Effective January 1, 2014, Colorado became the first state in the country to allow cultivation, possessiond use of marijuana for recreational purposes.  Analysts estimate that Colorado will enjoy billions of dollars of increased annual revenue as a direct result of its decision to legalize marijuana.  Marijuana is heavily taxed in Colorado.  In addition, several related industries (such as marijuana-related tourist activities) will generate further revenue for the state.

However, nothing about Colorado’s state law has any impact whatsoever on the fact that the manufacture, possession, distribution and consumption of marijuana is still illegal under federal law.  Federal penalties for marijuana-related offenses under the federal Controlled Substances Act are severe.  

Under the Bush administration, the DEA and the Justice Department took an aggressive stance regarding marijuana dispensaries in states like California that had robust medical marijuana industries that were legal under state law.  Marijuana dispensaries and cooperatives in California and other states that allowed medical marijuana would often be raided and their owners indicted, convicted and imprisoned.  

Nothing about the illegality of marijuana has changed since then.  However, the Obama administration has announced that it will not actively prosecute people involved in the sale of marijuana as long as these individuals do so in compliance with applicable state laws.  This announcement was followed by a marked decrease in marijuana-related federal prosecutions of individuals who run marijuana businesses that comply with their state’s laws.  However, since federal law has not changed, marijuana business owners operate their businesses risking that one day, political opinions could shift and they would once again be at risk for a lengthy prison sentence.

Since Colorado kind of legalized marijuana, there has been some discussion about expanding the Michigan Medical Marihuana (that’s how Michigan spells marijuana for some reason) Program to include full de-criminalization.  Currently, under Michigan law, marijuana is only lawfully possessed and consumed by individuals who comply with the medical marijuana law.

Under Michigan’s medical marijuana law, an applicant must have a qualifying debilitating medical condition as defined by state law and must also obtain a physician’s certification that the patient would benefit medically from the use of marijuana. The applicant’s physician must be a Medical Doctor (MD) or Doctor of Osteopathic Medicine (DO) fully licensed to practice in Michigan. The applicant must have an established patient/physician relationship with the doctor. Other licensed health professionals such as chiropractors, physician’s assistants or nurse practitioners cannot sign the certification.  Importantly, Michigan’s medical marijuana law neither protects marijuana plants from seizure nor individuals from prosecution if the federal government chooses to take action against patients or their caregivers under the federal Controlled Substances Act.

In short, Michigan has a heavily-regulated medical marijuana industry.  It is a far cry from the state of the law in Colorado.  Although there is some support for making Michigan’s law similar to Colorado’s law, even if that were to happen, marijuana would still be illegal under federal law.  There is not currently an indication that marijuana will be legalized under federal law any time soon.  So, if you like smoking marijuana, you smoke at your own risk.  

— Kassem Dakhlallah is a senior partner with At Law Group, PLLC.  His practice focuses on complex litigation, including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at (313) 406-7606 and kd@atlawgroup.com.