People v Carruthers - Def SCt Application for Leave to Appeal - 09-05-13

7/30/2019 People v Carruthers - Def SCt Application for Leave to Appeal - 09-05-13

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No. ________

State of MichiganIn the Supreme Court

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee ,

-vs-

EARL CANTRELL CARRUTHERS,

Defendant-Appellant

_______________________

ON APPEAL FROM THE OAKLAND CIRCUIT COURT Court of Appeals No. 309987

Oakland Circuit No.2011-237303-FH

_______________________

APPLICATION FOR LEAVE TO APPEAL _______________________

Stuart G. Friedman (P46039)Attorney for Defendant-Appellant3000 Town Center, Suite 1800Southfield, MI 48075(248) 228-3322Fax: (248) 327-4940e-Mail: [email protected]

Danielle Walton (P52042) Assistant Prosecutor 1200 North Telegraph Road

Pontiac MI 48341

Michael Komoron (P47940)Of Counsel3000 Town Center, Suite 1800Southfield, MI 48075(248) 357-2440Fax: (855) 456-6676e-Mail: [email protected]

Neil S. Rockind (P48618)Of Counsel28411 Northwestern Highway, #1150Southfield, MI 48034(248) 208-3800



i

Notice of Hearing

To: ClerkSupreme Court

Post Office Box 30052Lansing, MI 48909

PLEASE TAKE NOTICE that the within APPLICATION FOR LEAVE TO

APPEAL will be submitted to the Court on October 1, 2013, Unless otherwise ordered by

the Court, there will be no oral arguments.

Respectfully submitted,

/s/Stuart G. Friedman

Stuart G. Friedman (P46039)Attorney for Defendant-Appellant3000 Town Center, Suite 1800Southfield, MI 48075(248) 228-3322Fax: (248) 327-4940e-Mail: [email protected]

Dated: September 4, 2013



ii

Table of Contents

Notice of Hearing ......................................................................................................... iTable of Contents ........................................................................................................ iiStatement of Questions Involved ............................................................................... ivTable of Authorities .................................................................................................... v Jurisdiction ................................................................................................................ viiStatement of Facts ........................................................................................................ 1Argument .................................................................................................................... 9

I. The drafter’s of Michigan’s Medical MarihuanaAct anticipated the use of Medical Marijuanaedibles (“Medibles”). Otherwise qualifyingMedical Marijuana users do not forfeit their Section4 immunity by consuming or possessing ediblemarijuana. The Court of Appeals erred in limitingmedible users to Section 8 defenses. ............................................. 9

1.1 This Court May Take Judicial Notice of the Need of Patients to Consume Medibles. .................................. 9

1.2 Medibles play an important role in Michigan’s Medical Marijuana Scheme. ................................................ 11

1.3 A Medical Marijuana Patient Has a Right toSection 4 Immunity. ............................................................ 13

1.4 Rules of construction concerning voter initiated

referendums. ....................................................................... 15 Relief .......................................................................................................................... 21Proof of Service ......................................................................................................... 22



iii

Addendum:

• Court of Appeals Opinion;

• Sanjay Gupta, “Weed,” CNN Transcript, available athttp://transcripts.cnn.com/TRANSCRIPTS/hcsg.html (last visited August 30,2013)



iv

Statement of Questions Involved

1. Are otherwise qualifying Medical Marijuana users and caregivers entitled to assert a Section 4

defense for their marijuana edibles?

Defendant-Appellant answers, “Yes.” The People answered, “No.” The Court of Appeals answered, “No.”



v

Table of Authorities

Page(s)

CASES

Bickel v. City of Boulder , 885 P.2d 215, 228 n. 10 (Colo.1994) ........................................................17

Carson v Oxenhandler , 334 SW2d 394, 398 (Mo Ct App 1960) .................................................17

Citizens for Planning Responsibly v Cnty of San Luis Obispo, 97 Cal Rptr 3d 636,

641–42; 176 Cal App 4th 357 (2009) .....................................................................................17

Godinez v Moran,509 US 389 (1993) ....................................................................................................................11

Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938) ....................................17

Horwich v. Superior Court , 21 Cal.4th 272, 276–277, 87 Cal.Rptr.2d 222, 980 P.2d927 (1999) ................................................................................................................................17

McCleskey v. Kemp,753 F.2d 877 (11th Cir.1985) ....................................................................................................10

Muller v. Oregon,208 U.S. 412 (1908) .................................................................................................................10

Nevada Tax Comm'n v. Bernhard , 100 Nev. 348, 683 P.2d 21, 23 (1984) ........................................7

Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957). ..............................15

People v Adams, 34 Mich App 546, 561; 192 NW2d 19, 26 (1971), aff'd in part,

rev'd in part 389 Mich 222 (1973) ..........................................................................................13

People v Anderson, 293 Mich App 33, 809 NW2d 176 (2011) ......................................................5

People v Kolanek , 491 Mich 382; 817 NW2d 528 (2012) ...................................................6,12,15

People v Redden, 290 Mich App 65, 93; 799 NW2d 184 (2010) .......................................15,16,18

