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An Overview of Currently Allowable Conduct Under The 2018 Michigan Marihuana Legalization Initiative

An overview of currently allowable conduct under the 2018 michigan marihuana legalization initiative

On November 6th, 2018, Michigan voters approved Proposal 1 to legalize marihuana for recreational use. The law took effect and was codified into Michigan’s Complied Laws on December 6th, 2018. This law’s intent is to treat marihuana like alcohol where it is not outright illegal to use or possess but rather is regulated and taxed. However, the provisions regarding facilities that may sell recreational marihuana for purchase are not active since the State of Michigan has one year from enactment to promulgate rules and regulations before licenses are distributed. For the purposes of this text, “marijuana” will be spelled as “marihuana” because that is the spelling found throughout Michigan’s Complied Laws.  Here is an overview of the currently active provisions of the new statute:

PURPOSE OF THE 2018 MICHIGAN MARIJUANA LEGALIZATION INITIATIVE (MCL 333.27952) – “The purpose of this act is to make marihuana legal under state and local law for adults 21 years of age or older, to make industrial hemp legal under state and local law, and to control the commercial production and distribution of marihuana under a system that licenses, regulates, and taxes the businesses involved. The intent is to prevent arrest and penalty for personal possession and cultivation of marihuana by adults 21 years of age or older; remove the commercial production and distribution of marihuana from the illicit market; prevent revenue generated from commerce in marihuana from going to criminal enterprises or gangs; prevent the distribution of marihuana to persons under 21 years of age; prevent the diversion of marihuana to illicit markets; ensure the safety of marihuana and marihuana-infused products; and ensure security of marihuana establishments. To the fullest extent possible, this act shall be interpreted in accordance with the purpose and intent set forth in this section.”

WHAT THE ACT STILL PROHIBITS

  • “(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” (NOTE: This is still punishable as operating while intoxicated under MCL 257.625);
  • “(b) transfer of marihuana or marihuana accessories to a person under the age of 21”;
  • “(c) any person under the age of 21 to possess, consume, purchase or otherwise obtain, cultivate, process, transport, or sell marihuana” (NOTE: While tobacco can legally be consumed at age 18, marihuana shares the same age limit as alcohol at age 21);
  • “(d) separation of plant resin by butane extraction or another method that utilizes a substance with a flashpoint below 100 degrees Fahrenheit in any public place, motor vehicle, or within the curtilage of any residential structure”;
  • “(e) consuming marihuana in a public place or smoking marihuana where prohibited by the person who owns, occupies, or manages the property, except for purposes of this subdivision a public place does not include an area designated for consumption within a municipality that has authorized consumption in designated areas that are not accessible to persons under 21 years of age”;
  • “(f) cultivating marihuana plants if the plants are visible from a public place without the use of binoculars, aircraft, or other optical aids or outside of an enclosed area equipped with locks or other functioning security devices that restrict access to the area”;
  • “(g) 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”;
  • “(h) possessing marihuana accessories or possessing or consuming marihuana on the grounds of a public or private school where children attend classes in preschool programs, kindergarten programs, or grades 1 through 12, in a school bus, or on the grounds of any correctional facility; or”
  • “(i) Possessing more than 2.5 ounces of marihuana within a person’s place of residence unless the excess marihuana is stored in a container or area equipped with locks or other functioning security devices that restrict access to the contents of the container or area.”
  • MCL 333.27954(2) – “This act does not limit any privileges, rights, immunities, or defenses of a person as provided in the Michigan Medical Marihuana Act….”
  • MCL 333.27954(3) – “This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana.”
  • MCL 333.27954(4) – “This act allows a person to prohibit or otherwise regulate the consumption, cultivation, distribution, processing, sale, or display of marihuana and marihuana accessories on property the person owns, occupies, or manages, except that a lease agreement may not prohibit a tenant from lawfully possessing and consuming marihuana by means other than smoking.”
  • MCL 333.27954(1) – “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”

PERMITTED POSSESSION AND USE OF MARIJUANA

  • MCL 333.27955(1) – “[Except as expressly forbidden in MCL 333.27954], the following acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege:”
  • “(a) except as permitted by subdivision (b), possessing, using or consuming, internally possessing, purchasing, transporting, or processing 2.5 ounces or less of marihuana, except that not more than 15 grams of marihuana may be in the form of marihuana concentrate;”
  • “(b) within the person’s residence, possessing, storing, and processing not more than 10 ounces of marihuana and any marihuana produced by marihuana plants cultivated on the premises and cultivating not more than 12 marihuana plants for personal use, provided that no more than 12 marihuana plants are possessed, cultivated, or processed on the premises at once;”
  • “(c) assisting another person who is 21 years of age or older in any of the acts described in this section; and”
  • “(d) giving away or otherwise transferring without remuneration up to 2.5 ounces of marihuana, except that not more than 15 grams of marihuana may be in the form of marihuana concentrate, to a person 21 years of age or older, as long as the transfer is not advertised or promoted to the public.”
  • MCL 333.27955(2) – “Notwithstanding any other law or provision of this act, except as otherwise provided in section 4 of this act, the use, manufacture, possession, and purchase of marihuana accessories by a person 21 years of age or older and the distribution or sale of marihuana accessories to a person 21 years of age or older is authorized, is not unlawful, is not an offense, is not grounds for seizing or forfeiting property, is not grounds for arrest, prosecution, or penalty in any manner, and is not grounds to deny any other right or privilege.”
  • MCL 333.27955(3) – “A person shall not be denied custody of or visitation with a minor for conduct that is permitted by this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” (NOTE: The purpose of this provision is to prevent family court judges from considering marihuana use in custody or parenting time decisions, UNLESS it can clearly be shown that the parent’s intoxication by marihuana has created a dangerous situation for the child, such as operating a vehicle while consuming marihuana and children were present in the backseat).

