Higher Ground: Patient takes a hit in Oakland County court

"I was ignorant and naïve thinking that people actually have protections under the Michigan Medical Marijuana Act," Mr. Smith says.

This is the story of Smith's son, Joe, and what occurred after he was busted for marijuana in Oakland County. I'm not using the family's real name at their request. "We're afraid of these people at this point," says Mrs. Smith, Joe's mother.

Mrs. Smith is referring to her fear of the police and judicial system in Oakland County, where intolerance of the medical marijuana law and its intent have been shown time and again. Oakland County Prosecutor Jessica Cooper and Sheriff Michael Bouchard have made no bones about their prohibitionist attitude toward medical marijuana. Bouchard even made the news last week in saying he might lead an effort to get Gov. Rick Snyder to veto a law passed by the state legislature setting up a system that would allow medical marijuana dispensaries and cannabinoid-infused edible products.

"It's a bad place to get busted," says Cannabis Counsel attorney Matt Abel, who's also executive director of the Michigan chapter of the National Organization for the Reform of Marijuana Laws, or NORML.

But getting busted in Oakland County is indeed what happened to Joe, who was 23 at the time. He's an artist who suffers from depression, anxiety, severe abdominal discomfort, nausea, vertigo, and exhibits behaviors on the autism spectrum. Joe was prescribed a laundry list of drugs that he says didn't help much, and he was hospitalized for a while.

"He was loaded up with so much medication, he didn't know if he was coming or going," Mrs. Smith says.

Joe found relief with medical marijuana. He was able to do his artwork, enter juried shows, and actually make some money while using marijuana. But then things fell apart.

Joe was busted in Oak Park, where he lives, in early 2015 — although he had a current state certification for medical marijuana. In a scenario that I have heard many times (and suspect that it is not always true), police showed up at his house after a complaint that his burglar alarm had gone off. Joe wasn't home. After entering the house, police discovered marijuana.

Joe had 16 plants, which was within the amount he was allowed to have, as he was a caregiver for someone else. That allows him to possess up to 24 plants. However, he did have more than the allowed 2.5 ounces per patient of dried marijuana on hand and there was a small amount of wax. Wax, also known as butane hash oil, is a concentrate of the active components in marijuana that is stronger than dried buds.

Joe says that most of the dried marijuana was unusable, and the jars were marked to indicate that. However, it was nothing police recognized, such as the word "unusable," on them.

When Joe returned home, police were there. He was arrested and handcuffed. The officers reportedly laughed at him when he had a panic attack in the police car. They weren't laughing hours later when they called his parents to request that they "bring him some sort of medication," Mrs. Smith says. That was the first anyone outside the jail knew of Joe's incarceration.

Although he had no previous record, Joe was charged with manufacturing a controlled substance with intent to deliver.

Joe faced Judge James Alexander in Oakland County Circuit Court. As a first offender with no criminal record, Joe was eligible for a deal based on the Holmes Youthful Trainee Act. HYTA allows offenders between the ages of 17 to 24 to plead guilty, but the court does not enter a conviction and the records are sealed from the public. The Smiths say they were told that if they fought the charges, "we'll make it harder on you." Joe's understanding was that he would be sentenced to a year on probation.

"I would have sucked up and struggled through the year," says Joe, who is now back on pharmaceutical drugs that make him disoriented and nonfunctional.

However, the deal was dependent on Joe testing clean for drugs within 30 days, according to the Smiths. This is based on a widespread, but wrong, belief that all metabolites for THC leave the body within that time frame. Joe had been taking concentrates to medicate his symptoms, and had a high concentration of THC metabolites in his body. It took 63 days for him to test clean.

The Smith family presented a battery of evidence from Joe's doctors, and documentation showing that it can take much longer for the body to be clear of THC metabolites. Judge Alexander would not consider them, according to the family, especially when drug tests did not show a clear, uninterrupted drop in metabolites. Joe says he was not using marijuana.

"Why would I shoot myself in the foot?" he asks.

When cannabis is ingested, it attaches to fat molecules in the body. These metabolites are shed over time, but not at a steady rate. There are natural spikes in the presence of metabolites in blood or urine, because fat molecules shed them at an unsteady rate based on what state the body is in at a given time. A chart available on the California NORML chapter's website shows that while the overall trend is downward, there are small spikes when metabolites shed faster at times.

"It happens all the time," Cannabis Counsel's Abel says. "It's a regular occurrence with people on probation. ... It's a jagged line; it jumps up and down. A person can test negative one day and test positive the next day. It goes in spurts; there are studies documenting that."

Judge Alexander, Abel says, "is a strict Republican constructionist."

Joe was eliminated from the HYTA program due to the lack of a clean test within 30 days, according to his family.. He now has a felony conviction because he pleaded guilty, and is serving three years of probation. He has to take drug tests three times a week.

In the meantime, he's back on the prescription drugs that render him a zombie.

"I'm just a throwaway to these people," Joe told his parents during the legal process.

That would appear to be true when the judge would not take into account reports from medical professionals and scientific studies on how metabolites are shed from the body. The Smiths claim Alexander ignored all that, saying: "This doesn't mean anything to me."

Joe is a victim of the stigma against marijuana and marijuana users, even when it's for medical use. It's an injustice that the legal system wouldn't take into account Joe's medical history and evidence speak directly to how long it takes for markers of marijuana use to shed from the body.

When you really look at it, the War on Drugs has always been about injustice. As activists push back against marijuana prohibition, there are victories and losses — such as the state Supreme Court refusing to take up the MI Legalize appeal in their attempt to get recreational legalization on this fall's ballot. Shedding these injustices from the body politic resembles the way metabolites are shed from the body. The overall trend is in the right direction — especially with some form of legalization on the ballot in nine states this November.

Still, there are spikes of injustice ensnaring people like Joe. That leaves him loaded up on legal drugs and his family living in fear of those who are supposed to be protecting us.

Maybe they were naïve in believing they had protection.

About The Author

Larry Gabriel

Larry Gabriel covers cannabis for Metro Times. He also writes the Detroit Watch in the monthly Michigan Cannabis Industries Report. Larry's chapter "Rebirth of Tribe" in the book Heaven Was Detroit, from jazz to hip-hop and beyond chronicles the involvement of Marcus Belgrave, Wendell Harrison, Harold McKinney,...
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