Judge: MARIJUANA ACT DOES NOT PROTECT DISPENSARIES

A local judge has said that Michigan's Medical Marihuana Act does not
provide protection from prosecution of medical marijuana dispensaries.

In a written opinion issued last week, Oakland Circuit Judge Colleen
O'Brien granted a motion from prosecutors to preclude defendant
Alexander Vlasenko from asserting a defense under the act and
mentioning medical marijuana during his trial.

Vlasenko is facing three counts of delivery/manufacture of marijuana.
The charges stem from an undercover investigation of a Waterford
Township business called Modern Age.

According to O'Brien's opinion, two members of Oakland County's
Narcotics Enforcement Team went to Modern Age in July 2010 with fake
medical marijuana cards that were created at the Oakland County
Sheriff's Office. They and a third undercover officer purchased
marijuana from Vlasenko.

Prosecutors in the case argued that Vlasenko's actions do not fall
under the protections of the Medical Marihuana Act, and that he had
no authority to sell marijuana to the officers even if they truly
were registered patients.

The defense said that the prosecution's argument was unjustified and
its position not supported by case law. Vlasenko contends that he is
a caregiver.

O'Brien wrote that Vlasenko is not entitled to assert an affirmative
defense under the Michigan Medical Marihuana Act because "nothing in
the MMMA provides for qualifying patients to engage in transfers or
deliveries of marijuana to other persons, qualified or not, when the
delivery is outside of a caregiver/qualified patient relationship."

O'Brien said the act prescribes a limited set of circumstances under
which people who use marijuana to treat serious medical conditions
can avoid prosecution.

Under defendant's theory, he would be protected from prosecution
under the act simply because he is a caregiver dispensing marijuana
to patients with a medical marijuana card," she wrote. "However,
there is no language under the MMMA that provides protection from
prosecution to medical marijuana dispensaries.

The plain language of the provisions of Section 8 clearly evidences
the intent of a relationship between a patient and caregiver, not the
dispensing of marijuana to the world at large."

Vlasenko's attorney, Mitchell Ribitwer, couldn't immediately be
reached for comment.

Oakland County Chief Assistant Prosecutor Paul Walton said the
Medical Marihuana Act allows a caregiver to have up to five patients.

If you're selling to the general public or anyone who has a card,
that's not lawful," Walton said. "You're limited to five people."

According to the information in O'Brien's opinion, when the two
undercover officers arrived at Modern Age, a woman named Corrina
Hamilton asked if they were members of the "club." They said no.

The officers inquired about membership and said they were medical
marijuana patients. Hamilton told them to join, that it would cost
$25 annually and $5 every time they showed up. She explained that
they could get marijuana from the caregivers who were there at
various times, according to O'Brien's opinion.

Hamilton asked for the officers' medical marijuana cards. They paid
the money and were directed to a back room, where there were couches,
a pool table and a TV. Vlasenko was in the room and sold them
marijuana, the opinion said.

Back in the front room, the officers talked with Hamilton. She told
them about having medical marijuana brownies at the facility and said
if they referred a friend, they would get a T-shirt, according to the opinion.

One of the officers called a third officer, who came to Modern Age
and also bought marijuana from Vlasenko.

Vlasenko is scheduled to go to trial Sept. 6.

Court records show that Hamilton has also been charged with three
counts of delivery/manufacture of marijuana. She has an Oct. 27 trial date.

Defense attorney Neil Rockind, who is not involved in the Vlasenko
case but advocates for the rights of medical marijuana patients and
caregivers, said the act protects caregivers who provide marijuana
for qualified patients. He said at least at first blush, O'Brien's
ruling appears to contrast an Isabella County judge's ruling in a
case involving a facility known as Compassionate Apothecary.

A caregiver is protected by the act where he or she assists a
qualifying patient with the medical use of marijuana," Rockind said.
The medical use of marijuana does include transfer, acquisition and
delivery of marijuana."

Other cases are pending against a number of people who were charged
in raids of medical marijuana dispensaries Clinical Relief in
Ferndale and Everybody's Cafe and Herbal Remedies in Waterford Township.

Michigan voters in 2008 approved a ballot proposal that included
physician-approved use of marijuana by registered patients with
debilitating medical conditions and allowed registered individuals to
grow limited amounts of marijuana for patients.

Medical marijuana has become a hot-button topic. Some say the laws
surrounding the use of the substance remain unclear.