PLIVA, Inc v Mensing , ___ U.S. ___, 131 SCt 2567 (June 23, 2011) ..........................................................................11

United States v Dillavou,No 3:08-po-042, 2009 WL 230118 (SD Ohio Jan 30, 2009)....................................................11

United States v. Howard ,381 F3d 873 (9th Cir.2004) ......................................................................................................11



vi

United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103L.Ed.2d 290 (1989) .................................................................................................................19

United States v Torniero,570 F Supp 721 (D Conn 1983), aff'd 735 F2d 725 (1984) .......................................................11

United States v Williams ,788 F Supp 2d 847 (ND Iowa 2011).........................................................................................11

Washington ex rel Pub Disclosure Comm'n v Rains, 87 Wash 2d 626; 555 P2d1368 (1976) .............................................................................................................................17

STATUTES

MCL 333.26427

MCL 333.26427 .............................................................................................................................14

COURTR ULES

MCR 7.302.(C) ............................................................................................................................. vii

OTHER AUTHORITIES

Black's Law Dictionary 188 (6th ed. 1991) ......................................................................................10

http://www.ask.com/question/how-much-does-an-oreo-cookie-weigh (last visitedAugust 31, 2013)

Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutes and StatutoryConstruction § 51:8 .................................................................................................................17

The Scientist, “Medical Marijuana for Kids,”http://www.the-scientist.com/?articles.view/articleNo/36576/title/Medical-Marijuana-for-Kids-/ (last visited September 5, 2013)....................................................................................12



vii

Jurisdiction

This is an application for leave to appeal from the Court of Appeals. The Court of

Appeals order is dated July 11, 2013. This is a criminal case, therefore the time period for

seeking permission to appeal is fifty-six days. MCR 7.302(C).



Statement of Facts

This a medical marijuana appeal from the Oakland County Circuit Court. Earl Cantrell

Carruthers was arrested in Beverly Hills, Michigan, on January 27, 2011. At the time of his

arrest, he was possession of a total of 64 ounces of combined raw marijuana and baked goods, and

he was driving with a suspended license.

Mr. Carruthers was charged with Possession with Intent to Deliver Marijuana, MCL

333.7401(2)(D)(3). The trial court denied the Defendant’s medical marijuana defenses and

barred the Defendant from presenting them to the jury. The Court of Appeals remanded the

matter to the trial court for a Section 8 defense hearing. Mr. Carruthers has filed this appeal to

this Court arguing that he has a Section 4 defense concerning his edibles. The question

presented in this appeal is how should marijuana edibles or “medibles” be treated under

Michigan law.

On September 14, 2011, trial counsel filed a motion to dismiss and suppress. The basis

of the motion to dismiss was that Mr. Carruthers was in compliance with the Michigan Medical

Marijuana Act (MMMA), MCL 333.26421 et. al., specifically Section 4. The basis of the motion

to suppress was that the search of his vehicle was illegal as the police incorrectly believed that

they could search it as part of an inventory search. This appeal addresses the Section 4 defense

only.



2

Trial counsel argued that Mr. Carruthers was an official caregiver as defined by the

statute on the day of the arrest, and was acting “within the rules and he had the proper

authorization to be a caregiver.” (Su. Hrg. 9-14-2011, pg. 5).1

Next, trial counsel argued that the issue was whether the trial court was going to hold the

entire weight of the brownies, 54.9 ounces, as being marijuana. The Oakland County crime lab

could not determine how much marijuana was in the brownies. Given that the raw, usable

marijuana was only 9.1 ounces, and Mr. Carruthers could prove that he was a patient caregiver to

four and he was a patient also, the treatment of brownies was the crux of the matter.

The prosecution argued that the issue of net weight versus gross weight was determined

by the language of the Act. “In Section 3, paragraph (k), the Medical Marihuana Act defines

usable marihuana as, ‘the dried leaves and flowers of the marihuana plant, and any mixture or

preparation thereof’. And it’s that line that the People rest their argument.” (Su. Hrg. 9-14-

2011, pg. 8).

The trial court held:

It is an interesting question how a legal weight of one legalsubstance plus the weight of another legal substance comestogether and becomes illegal because of the mass. But I do believethat the, and do find, that the statutory language encompasses thatsituation and would disallow the exception, the very limitedexception, that has been provided by the applicable statute.

I will also note that perhaps the correct analogy is if you have…abarrel of the finest wine and you take a pint of sewage and pour it

into the finest barrel, what do you have? You have a barrel of

1 The prosecutor’s brief to the Court of Appeals repeatedly stated that the Defendant wasengaged in sales to non-linked patients. Defendant disputes this allegation. The journal articlesattached to the State’s belief do not make it clear whether the Defendant acquired the marijuanafrom those individuals or sold it to them.



3

sewage. And I think that’s unfortunately for the Defendant, that isthe circumstance and the appropriate analogy, and therefore, I willdeny the motion to dismiss.”

(Su.hrg. 9-14-2011, pg. 10). The prosecutor moved to bar Mr. Carruthers from using the defense

at trial, noting that the dismissal was pursuant to Section 4 and not Section 8. Trial counsel

argued that it was still a question of fact for the jury to determine whether Mr. Carruthers was in

compliance with the rule. The trial court held that the ruling on the weight issue “renders moot

the other questions with regard to whether or not he met the various requirements of the

exception.” (Su. Hrg. 9-14-2011, pg. 12).

