Brownies made with pot extract were not ‘usable’

Brownies made with pot extract were not ‘usable’

Marijuana

Brownies that contain extract from cannabis resin are not “usable” marijuana under the Michigan Medical Marihuana Act, the Michigan Court of Appeals has decided, addressing an issue of first impression.

Brownies made with a marijuana extract were found in the defendant’s vehicle and he was convicted by a jury of possession with intent to deliver. The trial court did not let the defendant present a medical marijuana defense, although he had a medical marijuana card and a caregiver certificate. At trial, the court used the brownies’ gross weight when calculating the amount of marijuana the defendant possessed.

The Court of Appeals vacated the verdict and remanded the case for an evidentiary hearing.

Under the plain language of the MMMA, the only “mixture” that comes within the definition of “usable” marijuana is one made of “dried leaves and flowers” of the marijuana plant, the Court of Appeals said. Here, the brownies contained an extract of marijuana resin, the panel noted, which meant they did not contain the “dried leaves or flowers” of the plant and therefore were not “usable” marijuana.

The Court of Appeals also emphasized that an affirmative defense is available under the MMMA — no matter whether the marijuana was usable and without regard for the quantity of marijuana possessed. Therefore, the defendant was entitled to an evidentiary hearing to determine whether he could assert this affirmative defense.

The case is People v. Carruthers  (MiLW No. 07-82624, 15 pages).  Judge Mark T. Boonstra wrote the opinion, joined by Judges Michael J. Kelly and Christopher M. Murray.

Smoke it, don’t eat it

Defense counsel Elton Mosley told Michigan Lawyers Weekly that the only way to not run afoul of the MMMA is to smoke medicinal marijuana and not put it in edible products.

“I have no doubt that there are individuals who clearly qualify to use this drug who do not or cannot smoke,” he said. “The brownie is just about the safest delivery system for cannabis/THC. I cannot imagine people eating it with leaves and stems.”

According to the Detroit sole practitioner, no matter what the ultimate outcome is in this case, how persons deliver medical marijuana into their system will eventually be addressed by the Michigan Supreme Court.

Meanwhile, Mosley said he is pleased the defendant gets another chance to present his case to the trial court.

“Once we know how the lower court interprets section 8 — either strictly or with realistic latitude — then we will know the future of the act in Michigan, as well as how defense attorneys should approach these types of cases.”

However, he advised that, until the legal landscape becomes clearer, medical marijuana providers should not use marijuana butter or oils with THC extract in brownies or other edibles.

Mosley also said it appears that, when a defendant asserts an affirmative defense under the MMMA, the burden of proof will be heavy.

“My understanding is that the prosecutor will want physician testimony as to the need of THC for each individual patient,” he remarked. “If the lower courts follow this unnecessary track, use of medical marijuana in our state will dwindle to almost nothing.”

Defense attorney Matthew R. Newburg, who was not involved in the Carruthers case, agreed that the ruling says a person has to smoke medical marijuana and not deliver it into the body through edible products. However, he said smoking is problematic for many patients.

“If you have a patient with lung cancer, you’re now telling them that they have to smoke,” he remarked. “But they can’t smoke because they have lung cancer. Or they may be asthmatic and can’t smoke. Or maybe that have a trach tube. This is one of those cases where the practical effect is quite detrimental on the patient.”

According to Newburg, who’s a private practitioner in Grand Ledge, this opinion “may add another layer” to section 4 defenses. He said it will now prompt the question, “What form was the THC in when it went into your body?”

As for defendants being able to assert a section 8 affirmative defense under the MMMA, Newburg noted there are hurdles there, too. He said the problem is that the doctor who issued the medical marijuana card usually needs to be subpoenaed because the fact that the person has been issued a card is rebuttable. “The doctors rarely show up to testify,” he commented. “And if they do show up, they take the Fifth.”

Rather than asserting a section 8 affirmative defense, Newburg said he advises his clients “to fit into section 4 … and stay there.”

The prosecutor in the case could not be reached for comment.

