The Michigan Court of Appeals' recent decision in People v. Carruthers, issued July 11, 2013, has ruled that marijuana brownies made with cannabutter are not covered by the affirmative defenses allotted to Michigan medical marijuana patients. Their reasoning is that "under the existing statutory scheme, an edible containing THC extract from marijuana resin is not 'useable marijuana' under the MMMA" (Michigan Medical Marijuana Act).
Curruthers was stopped in traffic and found to be in possession of marijuana, brownies, and cookies. As he was in a possession of an amount appropriate for him and his patients, the marijuana in baggies was allowable under the law. However, the lower court denied the defendant the right to use the affirmative defenses of the Michigan Medical Marijuana Act for the brownies, as the People's expert stated that THC (Delta 9 tetrahydrocannibinol) was present when tested, but no actual leaves or flower particles were detected within the brownies. The defense admitted they were prepared with cannabutter as well.
The People's lab was unable to detect plant matter or even whether or not the THC within the brownies came from a marijuana plant or by synthetic means. The defense did not bring forth any experts to test the brownies independently to dispute the lack of marijuana leaves and flowers, and that it was manufactured from the usable portion of the marijuana plant, as well as the THC not being synthetic.
When defense counsel explained in the lower court that the brownies were not made from ground leaves, but from cannabutter, he opened up a huge cannaworms. At that point, an expert to test and explain cannabutter was crucial. There are facilities and experts in this field that possess the equipment necessary to accurately determine these questionable factors. One such facility is Iron Labs. Iron Labs has the technology (unlike the prosecution's facility) to determine whether or not the THC and other particles within the brownies at issue were derived from "usable" plant materials as defined by the Act, as well as assuring the Court the THC present in the brownies was not synthetically manufactured. However, in the absence of such experts being utilized, the Court of Appeals had only the inadequate opinion of the prosecution's expert to rely upon. It is unknown to this writer why the defense would not have hired their own experts to accurately test the brownies.
Most readers of this fine printed publication are aware that you make cannabutter from the flowers and leaves of the marijuana plant and that resin resulting in an extraction comes from the flowers and leaves, but it would appear that the Court of Appeals' judges are not quite as versed in the process. Although the object in this case is marijuana brownies, all other derivatives and edibles are also subject to this scrutiny, including ear wax hash.
The Court addressed this issue as an issue of first impression, as there is no case law establishing precedent. The questions posed are: Should the total weight of the brownie be considered or just the THC contained within; and is the marijuana resin used in making extracts "usable" marijuana per the Act? With a lack of opposing evidence or testimony, this Court took a narrow view of the language of the MMMA and concluded that "the brownies possessed by defendant were not 'usable marijuana' under the MMMA." Therefore, Caruthers cannot use Sec. 4 as a defense.
With all that said and in light of the Court of Appeals' very narrow interpretation of the MMMA and their removal of the protection for concentrates and extractions, there may still be a light at the end of the tunnel for Mr. Carruthers and medical marijuana patients. While the Court of Appeals did conclude that the brownies were not usable marijuana under the Act and he cannot use Sec. 4 for a defense, a recent Supreme Court decision has now broadened coverage under Sec. 8. The state law changed during this appeal and Mr. Carruthers' case has been remanded back to the lower court. He now has a right to move for dismissal and an evidentiary hearing to use the affirmative defenses under Sec. 8 of the MMMA.
Luckily for the defendant, the defense has a second chance get this one right.