The trial court permitted trial counsel to take the issue involving the MMMA to the

Michigan Court of Appeals as an interlocutory appeal. The court then scheduled a hearing to

watch the video from the police camera from the stop and to question the officers involved.

On November 23, 2011, the trial court watched the video and listened to testimony from

one of the officers. The officer, Thomas Danielson, testified that his partner told him that he

“smelled the odor of marijuana” (Su. Hrg. 11-23-11 pg. 12). Danielson then opened the back

passenger door and “I could smell an odor of marijuana”. (Su. Hrg. 11-23-11 pg. 12).

On cross-examination, the officer confirmed that he did not smell marijuana when he

pulled Mr. Carruthers from the vehicle to arrest him, nor did he smell it when he escorted the

passenger from the car for the purpose of impounding the vehicle. (Su. Hrg. 11-23-11 pg. 15).

After argument, the trial court found that the prosecution met its burden. The court

found that, despite the fact that the officers searched the vehicle based upon the mistaken belief

that they could do so as part of an inventory search, the fact that one or both had smelled



4

marijuana when Mr. Carruthers’ passenger opened her door, was sufficient to give probable

cause to search the vehicle pursuant to the automobile exception.

At trial, Beverly Hills Police Officer Thomas Danielson testified that, at approximately

10:10 p.m. on January 27, 2001, in the village of Beverly Hills, he observed a vehicle being driven

by Defendant-Appellant driving with headlights on. He stopped Mr. Carruthers and determined

that he did not have a valid driver’s license, as it had been suspended. (Tr. Tr. Pg. 114-15).

Officer Danielson placed Mr. Carruthers under arrest and called for a backup patrol car.

He decided to do an inventory search of the vehicle. When he went to the back passenger door,

he smelled “an odor of marijuana.” (Tr. Tr. Pg. 117). He also found “a blue bag that had baked

goods in it. I also located some marijuana in some plastic bags. I located a black backpack that

had 14 various sized Mason jars. Some contained suspected marijuana.” (Tr. Tr. Pg. 118). He

found other items, including heat-sealed bags with the ingredients of the brownies. On the label,

it stated the purported amount of marijuana/THC in each brownie and “medical marijuana”

(Tr. Tr. Pg. 152). He found medical marijuana literature in the back seat.

Officer Lee Davis was the second officer on the scene. He testified that “[A]s the front

seat passenger got out so that we could search the vehicle I could smell the strong odor of

marijuana coming from her.” (Tr. tr. pg. 162). He also recovered a binder with “bunches of

marijuana…all labeled with different names.” (Tr. tr. pg. 165).

Sgt. Howard Shock testified that he participated in the collection of evidence.

Rachel Topacio, a forensic chemist employed by the Oakland County Sheriff’s Office,

testified that she found no plant material in the brownies but did find THC. (Tr. tr. pg. 199). She

tested only one brownie but stated they all looked about the same.



5

Officer Michael Miles testified that he received a call on January 28, 2011, to come to the

Beverly Hills police station to exam the seized marijuana. He found 9.1 ounces of usable

marijuana and 54.9 ounces of brownies. (Tr. tr. pg. 222).

This is possession with intent to deliver. I’ve never had so muchevidence. And I’ve had cases in narcotics with much larger weight,but everything individually named with the exact grams that are init, I’ve never had that on stuff where they write out the exact gramsthat are in each product. I’ve never had it where on the lastphotograph you showed me with the prices listed right on themarijuana. Yes, this is possession with intent to deliver.

(Tr. tr. pg. 225).

The jury took less than 30 minutes to return with a verdict of guilty to possession with

intent to deliver. On March 29, 2012, Mr. Carruthers was sentenced to three years probation, 33

days in jail with credit for 33 days, fines and costs, and ordered to submit to the Michigan

Department of Licensing and Regulatory Affairs, along with his Michigan Medical Marihuana

identification card requesting to withdraw from the program.

Mr. Carruthers appealed of right using different counsel to the Court of Appeals. On

appeal, the Defendant and the Prosecution presented very different interpretations of Michigan’s

Medical Marijuana Act. The Court of Appeals rejected both interpretations and offered a third

interpretation. To fully understand the issues in this case, a detailed discussion of the Court of

Appeals litigation is therefore required.

On the Defendant’s appeal of right, the Defendant asserted two arguments. First, the

Defendant argued that the trial court improperly excluded the Defendant’s Section 8 defense

based on People v Anderson, 293 Mich App 33, 809 NW2d 176 (2011). Anderson has held that a

defendant could not assert a Section 8 defense if he or she had more plants or usable marijuana



6

than was allowed under Section 4 and in the case of a grower, did not grow the marijuana in a

secured locked facility. This Court has overruled that holding. People v Kolanek , 491 Mich 382;

817 NW2d 528 (2012). Based on this intervening decision, the Court of Appeals remanded this

matter for a Section 8 hearing which has not been held. Instead, this Defendant has applied for

leave to appeal from the second part of the Court of Appeals ruling.

