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Law

Still rolling out

Michigan's medical marijuana regs

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Published 1/14/2009

You can't blame Rochelle Lampkin for being wary.During the campaign to gain public support for the Michigan Medical Marijuana Act, the Detroit grandmother was willing to step up and reveal that she would take a toke or two to deal with the excruciating pain she sometimes experiences as the result of an eye condition associated with her multiple sclerosis. The courage she and a few others showed in admitting publicly that they were breaking the law paid off in a big way.

Last November, Proposition 1 easily passed. As Greg Francisco, executive director of the nonprofit Michigan Medical Marijuana Association (MMMA) notes, nearly two-thirds of the state's voters approved the measure, with a majority of voters in every state House and Senate district giving a thumbs-up to the proposal. His point is that, even in the most conservative parts of the state, the plan gained voter approval.

"Support was overwhelming," he says, explaining that this "is an issue that transcends party politics."

Despite the public support, Lampkin and others currently find themselves in a gray zone. It's not herself that she's worried about so much as the person who provides her with her medicine — one joint at a time.

The law went into effect Dec. 4, making it legal for people receiving a doctor's recommendation to use weed to deal with their health problems, and for them or their designated "care givers" to grow a limited number of plants.

But, according to activists familiar with the issue, doctors by and large remain reluctant to prescribe pot, and state officials have yet to formalize regulations regarding the issuance of ID cards for medical marijuana patients.

The Michigan Department of Community Health has until April 4 to develop administrative rules governing an identification card system registration system for patients. That would mean the first cards would be issued by April 24.

Even though it is technically legal to grow and use pot for medical purposes because the law has been enacted, patients and caregivers still run the risk of being arrested, experts say. If that happens, they will be able to mount what's called an "affirmative defense of medical necessity" in court. But there's a caveat:

"This is a high standard that must be supported by the evidence ..." the MMMA advises on its Web site (michiganmedicalmarijuana.org). "Going to court is expensive and the results far from certain. An affirmative defense is not a 'get out of jail free card.'"

"Qualifying patients and primary caregivers will not be fully protected by the Michigan Medical Marijuana Act until the final administrative rules are published, the registry established and cards are issued," the organization advises. "Until that time it behooves both law enforcement and medical marijuana patients and caregivers to use discretion and common sense."

"Patients and caregivers are protected, but we don't want people to feel a false sense of security," advises Francisco, a Coast Guard veteran who helped spearhead passage of the law.

Complicating matters are the proposed regulations drafted by the state's Department of Community Health, which met with much criticism from activists at a hearing held in Lansing last week.

"They got an earful," says Matthew Abel, a Detroit-area attorney and medical marijuana activist.

Among those weighing in on the subject is Karen O'Keefe, an attorney for the Marijuana Policy Project in Washington, D.C., who played a key role in drafting Prop. 1.

In a letter to the MDCH, she accused the department — whose director opposed passage of the law — of seeking to add "onerous and unreasonable restrictions on patients" and, in some cases, seeking to impose rules that "contradict" the law passed by voters.

Among other things, O'Keefe criticizes the department for attempting to force medical marijuana users to keep their pot plants locked up, even though "far more dangerous medicine like OxyContin" can be stored anywhere. Likewise, proposed regulations go too far in invading the privacy of patients by subjecting their homes to "inspection or search."

"The department and law enforcement are not allowed to enter the home of the seriously ill and search the premises based on their having a Vicodin prescription," O'Keefe argues in her letter.

In all, O'Keefe identified 22 needed changes in the draft regulations.

James McCurtis, spokesman for MDCH, says his department is taking the objections seriously.

"We are taking those criticisms and suggestions into consideration," he says. "Our staff is looking over all the comments and trying to figure out what makes sense and what doesn't, what additions and subtractions to make."

In addition to concerns about the state overreaching, patients must also contend with finding a doctor willing to give an OK to pot use. That can be difficult, especially in the wake of a newly enacted law such as Michigan's.

"I think physicians are being pretty cautious," says Francisco. "Even though the law protects them from state sanctions, I think a lot of them are worried about losing their license to prescribe medications, which comes from the federal Food and Drug Administration.

"Because of that, physicians can be timid. A few will write recommendations, but others are watching to wait and see what happens before diving in."

Among those not hesitating to take the plunge is a Southfield clinic opened last month by the THC Foundation, a nonprofit based in Portland, Ore., that has operations based in seven other states where medical marijuana laws have previously been enacted.

Paul Stanford, the foundation's executive director, says the clinic saw 24 patients in December and planned to see an additional 75 this week.

Stanford says it is common for both patients and doctors to be wary when a law such as Michigan's is newly enacted. In Oregon, for example, the number of patients jumped from 500 the year the law was put in place to 25,000 a decade later.

Michigan, he says, will benefit from having other states having already broken ground. He predicts as many as 2,000 registered patients this year alone.

Francisco, too, is encouraged despite the obstacles. The vote on Prop. 1 is more than enough reason to be optimistic.

"When it comes to this issue, we are the mainstream," he says.

Curt Guyette is Metro Times news editor. Contact him at 313-202-8004 or cguyette@metrotimes.com.

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