to appeal the Carruthers case. A link to their petition can be found here.
Lindsey related this appellate effort to an experience from Montana related to their medical marijuana law, passed in 2004. “It was the same sort of thing where we were arguing on, look at this definition here, look at this other definition over here, think of what the spirit of the intent of the voters was, and their answer on that was, we can’t take a poll of the voters back in 2004, we have to look at the law they adopted and assume that that the way it is written is the way they wanted…”
Komorn agreed that the appellate option would be difficult. “The issue may be that, those arguments to the supreme court that the voters did not intend for the only methods of ingestion to be Justices to be smoking or vaporizing- what about these kids? What about the kids whose parents are now subject to arrest because they possess a brownie? And (the Supreme Court) may say, that’s not our problem, go to the legislature,” he said.
Lindsey analyzed the appeal process’s chance of success, saying “to fix it at the Supreme Court level which is going to require some fancy footwork and going back to the intent of the voters… I am skeptical; I respect the work that you are doing but… that is a difficult row to hoe.”
The second option Lindsey outlined held greater promise for the MPP spokesman. “The other way is change the law, and that’s where it needs to be. It’s not a hard sell. Edibles are preferred by physicians. They are better in many respects for a lot of patients… To say in Michigan that the only way you can use your medicine is to smoke it or vape it is ridiculous,” he summarized.
“I just think that your best bet really is to go in and change the language of the Act and get past it.”
How did Montana’s Supreme Court decide the issue? “In 2012 we had a string of four cases come down (from the Supreme Court), and they were all of them bad,” Lindsey said. “One of them was this issue of cannabis oil. Our Supreme Court came up with the exact same issue, really on the same reasoning as the appellate court in Michigan- that the definition of usable marijuana and marijuana in the criminal code, these two things are not the same thing and we don’t see anything that talks about extracts (in the definition of usable marijuana).”
Although Lindsey’s interview went for nearly an hour there were more topics of discussion than time allowed for. The PGT staff has promised to feature Lindsey in another upcoming interview segment.