In the other part of the Court of Appeals’ ruling, the Court held that a Defendant who

possessed marijuana edibles or “medibles” over 2.5 ounces could only defend the matter under

Section 8 of Michigan’s Medical Marihuana Act.2

2 The Court did not decide whether the Defendant had to be operating without a profit motive atthe time of the arrest. The Court noted that this issue remains open:

Our Supreme Court has noted that “ § 4 [of the MMMA] does notpermit defendants to operate a business that facilitates patient-to-patient sales of marijuana.” State v. McQueen, 493 Mich. 135, 158;

828 NW2d 644 (2013). However, in McQueen, our Supreme Courtdid not specifically state that the section 8 affirmative defense wasunavailable for a defendant engaged in patient-to-patient sales of marijuana, because the proceeding in that case was a publicnuisance action, not a criminal proceeding. Id. at 158–159. Therationale of McQueen may indeed compel a determination that adefendant cannot establish the “medical purpose for usingmarihuana” required by section 8(a) if that defendant possessesmarijuana for the purpose of patient-to-patient sales, especially inlight of People v. Green, ––– Mich. ––––; ––– NW 2d –––– (2013),slip op at 1, where our Supreme Court quoted McQueen with

approval in reversing this Court's affirmance of the trial court'sdismissal of charges (presumably under section 4 of the MMMA)against the defendant for delivery of marijuana. However, thequestion of whether the section 8 defense is similarly unavailablefor a defendant engaged in patient-to-patient sales is not currentlybefore this Court.

Id. n. 10.



7

The Court of Appeals stated that the issue of whether

As noted, the MMMA separately defines “marihuana” and“usable marihuana.” Notably, the definition of “marihuana”

includes “all parts” of the cannabis plant, as well as “the resinextracted from any part of the plant; and every compound,manufacture, salt, derivative, mixture, or preparation of the plantor its seeds or resin.” The definition specifically excludes the“mature stalks” of the plant “except the resin extractedtherefrom.” By virtue of that exception, therefore, resin extractedfrom mature stalks also is expressly included within the definitionof “marihuana.” There is no dispute that both the raw marijuanaand the brownies found in defendant's possession constitute“marihuana” under the MMMA.

By contrast, however, the definition of “usable marihuana” underthe MMMA does not include “all parts” of the cannabis plant.More to the point, it specifically does not include “the resinextracted from” the cannabis plant. Nor does it include “the resinextracted” from mature stalks of the plant. Further, it does notinclude “every compound, manufacture, salt, derivative, mixture,or preparation of the plant or its seeds or resin.” Rather, and instark contrast to the MMMA's definition of “marihuana,” itincludes only “the dried leaves and flowers of the marihuana plant,and any mixture or preparation thereof.” [MCL 333.26423(k)

(emphasis added).] The word “thereof” as used in this definitionrefers back to the immediately preceding phrase “the dried leavesand flowers of the marihuana plant.” Therefore, to constitute“usable marihuana” under the MMMA, any “mixture orpreparation” must be of “the dried leaves or flowers” of themarijuana plant.

On appeal, the State argued that the entire weight of the brownie be counted to determine

the amount of usable marijuana under the Act. The defense (conversely) argued that only the

usable amount of THC be counted. The Court of Appeals rejected both approaches and stated:

These principles, and our reading of the MMMA, thus convince usthat edibles made with THC extracted from marijuana resin are not



8

“usable marihuana” under the MMMA. Simply put, the evidencebefore this Court indicates that the brownies were not a “mixtureor preparation” of “dried leaves and flowers of the marihuanaplant.” MCL 333.26423(k). Therefore, the brownies were not“usable marihuana” under the MMMA, and none of the weight of

the brownies should have been counted towards the determinationof whether defendant possessed over 12.5 ounces of usablemarijuana.

The Court remanded this matter for a Section 8 hearing. The Defendant brings this

Application for Leave to Appeal requesting this Court also remand this matter for a Section 4

hearing.



9

Argument

I. The drafter’s of Michigan’s Medical Marihuana Actanticipated the use of Medical Marijuana edibles(“Medibles”). Otherwise qualifying MedicalMarijuana users do not forfeit their Section 4 immunity

by consuming or possessing edible marijuana. TheCourt of Appeals erred in limiting medible users toSection 8 defenses.

Standard of Review. As the Court of Appeals correctlynoted: This case presents issues of statutory interpretation.We review questions of statutory interpretation de novo.

People v. Kolanek , 491 Mich. 382, 393; 817 NW2d 528(2012).”

This Court should grant leave to decide when a medical marijuana user or caregiver can

assert a Section 4 defense to prosecution. Medical marijuana users frequently compound their

medicine into medical marijuana edibles or “medibles.” Many patients are cancer survivors or

others where smoking marijuana is not an option. The harshness of the smoking could simply

prove too much of an irritant. Secondly, under Section 7 of the Michigan Medical Marihuana

Act (“MMMA”), there are many places where a patient simply cannot smoke marijuana but is

permitted to consume medibles. Children who need to take marijuana to prevent seizures cannot

be expected to smoke their medicine.

