The New Criminal and Civil Penalties under Michigan’s New Marijuana Law

With the passing of the Michigan Regulation and Taxation of Marijuana Act (MRTMA) aka Proposal 1, there is a brand new and quite revolutionary set of laws which govern marijuana activities. They are quite different than what we are used to and it will take some time to get accustomed. Nevertheless, they are important to understand so here is a summary: (note – the interpretation summarized below was confirmed by the principle drafter of this portion of the initiative because its not always easy to discern).

We all now know that an adult possessing marijuana is legal but what about using it in public, or possessing more than what you are allowed to have? How about driving under the influence of marijuana or selling it without a license? Below I will break it down by separating different offenses by their penalties. (the applicable section number from which the penalty is derived in in parentheses)

$100 civil infraction (Sec. 15.1)

An adult using marijuana in public is punishable by a $100 fine. That is it. No matter how many times you commit the offense, it will always be no more than a $100 civil infraction. The same is true for cultivating marijuana in your residence in a manner where the plants are visible to another standing in a public place. Also, possessing more than 2.5 ounces of marijuana at your home without the excess being secure enough to restrict access from others. These three actions are punishable by a $100 fine only and forever.

Possessing or growing more less than two times the amount allowed by law (Sec. 15.2)

The MRTMA permits the purchase and possession of 2.5 ounces of marijuana at one time. An exception is in one’s residence, an adult may possess up to 10 ounces and cultivate up to 12 marijuana plants. What are the penalties for possessing more than these amounts? The MRTMA makes a distinction of whether the amount possessed was more or less than two times the allowable amount. For instance, if an adult possessed 4.5 ounces of marijuana in their vehicle, which is less than two times the amount permitted (2.5 x 2 = 5.0), the penalty is as follows:

First violation : civil infraction punishable by up to a $500 fine only

Second violation : civil infraction punishable with a fine not more than $1,000

Third and subsequent violation : misdemeanor punishable with a fine not more than $2,000

All of these offenses also cary the penalty of confiscation of the marijuana. What is interesting, is the fact that once a person commits two violations for these acts, every following violation, for the rest of their life, is a misdemeanor. They will never go to jail (save for contempt of court) but its a criminal offense that will be reported to your record. The ﬁne is quite large as well. Soon there will be the question of whether non-payment of the fine is grounds for a jail sentence and, if so, how much? Some court’s will undoubtedly cite a failure to pay the fine as a contempt of court punishable by up to 90 days in jail. Of course there are arguments against this interpretation so it will eventually be litigated to the Michigan Supreme Court. We can expect that process to take a few years.

This section explains what the penalty is for cultivating up to 24 plants or possessing not more than 2.5 ounces of marijuana. What if someone cultivates 25 plants?

Possessing or growing more than two times the amount allowed by law (Sec. 15.4)

The penalty for possessing more than twice the amount allowed is a misdemeanor but the maximum fine is not identified nor does the number of violations matter. What does matter is whether there is proof that the violation was “habitual, willful and for a commercial purpose”. If so, the person can be punished by a maximum jail term of one year. If it cannot be proven there is any “commercial purpose” the penalty is a misdemeanor without any potential jail time. Commercial could be defined to mean profit, trade, business or money oriented. Therefore, a person possessing a half pound of marijuana with the intent or purpose of selling it to another over the age of 21 will be subject to a misdemeanor, probation and potential jail time. The government will likely argue that civil asset forfeiture will also be possible in this circumstance. What happens if there is a distribution or sale of marijuana to a person under the age of 21?

Marijuana Offenses Specific to persons under the age of 21 years old (Section 15.3)

There are offenses and penalties that are specific to those younger than 21 years of age but only if they are in possession of an amount equal to or less than 2.5 ounces or 12 plants. The following offenses are captured under this section:

using marijuana in public

delivery of marijuana to a person under the age of 21 or its receipt by someone under the age of 21

possessing or consuming while on school grounds

Under these circumstances if the offender is under the age of 18 the penalties are different as well as the number of previous offenses.

A first offense is a civil infraction with a fine of $100 or community service and the completion of a four hour drug education class.

A second offense is a a civil infraction with a fine of $100 or community service and the completion of an eight hour drug education class.

For those between the ages of 18 and 21 the penalties are the same but without the requirement of drug education/counseling.

Marijuana Offenses The Penalties for Which Will Not Change Despite the MRTMA

There are several offenses that are not specifically enumerated by the MRTMA. Those offenses will be punished as they would be before prop 1 passed on November 11, 2018. These offenses include the following:

Distribution of marijuana to a person under the age of 21 is a felony punishable by up to four years in prison. It does not matter if there was an exchange of money. Further, the distribution

of marijuana to any person in exchange for money otherwise known as “remuneration”, is a felony punishable by up to four years in prison.

Marijuana Offenses Newly Created by the MRTMA

The following offenses where specifically prohibited by the MRTMA but the penalty was not identified:

Consuming marijuana while driving (not driving under the influence of marijuana).

Smoking marijuana in the passenger compartment of a vehicle

Possessing or consuming marijuana on school grounds or a correctional facility (over the age of 21)

Butane extraction in a residence or vehicle

These actions are prohibited by the MRTMA but there is no similar offense for this conduct in the Controlled Substance Act. It could be argued that they should not be penalized at all. I anticipate legislation to cover this issue.

The criminal changes to marijuana law in Michigan are significant and comprehensive. They are going to take some getting used to but they are probably the best set of marijuana criminal/civil infraction laws in the country.

Barton Morris ( 65 Posts Barton Morris is the principal attorney of the Cannabis Legal Group, a Royal Oak law firm specializing in all marijuana related legal issues including criminal defense, business law, licensing, consulting, land use and real property. Barton is known as a cannabis law specialist in Michigan having developed this expertise since 2008 with the enactment of the Michigan Medical Marijuana Act. He is a council member of the Marijuana Law Section of the Michigan Bar Association and chair of its science committee. One of the ways Barton has developed his marijuana law specialty is through the training he received becoming the only attorney in Michigan certified by the American Chemical Society as a Forensic Lawyer-Scientist maintaining a focus on marijuana related science. He is also a graduate of the prestigious Gerry Spence Trial Lawyer’s College and sits on its Alumni Board of Directors. Barton maintains board positions with the DUI Defense Lawyers Association and the Michigan Association of OWI attorneys. He also is on the faculty of both of those organizations regularly providing presentations and teaching lawyers from all over the country. Barton has been recognized professionally with several awards including being rated 10/10 by AVVO, and a Super Lawyer Magazine outstanding attorney in 2014, 2015 and 2016. Dbusiness Magazine also named Barton Morris a Top Attorney in Metro Detroit in 2012 and 2013 and named the Cannabis Legal Group the “Face of Cannabis Law” for 2016.

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