The 411 on 420: An Update on the Recent Changes in Michigan’s Marijuana Laws

The Michigan Regulation and Taxation of Marihuana Act (MRTMA) legalized the use and possession of marijuana. While some are hesitant about the impact it may have, Michigan voters have spoken and marijuana is legal in Michigan, subject to regulation and government oversight by the department of licensing and regulatory affairs.

The stated intent of the MRTMA 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.” MCL 333.27952.

There are several things that the MRTMA didn’t do. The MRTMA did not reclassify which schedule of drug marijuana is. That means that marijuana is still listed as a Schedule I controlled substance. The MRTMA did not do anything to impact federal law. The MRTMA did not change the laws is it pertains to medical marijuana. The MRTMA does not authorize driving while using marijuana or being under the influence of marijuana.

Impact on Individuals

Possession

The MRTMA allows personal possession on public property that isn’t a K-12 school, a correctional facility, or federal property. The act allows an individual to have 2.5 ounces. That’s not an insignificant amount, it’s roughly the equivalent of 2 sandwich-sized bags of marijuana.

On private property, such as your own home, it is lawful to possess up to 10 ounces. Anything more than 2.5 ounces will need to be stored in a container or area equipped with locks or other functioning security devices that restrict access to the marijuana. The MRTMA also authorizes growing up to 12 plants so long as they are not easily visible to the public. The plants must also be in an enclosed area that is equipped with locks or other functioning security devices that would restrict access to the area.

Possession of not more than twice the amount of marijuana allowed can result in a civil infraction. The fines increase depending if it is a first violation or a second violation. However, on a third or subsequent violation, a person could be guilty of a misdemeanor and a fine. Possession of more than twice the allowable amount will not result in imprisonment unless the violation was habitual, willful, and for a commercial purpose or involved violence.

Owners of private property can restrict the use of marijuana on their properties. Landlords, for instance, can ban tenants from smoking marijuana on the property, but can not bar them from possessing it or consuming non-smokable products that won’t infringe on others’ rights to enjoy the property.

Use

The MRTMA allows individuals to possess marijuana, and this includes possessing it within their own bodies—internal possession. It is not unlawful to use marijuana. But just because an individual may possess 2.5 ounces in public does not mean he or she may consume the marijuana in a public place. A person consuming in a public place will be responsible for a civil infraction and may be punished by a fine of not more than $100, as well as forfeiture of the marijuana. But it also does not mean you may only use it in your own home, a municipality may designate an area for consumption so long as it is not accessible to persons under 21 years old.

Just because marijuana is legal does not mean that an employer can’t ask for a drug test. An employer can still discipline an employee for violating a workplace drug policy or fire an employee for using marijuana. An employer may also refuse to hire a person because of their use of marijuana.

Individuals also can’t be denied custody of or visitation with a minor for using or possessing marijuana, unless the person’s behavior creates an unreasonable danger to the minor. The danger must be clearly articulated and substantiated.

Transfer

Individuals can also give away or transfer up to 2.5 ounces of marijuana, so long as they are not being paid. Only 15 grams of marijuana given away may be in the form of marijuana concentrate. Both parties in the transfer must be over the age of 21. The transfer may not be advertised or promoted to the public. Individuals may not sell marijuana.

Driving

Driving with the presence of any marijuana in the blood used to be clearly against the law. But with the recent changes in the law, the boundaries of using marijuana and driving are no longer so clear. As mentioned previously, the MRTMA did not change the law as it pertains to driving under the influence of a controlled substance, including marijuana. It is also unlawful for a person to drive if his or her ability to drive is “visibly impaired” due to the consumption of a controlled substance.

The issue arises, however, because the law which makes it illegal to drive with any amount of marijuana in one’s system has not been conclusively overruled. The Michigan Medical Marihuana Act (MMMA) provided to first challenge to the law. Both the MRTMA and the MMMA legalize the use and possession, including internal possession, of marijuana. Both acts indicate that any other laws that are inconsistent do not apply to conduct that is permitted by the acts. The law that makes it unlawful to drive with any amount of marijuana would be inconsistent with the lawful conduct of internally possessing marijuana, and it is logical to conclude that it should be overruled.

Even if it was conclusive that the law is no longer valid, having marijuana in your system while driving is still a risk if you are pulled over by police. With the consumption of alcohol related to driving, there is a legal limit set at 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. Unlike alcohol, there is no legal limit in Michigan for marijuana. One could be accused of being “under the influence” of an amount and still face prosecution.

In addition to driving, the legalization of marijuana impacts traffic stops and searches of vehicles involved in traffic stops. Previously, the smell of marijuana, whether burnt or fresh, was enough for probable cause to search a vehicle. Now things are less clear. The smell of fresh marijuana is not necessarily indicative of any illegal activity. Transporting marijuana is legal. Much of the current law will need to be relitigated for some clarity on these issues.

Minors

No one under 21 can possess, consume, purchase, cultivate, or sell marijuana. No one under 21 is allowed to work or volunteer at a marijuana establishment. Just like with alcohol, there are consequences for possessing it under the age of 21. On a first violation, a person under 21 is responsible for a civil infraction and the punishment depends on his or her age. If under 18, the fine is not more than $100 or community service, forfeiture of the marijuana, and 4 hours or drug education or counseling. If 18 or over, the fine is not more than $100 and forfeiture of the marijuana.

The potential punishment increases for a second violation. If under 18, the fine is not more than $500 or community service, forfeiture of the marijuana, and 8 hours of drug education or counseling. If 18 or older, a fine of not more than $500 and forfeiture of the marijuana.

Municipalities

The MRTMA is a state law, but it provides an avenue to opt out for municipalities that do not want to participate in the marijuana establishment portion of the laws. Municipalities can’t outlaw use or possession entirely, but they can regulate if and how authorized businesses can sell or allow use of marijuana within the municipality.

A municipality may limit or even completely prohibit the number of marijuana establishments within its boundaries, and many of them have. A municipality may also adopt ordinances that are not unreasonably impracticable and do not conflict with the MRTMA. For instance, municipalities may establish reasonable restrictions on public signs related to marijuana establishments; regulate the time, place, and manner of operation of marijuana establishments and the productions, manufacture, sale, or display of accessories; authorize the sale of marijuana for consumption in designated areas not accessible to anyone under 21; and designate a violation of the ordinance and provide for a penalty, so long as the penalty is a civil infraction and the fine is no more than $500.

The MRTMA is still new, and there are lots of ways that it will be interpreted as it begins to be litigated. The act provides that courts should broadly construe its provisions, and that if any section is found to be invalid as to any person or circumstance, it will not affect the application of any other section of the act. As the law progresses and evolves, the attorneys at Blanchard Law will continue to stay informed. If you are facing charges involving marijuana, call the drug crime lawyer Grand Rapids, MI trusts to defend them today to discuss your case.