1.1 This Court May Take Judicial Notice of the Need of

Pat ien ts to Co ns um e Med ib les .

The next part of this brief will discuss cite to literature which is not part of the trial court

record to demonstrate the importance of medibles. That part of the brief will rely on medical



10

journal articles and even articles on CNN to demonstrate this. This is not breaking new ground.

Courts have fequently considered such evidence.

Scientific literature has been considered by the courts since the eventual Supreme Court

Justice Louis Brandeis who first filed the famous “Brandeis brief” in Muller v. Oregon, 208 U.S.

412 (1908). That brief contained “economic and social surveys and studies that are included

along with legal principles and citations.” Black's Law Dictionary 188 (6th ed. 1991). As the

Eleventh Circuit explained:3

Historically, beginning with “Louis Brandeis' use of empiricalevidence before the Supreme Court ... persuasive social scienceevidence has been presented to the courts.” Forst, Rhodes &Wellford, Sentencing and Social Science: Research for theFormulation of Federal Guidelines, 7 Hofstra L.Rev. 355 (1979).See Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551(1908); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686,98 L.Ed. 873 (1954). The Brandeis brief presented social facts ascorroborative in the judicial decisionmaking process. O'Brien, Of Judicial Myths, Motivations and Justifications: A Postscript onSocial Science and the Law, 64 Judicature 285, 288 (1981). TheBrandeis brief “is a well-known technique for asking the court to

take judicial notice of social facts.” Sperlich, [Social ScienceEvidence and the Courts: Reaching Beyond the Advisory Process,]63 Judicature at 280, 285 n. 31. “It does not solve the problem of how to bring valid scientific materials to the attention of thecourt.... Brandeis did not argue that the data were valid, only thatthey existed.... The main contribution ... was to make extra-legaldata readily available to the court.” Id.

3 McCleskey v. Kemp, 753 F.2d 877, 888 (11th Cir.1985).



11

The United States Government filed a “Brandeis brief” supporting its bid to have a court

rethink the law of insanity.4 By analogy, courts have also cited to the Physician’s Desk Reference

to help with pharmacology questions.5

The Sanjay Gupta article attached to this brief is being attached to highlight the need of

some medical marijuana users to use it in the edible format. The United States Supreme Court

and appellate courts have taken judicial notice of other CNN or NYTimes.com articles. 6

It is appropriate for this Court to do the same.

1.2 Medibles play an important role in Michigan’s Medical Mar iju an a Sc he me.

The statutory definition of medical marijuana does not include the inert food ingredients

in which might be mixed. The Court of Appeals correctly recognized this, but effectively that all

4 United States v Torniero, 570 F Supp 721 (D Conn 1983), aff'd 735 F2d 725 (1984). See also United States v Williams , 788 F Supp 2d 847, 851 (ND Iowa 2011) (criticizing the Government fornot filing a Brandeis brief to defend a Sentencing Guideline variable).

5 See, e.g. PLIVA, Inc v Mensing , ___ U.S. ___, 131 SCt 2567 (June 23, 2011) (noting warningsabout the drug in the Physician’s Desk Reference)’; Godinez v Moran, 509 US 389 (1993)(Blackmun J. dissenting) (using the Physician’s Desk Reference to help interpret a prisoner’smedical file); United States v. Howard , 381 F3d 873, 880 & n. 7 (9th Cir.2004) (taking judicialnotice of medical facts from the Physician's Desk Reference); United States v Dillavou, No 3:08-po-042, 2009 WL 230118 (SD Ohio Jan 30, 2009) (same).

6 Fisher v Univ of Texas at Austin, 133 S Ct 2411 n.3, 2428; 186 L Ed 2d 474 (2013) (citing to CNNarticles to take note of the similarity of segregationist arguments and proponents of the

University of Texas’s diversity admission program). See also Berhane v Holder , 606 F3d 819, 828(CA 6 2010) (citing to cnn.com to take judicial notice of the repressive conditions in Iran);Carranza v United States , 267 P3d 912, 918 n. 7 (Utah 2011) (taking judicial notice of nytimes.com articles on fetal development);



12

medible cases had to be Section 8 cases because police have technical difficulties determining the

amount of usable marijuana in a medible.

The problem with this interpretation is that it means that every single case involving a

medible would always have to go to a jury. This would create a chilling effect on a patient

exercising their statutory rights. A jury verdict would not create future preclusive effect for the

patient.

Medical marijuana is highly charged. Many people feel that people are using it as an

excuse to get “high.” At the same time, there is no denying that there are bona fide patients who

are consuming marijuana for medicinal purposes. For example, in the Sanjay Gupta article

discussed earlier in this brief, a Colorado family is treating their daughter with medibles high in

CBDs and very low in THC. (This meant that she wouldn’t get high from the medication, but

this low THC marijuana is the only drug with proven medical effective in her treatment).