PROHIBITED CONDUCT AND PENALTIES (MCL 333.27965) – “A person who commits any of the following acts, and is not otherwise authorized by this act to conduct such activities, may be punished only as provided in this section and is not subject to any other form of punishment or disqualification, unless the person consents to another disposition authorized by law:”

  • 1. “Except for a person who engaged in conduct described in sections 4(1)(a), 4(1)(b), 4(1)(c), 4(1)(d), 4(1)(g), or 4(1)(h), a person who possesses not more than the amount of marihuana allowed by section 5, cultivates not more than the amount of marihuana allowed by section 5, delivers without receiving any remuneration to a person who is at least 21 years of age not more than the amount of marihuana allowed by section 5, or possesses with intent to deliver not more than the amount of marihuana allowed by section 5, is responsible for a civil infraction and may be punished by a fine of not more than $100 and forfeiture of the marihuana.”
  • 2. “Except for a person who engaged in conduct described in section 4, a person who possesses not more than twice the amount of marihuana allowed by section 5, cultivates not more than twice the amount of marihuana allowed by section 5, delivers without receiving any remuneration to a person who is at least 21 years of age not more than twice the amount of marihuana allowed by section 5, or possesses with intent to deliver not more than twice the amount of marihuana allowed by section 5:”
  • “(a) for a first violation, is responsible for a civil infraction and may be punished by a fine of not more than $500 and forfeiture of the marihuana;”
  • “(b) for a second violation, is responsible for a civil infraction and may be punished by a fine of not more than $1,000 and forfeiture of the marihuana;”
  • “(c) for a third or subsequent violation, is guilty of a misdemeanor and may be punished by a fine of not more than $2,000 and forfeiture of the marihuana.”
  • 3. “Except for a person who engaged in conduct described by section 4(1)(a), 4(1)(d), or 4(1)(g), a person under 21 years of age who possesses not more than 2.5 ounces of marihuana or who cultivates not more than 12 marihuana plants:”
  • “(a) for a first violation, is responsible for a civil infraction and may be punished as follows:”
  • “(1) if the person is less than 18 years of age, by a fine of not more than $100 or community service, forfeiture of the marihuana, and completion of 4 hours of drug education or counseling; or”
  • “(2) if the person is at least 18 years of age, by a fine of not more than $100 and forfeiture of the marihuana.”
  • “(b) for a second violation, is responsible for a civil infraction and may be punished as follows:”
  • “(1) if the person is less than 18 years of age, by a fine of not more than $500 or community service, forfeiture of the marihuana, and completion of 8 hours of drug education or counseling; or”
  • “(2) if the person is at least 18 years of age, by a fine of not more than $500 and forfeiture of the marihuana.”
  • 4. “Except for a person who engaged in conduct described in section 4, a person who possesses more than twice the amount of marihuana allowed by section 5, cultivates more than twice the amount of marihuana allowed by section 5, or delivers without receiving any remuneration to a person who is at least 21 years of age more than twice the amount of marihuana allowed by section 5, shall be responsible for a misdemeanor, but shall not be subject to imprisonment unless the violation was habitual, willful, and for a commercial purpose or the violation involved violence.” (NOTE: This provision is intended to reserve a jail sentence for those individuals selling marihuana as a business without obtaining the proper licensing from the State of Michigan).

Despite the legalization of marijuana use, recreational marihuana CANNOT be sold in the State of Michigan at this time. The Licensing and Regulatory Affairs (LARA) Department has up to one year before it must begin accepting applications for those who wish to sell marihuana as a recreational substance. In the meantime, Michigan residents are restricted to the marihuana that is already in their possession or what might be obtained through the parameters of the Michigan Medical Marihuana program. It remains to be seen what types of rules and regulations will be put in place before the first recreational marihuana facilities open at the end of 2019.

The presence of marihuana establishments in local cities and townships is already controversial and some municipalities took preemptive measures. MCL 333.27956(1) permits municipalities to limit or completely prohibit marihuana recreational facilities within their boundaries. For example, the City of Monroe passed an ordinance banning marijuana facilities within the city limits on November 5th, 2018, the day before the election. It also should be noted that manufacture, delivery and use of marijuana remains illegal under U.S. law and nothing stops federal agents from executing an arrest or prosecution for any drug-related offense in the State of Michigan. If you intend to take advantage of recreational marihuana, educate yourself on the new laws and do not overlook the value of sound advice from a lawyer.

This area of the law is rapidly developing and there will be more developments as the first marihuana facilities begin operation. Additionally, bills have been introduced in the Michigan legislature that may allow persons with multiple prior marihuana convictions to have their criminal record cleared of those offenses. There may soon be additional opportunities for a fresh start where they did not exist before. If you have questions about recreational marihuana or any other aspect of controlled substance laws, do not hesitate to speak with the attorneys at Kershaw, Vititoe & Jedinak, PLC.

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