Understanding Possession of Marihuana Infused Products

Many patients know the benefits of marihuana-infused products, from food to topical treatments. These delivery systems offer patients a non-eva­sive and non-carcinogenic alternative to inhalation with increased potency.

When the Michigan Medical Marihuana Act (MMMA) was passed in 2008, it described three types of marihuana: marihuana plants, usable marihuana, and marihuana (in general).  

Usable marihuana and marihuana plants are addressed in MCL 333.26424 (Section 4), while marihuana is addressed in MCL 333.26428 (Section 8). In People v Carruthers, 301 Mich App 590; 837 NW2d 16 (2013), the Michigan Court of Appeals discussed the differences between these types of marihuana and how the MMMA treats them.

In Carruthers, a dispensary owner by the name of Earl Cantrell Car­ruthers was involved in a traffic stop and his vehicle was subsequently searched. Inside the vehicle, the police discovered and seized, among other things, individually labeled brownies and oatmeal cookies. The labels on the brownies and cookies indicated that each contained 2 grams and 3.75 grams of marihuana respectively.  

At the time of the stop, Mr. Carruthers possessed a medical marihuana card for himself, caregiver applications for four patients, and a caregiver certificate. Nevertheless, he was charged with possession of marihuana with intent to deliver and driving with a suspended license.

At the trial court, Mr. Carruthers filed a motion to dismiss under Section 4 arguing that he was immune from prosecution because he possessed less than 12.5 ounces of useable marihuana (up to 2.5 ounces per patient, plus 2.5 ounces for himself).

He argued that only the actual amount of marihuana used in the brown­ies and cookies should be counted in determining whether he was in pos­session of less than 12.5 ounces. Id. at 599. In other words, only 2 grams of marihuana per brownie and 3.74 grams of marihuana per cookie. The prosecution argued that the aggregate weight of the brownies and cookies should be considered. Id. at 600.  

The Court of Appeals disagreed with both sides. It noted that the MMMA uses the terms “usable marihuana” in Section 4 and “marihuana” in Section 8 to distinguish what both sections protect. The Court held that in order to constitute usable marihuana under the MMMA, any mixture or preparation must be of the dried leaves or flowers of the marihuana plant. Id. at 601.

This does not include an edible product made with THC extracted from resin. Therefore, marihuana infused products are not immune from pros­ecution under Section 4. As a result, none of the brownies or cookies that Mr. Carruthers possessed were counted as usable marihuana under Section 4. Id. at 608.

Carruthers did not end its analysis at Section 4. The Court examined the use of the word “marihuana” in Section 8 and noted that this section does not refer to usable marihuana, but instead states that a patient or primary caregiver, or both, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana.  

Section 4 and Section 8 require different elements in order to be asserted. Whereas Section 4 is available only to individuals with a registry identifica­tion card, Section 8 provides a defense to any individual whose physician has stated that he/she can benefit from the use of medicinal cannabis. More­over, Section 8 does not specify any particular amount that an individual may possess or use to assert a defense.

Carruthers held that these distinctions permit a Section 8 defense re­gardless of whether the marihuana possessed was usable and regardless of the quantity. Id. at 616.  

Furthermore, Carruthers affirmed that marihuana-infused products are legal to possess and use, to the extent that it is permissible under Section 8. That is, a defendant may assert as an affirmative defense that he is in pos­session of no more marihuana than is reasonably necessary to ensure unin­terrupted use. Id. at 617.

The Court recognized that although the defense is available, the bar to establishing the defense is a high one and would become increasingly higher as the amount or potency of the marihuana possessed increases. Id. It is an all or nothing defense.  

If, following an evidentiary hearing, a trial court decides that no reason­able juror could conclude that a defendant has satisfied the elements of a Section 8 defense, then the individual is precluded from asserting the de­fense at trial. Id. So, although possession of a marihuana-infused product is legal, it is the defendant’s burden to show that he is in possession of no more product than is reasonably necessary for his personal or his patient’s use.