Part A: Michigan Medical Marihuana Act

8.2Immunity and Defenses Under the Michigan Medical Marihuana Act (MMMA) 

The purpose of the voter-approved Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., which became effective December 4, 2008,¹ “is to allow a limited class of individuals the medical use of marihuana[.]” People v Kolanek (Kolanek II), 491 Mich 382, 393 (2012).² “To meet this end, the MMMA defines the parameters of legal medical-marijuana use, promulgates a scheme for regulating registered patient use and administering the act, and provides for an affirmative defense, as well as penalties for violating the MMMA.” Id. at 394. The Kolanek Court provided more information on the scope and purpose of the MMMA:

“The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law. Rather, the MMMA’s protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals’ marijuana use ‘is carried out in accordance with the provisions of [the MMMA].’” Id., quoting MCL 333.26427(a).³

A.Preemption of Inconsistent Laws

“All other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana as provided for by [the MMMA]. However, if [the MMMA] is inconsistent with any part of chapter 10a, 10b, 10c, or 12 of the revised judicature act of 1961, . . . MCL 600.1060 to [MCL] 600.1088, [MCL] 600.1090 to [MCL] 600.1099a, [MCL] 600.1099b to [MCL] 600.1099m, and [MCL] 600.1200 to [MCL] 600.1212, that part applies.” MCL 333.26427(e). Chapters 10a, 10b, 10c, and 12 of the Revised Judicature Act address drug treatment courts, mental health courts, juvenile mental health courts, and veterans treatment courts. “[A] statute or provision of a statute that conflicts with a defendant’s right to MMMA-compliant use of marijuana is preempted or superseded by the MMMA.” People v Thue, 336 Mich App 35, 47 (2021).

The issue of preemption has been addressed in a variety of circumstances such as zoning ordinances, Michigan’s driving laws, and probation conditions. A detailed discussion of these issues is in Section 8.7.

B.Medical Use of Marijuana Must be in Accordance with the MMMA

The MMMA allows the medical use of marijuana “to the extent that it complies with [the MMMA].” MCL 333.26427(a). MCL 333.26427(b) “provides a list of places where and situations in which the MMMA prohibits a person from using or possessing marijuana.” Kolanek II, 491 Mich at 399-400.⁴ MCL 333.26427(b) states that the MMMA “does not authorize a person to do any of the following:

(1) Undertake any task under the influence of marihuana, if doing so would constitute negligence or professional malpractice.

(2) Possess marihuana, or engage in the medical use of marihuana at any of the following locations:

(A) In a school bus.

(B) On the grounds of any preschool or primary or secondary school.

(C) In any correctional facility.

(3) Smoke marihuana at any of the following locations:

(A) On any form of public transportation.

(B) In any public place.^[5]

(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana.

(5) Use marihuana if that person does not have a serious or debilitating medical condition.

(6) Separate plant resin from a marihuana plant by butane extraction in any of the following:

(A) A public place.^[6]

(B) A motor vehicle.

(C) Inside or within the curtilage of any residential structure.

(7) Separate plant resin from a marihuana plant by butane extraction in a manner that demonstrates a failure to exercise reasonable care or reckless disregard for the safety of others.”

The MMMA does not require:

•reimbursement for the medical use of marijuana;

•employers to accommodate or permit the use of marijuana while employees are working; or

•private property owners to lease residential property to any person who smokes or cultivates marijuana on the premises if the written lease prohibits smoking or cultivating marijuana. MCL 333.26427(c)(1)-(3).

“Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution is punishable by a fine of $500.00, in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use that complies with [the MMMA].” MCL 333.26427(d).

C.Protections Afforded by the MMMA

There are three sections of the MMMA that provide protection from prosecution for offenses involving marijuana: MCL 333.26424 (§ 4), MCL 333.26424a (§ 4a), and MCL 333.26428 (§ 8). Section 4 and Section 8 were part of the original voter-initiated law; Section 4a was later added by the Legislature. See 2016 PA 283, a “curative [amendatory act that] applies retroactively^[7] as to . . . clarifying the quantities and forms of marihuana for which a person is protected from arrest, precluding an interpretation of ‘weight’ as aggregate weight, and excluding an added inactive substrate component of a preparation in determining an amount of marihuana, medical marihuana, or usable marihuana that constitutes an offense.” 2016 PA 283, enacting section 2.

Section 4 “grants ‘qualifying patient[s]’ who hold ‘registry identification card[s]’ broad immunity from criminal prosecution, civil penalties, and disciplinary actions,” while § 8 “applies to ‘patients’ generally[ and] provides an affirmative defense to charges involving marijuana for its medical use[.]” Kolanek II, 491 Mich at 394-396.⁸

“‘[T]he MMMA provides two ways^[9] in which to show legal use of marijuana for medical purposes in accordance with the [MMMA]. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.

* * *

[A]dherence to § 4 provides protection that differs from that of § 8. Because of the differing levels of protection in §§ 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4.’” Kolanek II, 491 Mich at 401 n 41, quoting People v Redden, 290 Mich App 65, 81 (2010).

While the affirmative defense under § 8 applies to “[a]ny defendant, regardless of registration status,” who can establish the elements of that defense and who is not acting outside the scope of the MMMA, see MCL 333.26427(b), “[t]he stricter requirements of § 4 are intended to encourage patients to register with the state and comply with the [MMMA] in order to avoid arrest and the initiation of charges and obtain protection for other rights and privileges.” Kolanek II, 491 Mich at 403 (noting that “[i]f registered patients choose not to abide by the stricter requirements of § 4, they will not be able to claim th[e] broad immunity [provided under § 4], but will be forced to assert the affirmative defense under § 8, just like unregistered patients[; i]n that instance, registered patients will be entitled to the same lower level of protection provided to unregistered patients under § 8”).

A trial court must determine whether a defendant is “specifically entitled to the protections afforded under either [§ 4] or [§ 8]” and make “specific findings about each of the statutory requirements” before dismissing charges. People v Johnson (Barbara), 302 Mich App 450, 460-461 (2013) (“trial court abused its discretion when it dismissed the charges against all seven defendants without determining whether any of the defendants were specifically entitled to the protections afforded under either [§ 4] or [§ 8]”).

MCL 333.26424a (§ 4a) provides immunity to registered qualifying patients and registered primary caregivers for activities authorized under the Medical Marihuana Facilities Licensing Act (MMFLA), MCL 333.27101, et seq.