Medicinal brownies

During a traffic stop, police found marijuana and brownies containing resin extract in defendant Earl Carruthers’ vehicle. The brownies were made with a THC extract called “Cannabutter.”

The defendant was charged with possession with intent to deliver marijuana. He moved to dismiss the charge, claiming he had a valid medical marijuana card and a caregiver certificate. He also argued the gross weight of the brownies should not have counted toward the amount limit in the MMMA. Instead, he claimed that only the net weight of the active ingredient of marijuana should have been considered.

The Oakland County Circuit Court denied the motion to dismiss. It ruled the total weight of the brownies should be considered as a marijuana “mixture” under the MMMA. The trial court also concluded the defendant could not assert a medical marijuana defense under the MMMA. A jury ultimately convicted the defendant.

‘Dried leaves or flowers’

On appeal, two sections of the MMMA were at issue: sections 4 and 8.

Section 4 allows immunity from criminal prosecution to qualified patients and caregivers who have medical marijuana cards and who possess “an amount of marihuana that that does not exceed 2.5 ounces of usable marihuana,” or “2.5 ounces of usable marihuana for each qualifying patient to whom he is connected through the department’s registration process.”

Section 8 offers an affirmative defense for “possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious and debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.”

The panel noted it was addressing an issue of first impression relating to section 4 in particular: “… is it the aggregate weight of an edible that is to be considered, or, alternatively, is it only the net weight of the marijuana (or its active ingredient) contained in the edible that is to be considered?”

Looking at the term “usable” marijuana in the MMMA, the Court of Appeals said the act defines it as “the dried leaves and flowers” of the marijuana plant and “any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.”

The defendant claimed that using the gross weight of the brownies “defeat[ed] the purpose of the MMMA” because it, in essence, disallowed the medicinal use of marijuana by any method other than smoking. Meanwhile, the plaintiff asserted the total weight of the brownies was appropriately used because an edible product is a “mixture” or “preparation” under the act.

According to the Court of Appeals, the MMMA definition of usable marijuana does not include “all parts” of the cannabis plant. In fact, the definition “specifically does not include ‘the resin extracted from’ the cannabis plant,” the panel pointed out. “Nor does it include ‘the resin extracted’ from mature stalks of the plant.”

Moreover, the MMMA definition does not include “every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin,” the court stated. Instead, it only includes “the dried leaves and flowers” of the marijuana plant “and any mixture or preparation thereof.”

Therefore, to constitute usable marijuana, any “mixture or preparation” must be of “the dried leaves or flowers” of the marijuana plant, the panel concluded.

‘Clear intent’

The Court of Appeals said the drafters of the MMMA “clearly expressed” their intent “not to include resin, or a mixture or preparation of resin” in the definition of usable marijuana.

Therefore, under the plain language of the act, an edible product made with THC extracted from resin is not included in the definition of usable marijuana, the court stated.

The Court of Appeals also explained that the phrase “usable” marijuana is a “term of art” that identifies a “subset” of marijuana which can be possessed in allowable amounts for purposes of an immunity analysis under section 4.

“We are not at liberty to ignore [the MMMA’s] definition in favor of our own,” the court stated.

Immunity claims

Addressing the defendant’s immunity claims, the Court of Appeals said the defendant did not meet the requirements for section 4 immunity because he possessed edibles that were “marijuana” under the MMMA.

However, a section 8 affirmative defense is available to the defendant regardless of the amount of marijuana possessed, the court said. But an evidentiary hearing was not held and no evidence concerning section 8 was presented, the panel noted. Rather, the defendant had a trial, was not allowed to present a medical marijuana defense and was convicted.

Accordingly, the defendant should have an evidentiary hearing “to establish whether he is entitled to assert a section 8 defense,” the court concluded.

POSTED: Tuesday, July 16, 2013
BY: Traci R. Gentilozzi

If you would like to comment on this story, email Traci R. Gentilozzi at traci.gentilozzi@mi.lawyersweekly.com.

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