MARIJUANA LAW GATEWAY TO CONTROVERSY

Kalkaska County Inhales Statewide Conundrum

KALKASKA - The people voted, marijuana became a legal substance, and
everyone in Michigan was to live happily ever after.

This fairytale hasn't been all rainbows and dancing bears, however,
and as lawsuits continue to crop up across the state the future of
medical marijuana seems hazy at best.

Kalkaska County is not without its share of confusion, and at times
frustration, over the Medical Marihuana Act of 2008. The county
hasn't gone without its day in court, either.

And when the gavel dropped here in July of 2010 in regard to medical
cannabis, statewide attention fell on Chief Judge Janet Allen of the
46th Circuit Court and Kalkaska County Prosecutor Brian Donnelly.

The defendant was Archie Kiel, a man accused of growing 31 more pot
plants than the law allowed at his home in Rapid City. Kiel served 42
days of a five-month sentence and recently filed an appeal, which
could result in a new trial and shift eyes back to the county courthouse.

It could also help clarify a law many view as vague and contradictory.

"The law has some areas that need to be redefined, or defined for the
first time," said Carl Christoph, the appellate attorney assigned to Kiel.

Christoph's client - a former marijuana caregiver whose house was
raided by the Traverse City Narcotics Team in August of 2009 - is
hoping last year's conviction will be overturned, which would restore
his right under the law to grow pot for up to five card-carrying
patients and himself. Kiel is scheduled to appear before Judge Allen
on May 27 at 9:30 a.m.

The judge will then rejoin colleagues across the state in trying to
formulate issues with little help from past cases.

"We don't have much guidance from appellate courts," Judge Allen said
concerning decisions on the marijuana law. "There are not many
published cases that would help trial courts."

While the primary topic in Kiel's case is of the caregiving variety,
there are other issues that have sprouted due to the marijuana law.
One in particular has attracted Donnelly's attention due to its
widespread implications.

Don't Kill the Messenger

Embattled these days by marijuana proponents who believe he harbors
animosity toward the plant, Donnelly maintains the air of a messenger
- - as in the bearer of bad news.

He sat recently behind his desk - a landscape strewn with police
reports - and tried to throw light on the current climate.

Michigan's medical marijuana law, he said, is poorly written and has
thus proven to be a breeding ground for debate. On top of that,
Donnelly believes most of his critics have not actually read the law.

"One of the clear failures in establishing this law is that it
created a conflict with another law, and it's not been resolved yet,"
the prosecutor said. "And people who are expressing opinions about it
- - the ones that I have dealt with - have not ever read it themselves."

The law at odds with Michigan's marijuana act is one which prohibits
any trace of the drug in those operating a motor vehicle, Donnelly
said. This means some patients, particularly those with lower
metabolisms, could potentially not be legal to drive for several days
after lighting up.

"I believe there is a law in Michigan that says if you have any
presence of marijuana in your system it is unlawful for you to drive.
And I believe that means exactly what it says," Donnelly said. "So if
you have a medical marijuana card and you smoke marijuana every day,
I would think you would always have some presence of it in your system.

"If somebody is going to use marijuana every day as some type of
medical treatment, they're probably not ever going to be legal to
drive their car. I'm not saying they can't use medical marijuana, I'm
saying you might have to make a choice."

Bill and Brandi Ness, of Onaway, choose both.

Reefer Reputation

The couple, who often travel to Traverse City for doctor
appointments, also choose to avoid driving through Kalkaska County on
their way. Local authorities here, they said, have developed a
reputation among medical marijuana users.

"Every time we come to Traverse City we drive 50 miles out of our
way," said Bill Ness, a marijuana card carrier who also functions as
his wife's primary caregiver.

Both use the drug to combat chronic pain - Bill is nearly blind and
suffers from migraine headaches and Brandi injured her shoulder
several years ago.

Last winter while driving through Kalkaska, they were pulled over by
a state trooper - with county deputies providing backup - for a
broken tail light. Brandi Ness, the driver, had left an old joint on
the dashboard and soon found herself undergoing field sobriety tests.
She had taken two puffs on the joint more than 12 hours before
driving, she said.

The trooper believed Brandi Ness to be under the influence and took
her to Kalkaska Memorial Hospital for blood tests and then on to the
county jail, where she spent the night. The blood tests, she said,
came back clean.

Bill Ness, who was dropped at a local hotel that night, said he and
his wife were treated wrongfully by "somebody who is supposed to
protect and serve."

Regardless of reputation, Donnelly said he and other local
authorities do not target marijuana users.

"It is incorrect to say that the police are going out of their way to
arrest people because they have some connection with medical
marijuana. Most of the outspoken people that I have heard, and read
their views in the paper, are poorly informed," he said.

"I am routinely accused by people of not knowing the law and not
following the law. My job is to read, understand and enforce the law.
I've been doing this for 25 years."

Mike Volz, a Fife Lake resident familiar with Kiel's court battle and
a marijuana user himself, doesn't buy the prosecutor's defense.

"Donnelly has a blatant and biased disregard for the Michigan
marijuana law," he said.

While Donnelly's approach to the law seems to have created one kind
of controversy, there are others who spawn another, seeking safety
beneath an act intended to house only medical patients.

Carpe Diem

"Some people will say, you don't have glaucoma or cancer and so
you're abusing the law. But I'm not. We voted on it. The law says if
I go to a doctor and say I have chronic pain that it's okay," one
area resident said, seeking anonymity.

A pot smoker since 2005, this man acquired the drug exclusively
through a dealer until this year when his friend qualified for a
medical marijuana card. He's recently been cleared to carry his own
card, though, and said the doctor's appointment took about three
minutes. The card should arrive within a couple months, but temporary
paperwork qualifies him in the meantime.

"It's $150 for the doctor, and $100 goes to the state. That's why I
assume everybody's able to get their cards, because the state just
takes everybody's $100 and says, 'Thank you. We're broke.'"

Does he have reservations about taking advantage of the marijuana act?

"No. It (pot) makes me feel better," he said. "It's legal, so why
not? I'm driving around with weed in my car anyway."