Because of the daughter’s age, smoking the marijuana is not an option for health and pragmatic

concerns. Similarly, another article has noted that the edible format of marijuana is the format

used by children needing such treatment.7

A family with a child who needs medical marijuana for an ill child (such as Charlotte in

the Gupta investigation) is not going to feel comfortable giving their child edible marijuana if

their decision can always be second guessed by a jury. A jury verdict is only binding on that case

and does not provide the patient with any protection against future prosecutions. The

prosecution would be free to continuously recharge the acquitted patient for engaging in the same

7The Scientist, “Medical Marijuana for Kids,”http://www.the-scientist.com/?articles.view/articleNo/36576/title/Medical-Marijuana-for-Kids-/ (last visitedSeptember 5, 2013).



13

conduct week after week. Through this process of attrition, the State is likely to wear down all

but the most resolved patients. While Appellant presumes that many prosecutors will decide not

to charge such parents, there are a minority who might. As Justice Charles Levin recognized in

his opinion in People v Otis Adams , this Court cannot presume the good faith of all prosecutors

when construing a statute.8

1.3 A Medical Marijuana Patient Has a Right to Section 4 Im mun it y.

A patient has Section 4 immunity from prosecution for possessing marijuana edibles

containing less than 2.5 ounces of usable marijuana. This does not include the inert materials

(food) which it is cooked or processed with the marijuana.9 With a marijuana brownie, the State

8 People v Adams , 34 Mich App 546, 561; 192 NW2d 19, 26 (1971), aff'd in part, rev'd in part 389Mich 222 (1973).

9 As the Court of Appeals correctly noted:

Nor are we persuaded by plaintiff's argument that “usablemarihuana” merely constitutes “marihuana” that is “usable,” andthat a brownie containing THC extracted from the resin of amarijuana plant is “usable marihuana” because it is “marihuana”that is “usable” simply by virtue of its ingestion. That argumentrequires a circularity of reasoning that would read into the drafters'definition of “usable marihuana” a component (resin) that thedrafters expressly excluded. Moreover, it ignores the fact that“usable marihuana” is not simply a combination of the words“usable” and “marihuana”; rather, it is a term of art specificallydefined by the MMMA. We are not at liberty to ignore that

definition in favor of our own. See People v. Williams, 288Mich.App 67, 74; 792 NW2d 384 (2010). The drafters' definitionof the term “usable marihuana” clearly was not intended toencompass all “marihuana” that theoretically is “usable,” in thecolloquial meaning of the term, by virtue of its ability to beingested. Rather, as a term of art, it is designed to identify a subsetof “marihuana” that may be possessed, in allowed quantities, forpurposes of an immunity analysis under section 4 of the MMMA.



14

may now include the bake mix. With a marijuana soda, the State may not include the water.10

The State also doesn’t have an automatic right to a trial by jury in every case involving a medible.

This will have a tremendously chilling effect on patients who need to take digestible marijuana on

a medicinal basis.

Section 7 (MCL 333.26427) of Michigan’s Medical Marihuana Act presupposes the use

of medibles. Paragraph 2 of the Act bars any use or possession of medical marijuana on K-12

school grounds, a school bus, or in a correctional facility.11 Conversely, Section 3 prohibits the

smoking of medical marijuana on any form of public transportation or in a public place.12 By

excluding smoking by name, the voters obviously intended to not prohibit the consumption of

medibles in such places.

The prosecution’s approach would effectively make every single patient who could not

(or chose not to) smoke their marijuana face unlimited jury trials. A 2.5 ounce medible would

10 As the Court of Appeals noted:

The phrase “usable marihuana” in the MMMA thus refers tomarijuana to which the law has granted a qualifying patient thepower, right, or privilege to use, rather than merely makingreference to marijuana that is able to be ingested, smoked, orotherwise consumed in order to produce a narcotic effect. See, e.g.,Blacks Law Dictionary, 9th ed (2009), p 1682 (“use” may mean“the power, right, or privilege of using something,” and “a

benefit” granted by operation of law); Random House CollegeDictionary, 2d ed (2000), p 1440 (“usable” may mean “available... for use”).

11MCL 333.26427(b)(2).

12 MCL 333.26427(b)(3).



15

obviously be insufficient. By way of reference, a typical Oreo Cookie weighs six ounces.13 Very

few medibles (let alone a single day’s worth of medibles) would weigh under 2.5 ounces. As the

Court of Appeals recognized in this case, a single brownie weighed 2.44 ounces.

It seems exceptionally unlikely that the voters intended to make every case involving

edibles subject to a Section 8 hearing and a jury trial. This Court should avoid a construction that

negates the purpose of Michigan’s Medical Marihuana law.14 As Justice William O. Douglas

once observed, “[C]ommon sense often makes good law.”15 As the Court of Appeals correctly

recognized, a food-based delivery mechanism does not count towards the weight.

This matter should be remanded for a Section 4 hearing in addition to the Section 8

hearing.

1.4 Rules of construction concerning voter initiated referendums.

Michigan’s Medical Marihuana Law preempts and provides a defense to criminal charges

that not only prohibit the possession and use of marijuana but also ones which impact on

substantial privileges and licenses. A person who qualifies under the MMMA may be legally

guilty of an offense but is given immunity from prosecution. 16 In the first published case

13 http://www.ask.com/question/how-much-does-an-oreo-cookie-weigh (last visited August 31,2013).

