Many qualifying patients who have the right to acquire and utilize cannabis for medicinal purposes are faced with the challenges of understanding their state laws and how they impact different areas of the law such as firearms, DUIs and child custody.
Can Medical Cannabis users possess firearms?
In Michigan, like all states with cannabis laws, a certain class of individuals are allowed to use cannabinoid therapeutics for medical purposes. However, the act only provides for a defense to state prosecution for the possession and use of cannabis under state law.
Federal law prevents an unlawful user of cannabis, or someone addicted to it, from acquiring a firearm. A person is considered an unlawful user if they have engaged in regular use over a period of time proximate to the possession of the firearm. Additionally, when purchasing a firearm, buyers must fill out a federal form and answer the question: “Are you an unlawful user of, or addicted to, cannabis, or any depressant, stimulant, or narcotic drug, or any other controlled substance?”
The issue becomes complicated because both state and federal law govern the status of cannabis as an unlawful drug. Medical users may risk federal prosecution for making false statements on forms required by ATF for the purchase of a firearm. Medical users currently possessing a firearm, or wishing to in the future, should consult with an experienced attorney to help them sort through the federal and state laws that govern both cannabis and firearms.
Opinion by Neil Rockind P.C. Rockind Law
Medical Cannabis and Children -
What impact has medical or recreational use had on the family law system? It is important to bear in mind that pursuant to OCGA 9-11-65(e), Superior Court Judges are very much the gatekeepers to our children and our children’s best interests. Oftentimes, this gatekeeper role is triggered in divorce cases where the custody of a child is at issue, but it can also come in the form of a legitimation petition or a modification action post-divorce.
In states where medical or recreational use are legal, the fact that a parent uses cannabis is not, by itself, enough to justify a denial or modification of custody / parenting time; Rather, in order to deny or modify custody / parenting time in such states, there must be a specific showing that a parent’s medical or recreation use of cannabis harms the child or otherwise impacts the child’s well being or best interests;
Family courts have identified numerous factors that tend to show that a parent’s legal use harms the child’s best interest including: whether the parent uses cannabis while exercising parenting time, where the parent stores the cannabis, and whether the parent’s use constitutes substance abuse under the DSM-IV, just to name a few; and Family court judges should continue to employ traditional tools such as drug testing, drug counseling, and ordering the parent not use cannabis while exercising parenting time in order to ensure the child’s best interest are protected despite a parent’s legal use of medical or recreational cannabis
It is important to note that as a general proposition, cannabis possession and use is still very much illegal despite the state laws. Nevertheless, as more and more states move towards legalizing broad medicinal use of cannabis, The family court system will have to wrestle with difficult issues concerning a parent’s Cannabis use due to the fact that some parents may move to states where such use is permitted, forcing a judge to determine parenting time and other visitation for such a parent. Thus, medical cannabis use will be a sticky issue for family law judges to deal with in the future.
Opinion by Lawyer Mark Jones, Columbus, GA
Driving under the Influence -
What does “under the influence” mean? Recently, the Michigan Supreme Court stated in overruling the Michigan Court of Appeals that “under the influence” does not mean that a patient simply had any amount of THC in their system. THC is measured by in the body by parts per billion or nanograms. While the amount nanograms in one’s blood alone does not definitively establish whether a person is driving a vehicle “under the influence” there have been studies which demonstrate that higher levels of THC correlate with an elevated level of intoxication.
Simply having a medical cannabis card does not mean that if you get sued for causing injuries in an automobile accident, that all of sudden the amount of THC in blood is irrelevant. In a personal injury lawsuit or even a criminal case, the amount of THC in the blood of the driver is likely to be a highly relevant factor in considering whether one was under the influence or negligent. Moreover, negligence is the standard in a personal injury lawsuit, so demonstrating some level of impairment will be highly probative even if it does not meet the motor vehicles code’s definition of “driving under the influence.”
Of course most patients have some level of protection and some explanations for THC being present in their blood. There is likely to be explanations available such as the recurrent use of cannabis leaving residual amounts of THC in the system. Additionally, whenever intoxication is at issue a particular person’s tolerance will also be a large factor in determining whether a driver was negligent or driving under the influence. However, the amount of THC in a driver’s system will undoubtedly be a variable that courts and juries will look at in determining a patient’s level of intoxication when driving.
Simply because a States law gives medical cannabis patients some leeway in avoiding the strict per se rules that make driving with any amount of cannabis in one’s system illegal under the motor vehicle code, it does not remove the hazards that smoking and driving causes. Many more cases will be decided by the states higher courts giving us more directions and guidance in this area of law, but certainly caution must be taken by all motorists on the road driving.
Opinion by the Clark Law Office