Michigan Nears Passage of Mixed Bag of Reforms

August 24, 2012 | Mike Liszewski
The Michigan Senate will likely approve a set of four medical cannabis laws that should bring a handful of improvements and clarity to the law, but not without imposing needless provisions that may harm safe access and the rights of patients in the state. The quartet of bills were originally passed by the Michigan House earlier this year and appear to be destined the pass the Senate without alteration. None of the bills provides a regulatory structure for medical cannabis dispensaries in the state.

While just about everyone in the MI safe access community seems to agree that these bills are far from perfect, there are varying opinions as to whether the 4 bills, when taken as a whole, are good, bad or neutral. Thankfully, citizen activists who made their way to Lansing were able to influence the bills to some degree while they were being considered in the House. Without their efforts, these bills would have been much worse, and it goes to show that even if a citizen lobbyist does not earn a 100% victory, it is still very much worth the effort. Ultimately, ASA feels that these bills are somewhere between quarter and a half step forward for safe access in Michigan, below are the reasons why.

HB 4834 - 2 Years for Valid ID Cards, but Warrentless Searches Expressly Permitted

The most controversial bill in the deals with the patient/caregiver registry system. Some of the it's less worrisome provisions would require patients to submit a photograph when applying for an ID card, and the bill would actually double the period of time that a card is valid, improving from 1 to 2 years before needing to renew. The bill also requires the the Department of Health to appoint no more than 15 members (at last 3 or whom must be non-physicians) to a board to review new qualifying condition petitions.

But when you get to Section (h) of the bill, the language becomes troubling.  The bill would expressly give police the right access the patient/caregiver registry without a warrant. This is clearly the biggest flaw in the legislation, one that threatens the right to privacy of patients, caregivers, and the rest of the state's population, as the law (by accident or design) allows officers to comb the registry merely if the officer has "probable cause to believe that a violation of the law" involving marijuana has taken place, and specifically "does not require the officer or official to obtain a search warrant to obtain access to the system." Yuck, talk about putting the gross in gross overreach!

In fact, ASA has already received several reports of persons who have been arrested because a police officer was able to snoop through the registry, and this new legislation will have very little practical protection, likely only helping if a case goes to trial...and the patient/caregiver bears the expense and embarrassment of having to face the judicial system.

While  HB4834 fails to establish a warrant standard, it does is create the skeletal structure for future reform. Should the bill go into law, A) a level of protection has already been established as necessary for the public good, and B) the legislative fix for this to strike the words "probable cause" and replace with "a search warrant," and striking the final sentence in Section (h)(3)(B)(ii). Clearly this fix will be on the agenda for future safe access legislation in Michigan.

HR 4851 - Bona Fide Doctor-Patient Relationship

Many patients are concerned that by establishing a definition for the type of relationship required between patients and their physicians, some patients with legitimate medical need will be denied access.  This seems unlikely, at least not directly, as the definition fits what most people would expect a patient-physician relationship to look like: an complete history/evaluation and an expectation of ongoing physician care of some sort if the condition is ongoing. However, the record keeping requirements, Sec. 3(a)(2) and 3(a)(4), mean that the legitimacy of a patient's physician-patient relationship could be in jeopardy through no fault of the patient, simply because the physician may keep sloppy records. This could put patients who received good-faith examinations from a doctor who appeared legitimate might face legal trouble should the patient's doctor has poor record keeping. As a result, patients may have a harder time finding a physician who has a known reputation maintaining quality records. (Is that sort of thing available on Angie's List?)

HR 4853  - Level G Sentencing Classification

This is easily the most neutral of the four bills passed, as it simply places  the sentencing classification for selling medical cannabis in violation of the state card registry program as a Class G felony. Currently, sentencing for this act is punishable up to 2 years in prison. A class G felony carries an maximum of a 2-year sentence. This is basically a wash as no greater harm has been created.

HR 4856 - Medicine Storage Within a Vehicle

The final of the four bills defines the legal space within a vehicle where a medical cannabis can be stored. The definition is overly strict, and applies to both moving and stationary vehicles, but it does provide patients and caregivers with a clear set of rules to where they can keep their medicine in their vehicle. The bill would require that medical cannabis be stored in an enclosed case in the truck of the car, or if the vehicle does not have a trunk, in a  enclosed case elsewhere in the car that is not readily accessible to the interior of the vehicle. Patients and caregivers who drive vehicles with trunks should have little trouble abiding by this law, as should patients who drive trucks or other vehicles that have exterior storage space, but what about drivers of hatchbacks and station wagons? And what exactly is "a case" and what is meant by not readily accessible from the interior of the vehicle? It seems as if patients in these situations will need to keep their medicine in a locked container stored in the most rear part of the vehicle's cabin. Perhaps they will need to install fencing in the backs of the interior vehicles...but even then, the medicine could still be viewed as accessible.

The vagueness and potential breadth of this legislation is troubling, but it's a good first step and one that can easily be fixed, as the intent of the law seems pretty clear - keep it in your trunk or as far away from the driver as possible.

Moving Forward

The legislation ready to be approved by the Michigan legislature is lackluster set of bills patients and caregivers, and legislative reforms in the next session will be necessary. Moving forward, citizen lobbyists should recognize that while these four bills need modification, they do provide a starting point and basic framework from which meaningful reforms can be amended and implemented.

Mike Liszewski is ASA's Policy Director.
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