14 People v Kolanek , 491 Mich 382, 402; 817 NW2d 528, 540 (2012)

15 Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957).

16 "The MMMA does not codify a right to use marijuana; instead, it merely provides a procedurethrough which seriously ill individuals using marijuana for its palliative effects can be identifiedand protected from prosecution under state law. Although these individuals are still violating thePublic Health Code by using marijuana, the MMMA sets forth particular circumstances under



16

interpreting the MMMA, the Michigan Court of Appeals stated that unregistered patients can

appropriately assert a Section 8 defense.17 The Court reached this decision by not only

examining the statutory language but also examining the ballot language which specifically stated

that it permitted unregistered patients to assert this defense.18

The statute protecting a medical marijuana user is M.C.L.A. 333.26424(a). That statute

provides:

"Sec. 4. (a) A qualifying patient who has been issued and possessesa registry identification card shall not be subject to arrest,prosecution, or penalty in any manner, or denied any right orprivilege, including but not limited to civil penalty or disciplinaryaction by a business or occupational or professional licensing boardor bureau, for the medical use of marihuana in accordance with thisact, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana,and, if the qualifying patient has not specified that a primarycaregiver will be allowed under state law to cultivate marihuana forthe qualifying patient, 12 marihuana plants kept in an enclosed,locked facility. Any incidental amount of seeds, stalks, andunusable roots shall also be allowed under state law and shall not beincluded in this amount."

Additionally, MCL 333.26427(7)(e) provides: “all other acts and parts of acts inconsistent with

this act do not apply to the medical use of marihuana as provided for by this act.” This Court

should note that this law casts broad protection from “all other acts” or “parts of acts.”

which they will not be arrested or otherwise prosecuted for their lawbreaking." People v Redden,290 Mich App 65, 93; 799 NW2d 184 (2010) (O’Connell, J. concurring)

17 People v Redden, 290 Mich App 65; 799 NW2d 184 (2010).

18 Id.



17

Where a statute adopts by reference the provisions of another document, the law treats

those provisions as if they had been reprinted in the statute.19 The findings of the National

Academy of Science’s report must be treated as part of the MMMA and respected as such.

Voter initiated referendums are subject to the Canons of Statutory Construction,20 but the Court

should afford greater liberality to intent of the voters than may sometimes be given to an

individual act of the Legislature.

Typically the voters are attempting to override a legislative judgment.21 Their decision

may be attempting to make a “sea change” rather than a minor tweak in an established system.

As the California Court of Appeals recognized:22

" [O]ur review of this appeal is also strictly circumscribed by thelong-established rule of according extraordinarily broad deference

19 See, e.g., Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938) (“Where onestatute adopts the particular provisions of another by a specific and descriptive reference ..., theeffect is the same as though the statute or provisions adopted had been incorporated bodily into

the adopting statute.” (internal quotation marks and citation omitted)); see also Norman J.Singer & J.D. Shambie Singer, 2B Sutherland Statutes and Statutory Construction § 51:8 (“When[a] reference is made to a specific section of [a] statute, that part of the statute is applied asthough written into the reference statute.”).

20 Washington ex rel Pub Disclosure Comm'n v Rains , 87 Wash 2d 626; 555 P2d 1368 (1976); Bickel v. City of Boulder , 885 P.2d 215, 228 n. 10 (Colo.1994) (courts may interpret citizen-initiatedmeasures using the general rules of statutory construction); Nevada Tax Comm'n v. Bernhard , 100Nev. 348, 683 P.2d 21, 23 (1984) (laws approved by referendum are interpreted using generalrules of statutory construction ); Horwich v. Superior Court , 21 Cal.4th 272, 276–277, 87Cal.Rptr.2d 222, 980 P.2d 927 (general rules of statutory construction apply to initiatives).

21 Carson v Oxenhandler , 334 SW2d 394, 398 (Mo Ct App 1960) ("It is said that the adoption of the initiative and referendum as a part of the organic law in some jurisdictions came about as aresult of the growth of dissatisfaction of the people with their legislative bodies") .

22 Citizens for Planning Responsibly v Cnty of San Luis Obispo, 97 Cal Rptr 3d 636, 641–42; 176 CalApp 4th 357 (2009).



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to the electorate's power to enact laws by initiative. The stateconstitutional right of initiative or referendum is 'one of the mostprecious rights of our democratic process.' [Citation.] Thesepowers are reserved to the people, not granted to them. Thus, it isour duty to ' ' 'jealously guard' ' ' these powers and construe the

relevant constitutional provisions liberally in favor of the people'sright to exercise the powers of initiative and referendum.”

There are no “clean up sessions” on voter referendums. This is another factor which this Court

should consider when determining how to construe a referendum.

