In this edition of the "Sheriff's Corner," I am addressing the history of marijuana in regard to the states ability to pass laws allowing the possession and usage of marijuana. Also known as marihuana, weed, cannabis, Mary Jane, grass, sha-bang-a-bang, the chronic, reefer, chiba and wacky tabacky, the days of "Cheech and Chong" are somewhat a reality now.

I would have to say the million dollar question of the decade is, "If marijuana is illegal at the federal level, how are states allowed to pass laws making it legal?"

There are many varieties of the cannabis plant. I could spend a day trying to explain the many differences between the plant strains and multiple varieties. For argument sake, we will refer to them all as marijuana for an easier explanation in this article.

Marijuana is classified as a "Class I" controlled substance, meaning, at the federal level, it is still considered illegal. So, at face value, federal law always supersedes state law. However, you have to look deeper into this topic to understand the issue in its entirety.

Before we go any further, this article is solely for informational purposes and is meant to be unbiased. Agree or not, the law is here, and it will not be going away.

During the prior presidential administration, there were two doctrines established that helped facilitate the states ability to adopt laws regarding the usage, growing and sale of marijuana.

THE COLE MEMORANDUM

The Cole Memorandum was a U.S. Department of Justice memorandum issued Aug. 29, 2013, by the U.S. Deputy Attorney General. The memorandum, sent to all U.S. attorneys, governed federal prosecution of offenses related to marijuana. The memo stated that given its limited resources, the Justice Department would not enforce federal marijuana prohibition in states that "legalized marijuana in some form and ... implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana,"

So, in essence, an executive order was put in place basically saying that there would be no enforcement, with a "hands-off" approach on the states who passed marijuana laws as long as it was under some sort of regulation.

THE ROHRABACHER-FARR ACT

The Rohrabacher–Farr amendment became law in December 2014. This act, passed by Congress, prohibited the Justice Department from spending any funds to interfere with the implementation of state marijuana laws.

This was further confirmed in October 2015, when a U.S. district court judge affirmed the meaning of the Rohrabacher–Farr Act, providing limitations on future prosecutions.

This was further affirmed in August 2016 on an appeal with the Ninth Circuit Court of Appeals, which involved two cases of marijuana dispensaries that were sanctioned in California and Washington. This overturned the lower court ruling and exonerated the two dispensaries.

Basically, if the feds wanted to enforce any federal marijuana laws against the states, there would be no funding to pay for this enforcement.

SESSIONS MEMO

On Jan. 4, 2018, the U.S. Attorney General issued a memo that rescinded the Cole Memorandum and restoreed the principles governing prosecutorial discretion that were in effect prior to the issuance of the Cole Memorandum.

Specifically, the memo states that federal prosecutors, in deciding which cases to prosecute, are to “weigh all relevant considerations, including federal law enforcement priorities set by the attorney general, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

With that being said, the current presidential administration has stated, “It’s a very big subject and right now we are allowing states to make that decision. A lot of states are making that decision, but we’re allowing states to make that decision.”

In general, there are no plans to further any enforcement, or take any adverse action, in regard to the states that have legalized marijuana.

DEFINITIONS

The active ingredients in marijuana are broken down by two general classifications, CBD and THC.

CBD: (Cannabidiol) is is one of 113 identified cannabinoids in marijuana and accounts for up to 40% of the plant's extract.

THC: (Tetrahydrocannabinol) is a compound that is the physiologically active component in marijuana.

Recently, the DEA did change the classification of CBD products that limit the THC content to below 0.1% which is now considered a Class V drug. Due to this change it is allowed to be sold in stores with no special provision or license.

WHAT IS HEMP?

Hemp is a strain of marijuana that is grown specifically for the industrial uses of its derived products. The THC in hemp is extremely low (THC less than 0.3%), meaning this is more of a cash crop, rather than it having the ability to be used as a drug. The licensing requirements to grow hemp, pales in comparison to that of a license to grow standard marijuana.

In December 2018, the Hemp Farming Act was signed into law on the federal level. This act removed the Schedule I controlled-substance classification from hemp and classified it as an agricultural product.

PROHIBITIONS

There are restrictions on who can possess and where to grow. Here are some "no-no's" to remember.

MCL 333.27954 states:

(Unauthorized Activities)

"(a) operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana;

(b) transfer of marihuana or marihuana accessories to a person under the age of 21;

(c) any person under the age of 21 to possess, consume, purchase or otherwise obtain, cultivate, process, transport, or sell marihuana;

(d) separation of plant resin by butane extraction or another method that utilizes a substance with a flashpoint below 100 degrees Fahrenheit in any public place, motor vehicle, or within the curtilage of any residential structure;

(e) consuming marihuana in a public place or smoking marihuana where prohibited by the person who owns, occupies, or manages the property, except for purposes of this subdivision a public place does not include an area designated for consumption within a municipality that has authorized consumption in designated areas that are not accessible to persons under 21 years of age;

(f) cultivating marihuana plants if the plants are visible from a public place without the use of binoculars, aircraft, or other optical aids or outside of an enclosed area equipped with locks or other functioning security devices that restrict access to the area;

(g) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way;

(h) possessing marihuana accessories or possessing or consuming marihuana on the grounds of a public or private school where children attend classes in preschool programs, kindergarten programs, or grades 1 through 12, in a school bus, or on the grounds of any correctional facility..."

It is important to also note that it is illegal to drive a motor vehicle while consuming marijuana whether it is smoking or consumed in some other form. A passenger cannot smoke marijuana.

In 2015, the Michigan Court of Appeals ruled that a person in a parked vehicle, in a place that was open to the public, could not smoke marijuana while in the vehicle. This was a direct ruling pertaining to medicinal marijuana, before the recreational law was passed. I can see where the argument can be made that this is still true today, but we will have to wait for new case law for an exact determination.

So, there you have it. Hopefully this clears up some of the general questions you may have had, or aids you on not doing something you're not supposed to.

This information is provided to you for clarification on specific laws, and not legal advice. This is not to be construed as a personal opinion, agreement or disagreement of any specific law.

If you have any questions on any specific topic, you can always email me your questions to rmartin@co.lake.mi.us.

As always, it is a honor serving and working for all of you who live, visit and work in Lake County. Working together, we can make a difference.