In Michigan, there are two major statutes that give residents the privilege of possessing and using a limited amount of marijuana.
- The Michigan Medical Marihuana Act of 2008 allows the medical use of marijuana and provides protection from qualifying patients and primary caregivers for criminal liability if used correctly. A qualifying patient can possess a combined total of 2.5 ounces of marijuana or usable marijuana equivalents, and up to 12 marijuana plants kept in an enclosed locked facility. A qualified caregiver can keep up to 2.5 ounces of usable marijuana and 12 marijuana plants per patient.
- The Michigan Regulation and Taxation of Marihuana Act of 2018 allows any person age 21 or over to possess up to 2.5 ounces of marijuana (or more if properly locked away in the place of residence). Likewise, a person or business can apply for a state license to become a marijuana retailer, safety compliance facility, secure transporter, processor or grower in amounts determined by state regulations.
However, we live in a country of two sovereigns. While marijuana might be usable under state law, it remains completely prohibited under federal law. Marijuana is listed as a Schedule I controlled substance of the Controlled Substances Act of 1970. 21 U.S.C. §812(c)(10). This means that marijuana is considered to have “a high potential for abuse…”, “has no currently accepted medical use in treatment in the United States”, and “[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision.” As such, it cannot even be validly prescribed under federal law.
The federal criminal statutes prohibiting marijuana are as follows:
MANUFACTURING, DISTRIBUTING OR POSSESSING WITH INTENT TO DISTRIBUTE MARIJUANA
It is unlawful for any person to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” including marijuana. 21 U.S.C. §841(a). The penalties depend on the amount of marijuana possessed:
- For violations involving “1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight”, the penalty is a felony conviction and “such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this [statute]… after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. [A]ny sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment.” 21 U.S.C. §841(b)(1)(A). In addition, the court is not permitted to place on probation or suspend the offender, nor is the person eligible for parole during the term of incarceration.
- For violations involving “100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight”, the penalty is a felony conviction and “such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. [A]ny sentence imposed under this [statute] shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment.” 21 U.S.C. §841(b)(1)(B). In addition, the court is not permitted to place on probation or suspend the offender, nor is the person eligible for parole during the term of incarceration.
- For violations involving between 50 kilograms and 100 kilograms of marijuana or 50 to 100 marijuana plants regardless of weight, “such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. [A]ny sentence imposing a term of imprisonment under this [statute] shall, in the absence of such a prior conviction, impose a term of supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence.” 21 U.S.C. §841(b)(1)(C).
- “In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight…, such person shall… be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. [A]ny sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.” 21 U.S.C. §841(b)(1)(D).
POSSESSION OF MARIJUANA
- “It shall be unlawful for any person knowingly or intentionally to possess a controlled substance”, specifically marijuana. 21 U.S.C. §844.
- This statute also covers persons who distribute a small amount of marihuana for no remuneration.” 21 U.S.C. §841(b)(4). Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both.”
- If the offender has a prior conviction involving drugs under state or federal law, “he [or she] shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500.”
- If the offender has two or more prior convictions involving drugs under state or federal law, “he [or she] shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000.
- “The imposition or execution of a minimum sentence required to be imposed under this [statute] shall not be suspended or deferred.”
- “Further, upon conviction, a person who violates this statute shall be fined the reasonable costs of the investigation and prosecution of the offense, including the costs of prosecution.”
- Any individual who knowingly possesses marijuana “in an amount that, as specified by regulation of the Attorney General, is a personal use amount shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation.” 21 U.S.C. §844a(a).
State laws legalizing marijuana are preempted by the Controlled Substances Act. In Gonzales v. Raich, 545 U.S. 1; 125 S.Ct. 2195; 162 L.Ed.2d 1 (2005), the U.S. Supreme Court ruled that, under the Commerce Clause of the U.S. Constitution, the federal government can enforce the criminal penalties for the local cultivation, possession and distribution of marijuana prohibited by the Controlled Substances Act even if the activity is permitted under state law or allowed under the state’s medical marijuana program. This means that the Michigan Medical Marihuana Act of 2008 and the Michigan Regulation and Taxation of Marihuana Act of 2018 will not stop or prevent the prosecution of marijuana crimes under federal law by the U.S. Department of Justice.
However, medical marijuana has gotten a boost of protection in recent years. Since 2014, Congress has renewed the Rohrabacher-Farr amendment in its spending laws that prevents the U.S. Department of Justice from using federal funds to prevent states from implementing their own medical marijuana laws. At least 33 states now allow medical marijuana programs under their laws. However, these spending limitations do not prevent the U.S. Attorney General from using all of its power and resources to tackle recreational marijuana use.
Michigan residents have not been immune to federal prosecution. On January 28, 2020, Danny Trevino of Lansing was sentenced to 15 years and 8 months in federal prison related to his conviction of 10 felony charges from operating a medical marijuana dispensary. He operated Hydroworld dispensaries in several Michigan cities under valid state laws, but he could not avoid the federal penalties. Despite the outcry by local residents of the unjust result, the federal government has made it clear that it has little tolerance for marijuana use anywhere in the country.
This is a cautionary tale for Michigan residents engaged in marijuana use. Until there is federal legislation that repeals the prohibition on marijuana, any users should proceed with caution and avoid drawing too much public attention to their consumption of controlled substances. This includes limiting posts on social media depicting the possession or use of these drugs. State laws will not protect you from federal investigation or prosecution.
If you or a loved one have questions about marijuana law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