While it is undeniable that does not create a general right of individuals to use and possess

marijuana for non-medicinal purposes and that it may only be used by patients, a defense only to

individuals who are suffering from a serious or debilitating medical condition or symptoms,23 this

is not a rule of construction or a “butcher’s thumb” designed to turn what was otherwise a

remedial measure into a rule of statutory construction designed to constrict the use of medical

marijuana. 24 The net result is a syllogism which effectively strictly construes the Medical

23 The MMMA does not codify a right to use marijuana; instead, it merely provides a procedurethrough which seriously ill individuals using marijuana for its palliative effects can be identifiedand protected from prosecution under state law. Although these individuals are still violating thePublic Health Code by using marijuana, the MMMA sets forth particular circumstances underwhich they will not be arrested or otherwise prosecuted for their lawbreaking." People v Redden,290 Mich App 65, 93; 799 NW2d 184 (2010) (O’Connell, J. concurring)

24 Similarly, it is highly questionable whether Medical Marijuana is still a Schedule 1 controlledsubstance. The executive summary of report (which was adopted by reference) in the finding of facts to this legislation states:

"Much has been learned since the 1982 IOM report Marijuana andHealth. Although it was clear then that most of the effects of marijuana were due to its actions on the brain, there was littleinformation about how THC acted on brain cells (neurons), whichcells were affected by THC, or even what general areas of the brainwere most affected by THC. In addition, too little was known aboutcannabinoid physiology to offer any scientific insights into the



19

Marihuana Act against the patient while liberally construing the Controlled Substance Act to

carry out the perceived general purpose of keeping recreational marijuana users from using the

drug. Stated another way, Courts and prosecutors are interpreting the Act to resolve doubts in

favor of prosecution.

This was not the intent of the voters. A Court has duty not to “produce a result

demonstrably at odds with the intentions of [a statute's] drafters.25 The presence of Section 4

immunity from both arrest and prosecution was designed as a hedge against precisely this type of

prosecution. The Fourth Amendment to the US Constitution, the Fifth Amendment to the US

harmful or therapeutic effects of marijuana. That all changed withthe identification and characterization of cannabinoid receptors inthe 1980s and 1990s. During the past 16 years, science hasadvanced greatly and can tell us much more about the potentialmedical benefits of cannabinoids."

The report goes on to find:

Cannabinoids likely have a natural role in pain modulation, controlof movement, and memory. · The natural role of cannabinoids inimmune systems is likely multi-faceted and remains unclear. · Thebrain develops tolerance to cannabinoids. · Animal researchdemonstrates the potential for dependence, but this potential isobserved under a narrower range of conditions than withbenzodiazepines, opiates, cocaine, or nicotine. · Withdrawalsymptoms can be observed in animals but appear to be mildcompared to opiates or benzodiazepines, such as diazepam(Valium).

These findings are wholly inconsistent with a determination that a substance is "schedule 1 if itfinds that the substance has high potential for abuse and has no accepted medical use intreatment in the United States or lacks accepted safety for use in treatment under medicalsupervision” – the benchmark for when a substance is deemed a Schedule 1 narcotic.

25 United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290(1989).



20

Constitution, and the Sixth Amendment to the US Constitution all presumably have had most

police officers frustrated because it impaired the efficiency of their carrying out their jobs. By

placing the ease of prosecution over the rights of patients, the Court of Appeals erred.

The exact composition of the brownies was not developed below. Because no evidentiary

hearing was held in the Circuit Court and evidence concerning medical marijuana was excluded

at trial, the parties are forced to work from a preliminary examination transcript which was never

intended to be a substitute for this record development. Most critically, the defense did not offer

expert testimony concerning what was detectable and was not. The Court of Appeals correctly

determined that the record was inadequate for judicial review. The Defendant agrees with this

point, but believes that this matter should be remanded for both a Section 4 and Section 8

hearing.



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Relief

WHEREFORE, Defendant asks this Court to either grant leave to appeal or remand this

matter to the Oakland County Circuit Court for both a Section 4 and Section 8 hearing.


/s/Stuart G. Friedman

Stuart G. Friedman (P46039)Attorneys for Defendant-Appellant

3000 Town Center, Suite 1800Southfield, MI 48075(248) 228-3322Fax: (248) 327-4940e-Mail: [email protected]

Michael KomoronOf Counsel3000 Town Center, Suite 1800Southfield, MI 48075

(248) 357-2440Fax: (855) 456-6676e-Mail: [email protected]

Neil S. Rockind (P48618)Of Counsel28411 Northwestern Highway, #1150Southfield, MI 48034(248) 208-3800

Dated: September 5, 2013



22

Proof of Service

STATE OF MICHIGAN )

) SS.COUNTY OF OAKLAND )

The undersigned declarant being first duly sworn, deposes and says that on May 20, 2012,

(s)he did e-Serve a copy of the attached DEFENDANT- APPELLANT’S APPLICATION FOR

LEAVE TO APPEAL, to:

Danielle Walton (P52042)

Asistant Prosecutor 1200 North Telegraph Road Pontiac MI 48341

Declaration in Lieu of Notarization. I declare that the foregoing is true and correct to the

best of my information, knowledge, and belief.


/s/Stuart G. Friedman _________________________________Declarant

DATED: September 5, 2013



APPENDIX

People v Carruthers - Def SCt Application for Leave to Appeal - 09-05-13

Documents

Transcript of People v Carruthers - Def SCt Application for Leave to Appeal - 09-05-13