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A Better Partnership
May 11, 2017

COA: Convicted felons cannot be authorized medical marijuana providers, even if they have a license

A felony conviction automatically voids a defendant’s license to distribute medical marijuana, said the Michigan Court of Appeals. In the consolidated cases of People v. Tackman, No 330654, People v. Horner, No. 330656, and People v. Vantol, No. 331874, the court made clear that Michigan law does not permit felons to be licensed “caregivers.” Although Michigan’s Medical Marihuana Act (the Act) provides immunity to those who are licensed to provide medical marijuana to licensed users, it requires that the caregiver “has never been convicted of a felony.” Defendants failed to meet that standard, but the trial court nonetheless dismissed the charges against them, reasoning that because the Secretary of State never revoked the caregivers’ licenses, those licenses were still valid. The Court of Appeals reversed.
In both Tackman and Horner, police officers discovered the defendants’ marijuana possession after smelling marijuana emanating from the defendants’ homes. Searches revealed numerous marijuana plants and grow operations. The prosecution brought a litany of criminal charges against both defendants, including for the illegal possession and control of marijuana. At the time defendants were arrested, they both possessed state licenses authorizing them as medical marijuana caregivers. They both also had recent prior drug felony convictions.
At trial, both defendants sought immunity under Michigan’s Medical Marijuana laws. MCL 333.26424 provides immunity for caregivers who distribute marijuana under certain conditions, providing that a “caregiver who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty . . . for assisting a patient . . . with the medical use of marihuana in accordance with this act.” Importantly, the Act defines “caregiver” as “a person who is at least 21 years old . . . and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs.”  MCL 333.26423.
The trial court found that both defendants were immune under the Act because they possessed facially valid care cards issued by the state. In Tackman, the trial court “believe[d] it [was] incumbent upon the Secretary of State . . . to revoke [the] card in the event a felony has been entered.” Similarly, in Horner, the court found that the defendant “was vested with a care card” under the Act, and “it is incumbent on the Secretary of State  . . . to have procedures in place that adequately comply with the Act.” Noting that the defendants’ operations were undisputedly legal under the Act for caregivers holding valid licenses, the trial court dismissed all charges against the defendants.  
The Court of Appeals disagreed, holding that “neither [defendant] was eligible for § 4(b) caregiver immunity” under the Act. Because the Act “defines caregiver as one who ‘has not been convicted of a felony,’” and neither defendant met that definition, neither could claim immunity. According to the plain language of the Act, the court said, “whether the caregiver card was revoked or not is irrelevant.” Considering the defendants’ felony convictions, the defendants simply did not meet the definition of a caregiver. Accordingly, the defendants could not invoke immunity as caregivers under the Act.
Additionally, the court examined the trial court’s dismissal of charges in Vantol. The defendant in that case was found in Horner’s garage watering marijuana plants when the police executed the search warrant. After dismissing the charges against the defendant in Horner, the trial court also dismissed charges against Vantol, finding that Vantol was acting as an agent for Horner. Because Horner had immunity under the act, the trial court said, Vantol—as his agent—was also immune.
The Court of Appeals reversed, holding that “Horner did not in fact qualify for MMMA immunity,” meaning that “no agent of his may claim immunity” either. Because Horner was a convicted felon who could not claim immunity under the Act, neither could Vantol.
The court therefore reversed and remanded all three dismissals.

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