Local Attorneys See More Changes, Challenges Ahead for Marijuana Laws

Several local attorneys who defend clients accused of various drug violations applaud the changes in the state’s medical marijuana laws. They’re just not sure the laws address all the issues. And even if they do, they still conflict with federal law, which considers marijuana a Schedule 1 substance under the Controlled Substances Act. So states such as Michigan, which allow marijuana for medical use, or those which legalized recreational use, remain in defiance of federal law.

Attorney Jesse Williams, for one, argues that locking people up for treating illnesses is senseless. He has defended cases involving drugs across the state, for everything from medical marijuana to cocaine to methamphetamine. He believes that prosecuting individuals is almost always the wrong approach.

“The majority, probably high 90 percent, are dealing with people who have substance abuse issues. Even those that law enforcement try to categorize as dealers are (just selling) back and forth to each other. There’s not a lot of scary people. The majority of people are not dangerous. (It’s) a bunch of folks with issues,” he said.

Patrick Fragel, another attorney who often finds himself in court defending people over drug matters, said the new laws signed by Gov. Rick Snyder provide some clarification, but he still sees some potential problems. He said even in cases concerning the legal use of medical marijuana, the disposition of law enforcement varies from region to region.

“There are a lot of legal battles (regarding) dispensaries. They seem to be unregulated downstate. Here they are heavily regulated,” he said.

Fragel believes that focusing on use of drugs other than marijuana would be in everyone’s best interest. “We could afford more targeting in hard drugs if we didn’t have to worry about busting kids,” he said. “From a drug lawyer’s perspective, it would help realign law enforcement priority from local (growing) to things coming in from other places.”

They are not alone in their sentiments. Gerald Chefalo said there are many aspects to the medical marijuana issue, from growing to transporting to use. And until all those areas are clarified, the issues will remain open to interpretation and provide fodder for the courts.

“It’s the type of law made for litigation, the type of thing lawyers love,” he said. He referred specifically to laws regarding improper transport of medical marijuana. “It’s a strange little law. Some places it’s not prosecuted. Here they are.”

Chefalo also said the laws regarding dispensaries are unclear. He said if you look at the ways in which different courts treat them, you’ll find great disparities as to where they are allowed and their impact on surrounding businesses.

Jim Hunt has handled a number of drug cases over the years, though he said he doesn’t consider it a large part of his practice. He applauds the fact the new law mentions edibles, THC –infused candy, cookies, etc., for people who don’t want to smoke.

“That’s clarified by the new statute,” he said.

Hunt said one of the challenges moving forward is how to treat those who have used marijuana and then get behind the wheel. “If you have any in your system, you can be convicted…”

Frederik Stig-Nielsen, an associate of Williams, said a problem with the myriad laws surrounding medical marijuana is the fact that when a person is convicted, even simply accused, of another crime, they are likely to lose their right to use medical marijuana.

“You’re not allowed to use medical marijuana while you’re on bond or on probation,” he said. “The courts prefer opiates. You’re punishing someone before being convicted of a crime.”

Another issue with the entirety of the medical marijuana issue has to do with its cultivation. The law mandates how much a grower is allowed to have on hand, but as Chefalo said, “It is a plant. Agriculture is not always consistent.” He said that means you can easily get into areas where you can make a legal argument on both sides.

What do these lawyers see ahead for marijuana?

“I anticipated it would be on the ballot for legalization of small amounts,” said Hunt. “I do think it will be on the ballot in the future.”

Chefalo said he sees change ahead, though he’s not sure about the direction – or directions – that change will go in.

“One thing about laws, they are always changing,” he said. “You learned in civics class that the legislative branch creates laws. The courts help interpret them.”

Until such time as everything is spelled out and the state and federal laws come into compliance, he warns against seeing this new law as a windfall.

“Anyone thinking they’re going to get rich (from the industry) probably has potential problems,” he said.

Fragel said he sees the licensing aspect as an important part of the new legislation.

“You have the Liquor Control Commission – I think it will parallel that. With licensing you have a regulatory scheme for quality control.”

Stig-Nielsen said an often-overlooked area of the law that concerns him has to do with how law enforcement can seize cash and assets of those accused of drug crimes. Under civil forfeiture laws, the government can appropriate cash, cars, homes and other property suspected of being involved in criminal activity.

Unlike criminal forfeiture, with civil forfeiture, the property owner doesn’t have to be charged with, let alone convicted of, a crime to permanently lose his property. “Once property is confiscated, it’s hard to get back,” he said.

That’s where he sees regulating the industry differently than Fragel.

“With the Liquor Control Commission, you don’t get shut down the first time (there’s a violation). They don’t take everything,” Stig-Nielsen said.

While their practices are focused on defending clients, that doesn’t mean these lawyers are in favor of legalizing drugs everywhere.

“I’m not an advocate,” said Chefalo. “I need to set aside any personal feelings. I’m an advocate for my client. How I feel personally is irrelevant.”

Williams said he believes it’s time to deal with drug use as a social issue rather than a legal one.

“I’m not promoting marijuana, but the cat’s out of the bag. Let’s not turn people into criminals,” he said. “That impacts society – they’re unemployable and can’t get student loans.”