By Steve Elliott of Toke of the Town

A local judge has ruled that Michigan’s Medical Marihuana Act does not protect dispensaries from prosecution.

In a written opinion issued last week, Oakland Circuit Judge Colleen O’Brien granted a motion from the prosecutors to preclude defendant Alexander Vlasenko from asserting a defense under the state’s medical marijuana law, reports Ann Zaniewski at the Oakland County Daily Tribune.

Vlasenko, who is facing three counts of delivery and “manufacture” of marijuana, won’t be allowed to even mention medical marijuana during his trial.

The charges stem from an undercover investigation of a Waterford Township business called Modern Age. (Sad but true: apparently Oakland County law enforcement officials have nothing better to do than conduct “undercover investigations” of medical marijuana dispensaries.)

According to Judge 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. (Sounds to me like law enforcement were the ones flouting the law.)

They and a third undercover officer allegedly bought marijuana from Vlasenko.

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

Vlasenko’s defense lawyer, Mitchell Ribitwer, argued that the prosecution was unjustified and its position was not supported by case law. Vlasenko contends that he is a legal caregiver.

Judge 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 made outside of a caregiver/qualified patient relationship.”

O’Brien claimed 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,” Judge O’Brien 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 a caregiver, not the dispensing of marijuana to the world at large,” the judge claimed.

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 claimed. “You’re limited to five people.”

According to the information in Judge O’Brien’s opinion, when two two undercover officers with fake medical marijuana cards 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 claimed they were medical marijuana patients. Hamilton told them it would cost $25 to join and $5 on each visit. 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, according to the judge’s written opinion.

Back in the front room, Hamilton told the officers about having medical marijuana brownies available and said if they referred a friend, they would get a t-shirt.

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

Vlasenko’s trial is scheduled for September 6.

Court records show that Hamilton has also been charged with three counts of delivery and “manufacture” of marijuana. She has a trial date of October 27.

Defense attorney Neil Rockind, who is not involved in the Vlasenko case but who advocates for medical marijuana patients and caregivers, said the Act protects caregivers who provide marijuana for qualified patients.

Judge O’Brien’s ruling appears to contradict an Isabella County judge’s ruling in a case involving another dispensary known as Compassionate Apothecary, according to Rockind.

“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.A”

Other cases are depending against a number of people 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 overwhelmingly approved legalizing medical marijuana, with 62 percent voting in favor.

Article From Toke of the Town and republished with special permission.