My client was a medical marijuana patient and caregiver for five (5) additional patients. The West Michigan Enforcement Team (WEMET) executed a search warrant on my client’s home after he had just harvested his entire crop.
They discovered nine (9) hanging plants, about 98-gallon bags of dried and processed flower buds, and several pounds of old and moldy trim, which was marked for waste. Plus, there was 3.5 pounds of butane extracted THC wax.
In all, the cops said it weighed about 238 pounds, plus the nine hanging plants. My client was charged with the 15-year class C felony of possession with intent to deliver over 45 kilograms of marijuana and manufacturing marijuana.
The Legal Analysis
My client had a valid medical marijuana patient and caregiver card. His five patients were all valid and had reasonably legitimate relationships with their recommending physicians. Each of them also consumed a significant amount of THC extract for the treatment of the qualifying medical illnesses. Most of them were for severe and chronic pain.
Section 8 of the Michigan Medical Marijuana Act (MMMA) says we can use the Act as a defense, as long as we can demonstrate that the patients had a legitimate “bona fide” relationship with their physician, that the amount of marijuana was not more than what was reasonably necessary to ensure the patients an uninterrupted supply, and that the medicine was, in fact, being used for medical purposes.
In other words, and most importantly, all we had to show is that the 250 pounds was a reasonable amount to provide those patients what they needed.
In my experience, police never properly preserve marijuana evidence, especially whole plants. They do not place the evidence in temperature controlled environments or attempt to dry out the evidence to maintain its integrity. We hired an expert, Jon Markey, from Iron Laboratories to travel to West Michigan and examine all of the evidence.
The prosecution would not agree, so we filed a motion and the judge forced them to. Jon was able to select specific samples of the evidence to be analyzed at his marijuana chemical testing laboratory. They made it difficult but finally, Jon was able to independently weigh each item of evidence, examine the manner in which it was preserved, and identify samples to have delivered back to his lab for chemical and biological analysis.
Of course, they refused to allow Jon to take the samples himself, so we had to file another motion. The judge ordered the cops to take the samples to Walled Lake.
After analysis, Jon discovered that the plants and flower material contained a high amount of mold, which means the marijuana was only good for cannabinoid extraction (which destroys the mold). Jon was also able to identify the concentration of THC, which allowed for an estimation of how much wax would have been created. In this case, it was approximately 25-30 pounds.
After fighting and winning the prosecutor’s challenges for reconsideration of our motions, we finally had our section 8 evidentiary hearing. Dr. Markey testified to his findings.
Recent Amendment to the MMMA as a Defense
Thanks to a recent amendment to the MMMA, a patient is allowed to be in possession of up to 40 ounces of solid THC extract at one time, which is 2.5 pounds (16 ounces of solid THC equals one ounce of flower). The patients testified that they would get a pound from the client every two months.
With six patients getting a pound every two months, that equals 36 pounds of wax a year. My client just executed his yearly harvest and was not going to have another until the following year. He was therefore in a reasonable amount necessary to ensure that his patients had enough for the entire year. It is that simple.
The Deal of a Lifetime
While this testimony and strategy was great for the evidentiary hearing, it only entitled us to use this defense at trial. The prosecution did not want to go to trial. For months, we had been winning every legal argument and so they finally offered a deal. If the client can complete a probationary sentence, the felony charge would be reduced to a misdemeanor possession of marijuana.
Because it was my client’s first offense, he will be eligible for 7411 which means the case is dismissed entirely and no conviction will remain. The deal was too good to pass up.
This is how you expertly fight a possession/manufacture medical marijuana case. I bet the next time I show up in this court, they will remember what happened.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”