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Appeals court: No medical pot smoking in parking lot

Chad Livengood
Detroit News Lansing Bureau

The Michigan Court of Appeals has dived into another legal fight involving the state’s murky medical marijuana law and ruled that a licensed medical marijuana patient can be prosecuted for smoking a joint in public.

Two of the court’s three judges said David Michael Carlton violated the state’s voter-approved medical marijuana law by smoking a joint in his car while parked at the Soaring Eagle Casino parking lot in Mount Pleasant. In August 2013, Carlton was arrested by police after his smoking was noticed by casino security officers on a closed-circuit camera.

Lower courts gave Carlton immunity from prosecution because he argued he was a medical marijuana patient who was smoking pot in privacy — in his private car where there were no passersby. But Court of Appeals Judge Michael J. Kelly disagreed in a decision released Tuesday.

“...the fact that a public place was intended to be used in private does not alter the public character of that place,” Kelly wrote in the majority opinion joined by Judge Christopher Murray. “A person who goes into a restroom that is generally open to the public, enters a stall, and closes the door, does not thereby transform the stall from a public place to a private place.”

The 2008 law “applies to persons who smoke medical marijuana in a parking lot that is open to use by the general public, even when smoking inside a privately owned vehicle, and even if the person’s smoking is not directly detectable by the members of the general public who might be using the lot.”

All three judges also ruled that when the district court rehears the case, the Isabella County prosecutor can argue for adding a charge that Carlton improperly transported medical marijuana. The trial court must consider the motion and give sufficient reason for its ruling so it can be reviewed after a possible appeal, according to the Court of Appeals decision.

The majority judges noted that medical marijuana patients can’t be issued blanket immunity against prosecution because the law “balanced the needs of persons suffering from medical conditions ... against the public’s continued interest in restraining the harmful effects of recreational marijuana use.”

But appeals Judge Douglas Shapiro dissented in part because the law “leaves open the possibility that in some circumstances a private vehicle can constitute a ‘private place’ even though it is located in an area to which the public has access.”

Shapiro agreed that the charge against the defendant should be reinstated and go to trial, but Carlton should be allowed to make the privacy argument as a defense.

“Although we are reinstating the charge, defendant should be permitted to introduce evidence that he is a lawful marijuana patient, and the trial court should instruct the jury to determine whether he was in a public or private place,” he wrote in his separate opinion. “If they find the latter, defendant should be acquitted.”

The 2008 medical marijuana law has led to widely varying interpretations by judges across the state about whether caregivers and patients are violating it.

In July, the Michigan Supreme Court unanimously ruled to send the cases of two Oakland County men back to circuit court to decide whether they are immune from prosecution. In the majority opinion written by Justice Brian Zahra, the state’s highest court even created a four-part test that judges should follow before trial to decide whether medical marijuana defendants are immune from prosecution or abusing the state’s law.

The high court has wrestled with nine different cases in the seven years since Michigan voters legalized marijuana for medicinal purposes, Zahra said in that opinion. The cases often involved conflicts in state law over the narcotic, possession of which remains illegal for recreational use.

“The many inconsistencies in the law have caused confusion for medical marijuana caregivers and patients, law enforcement, attorneys, and judges and have consumed valuable public and private resources to interpret and apply it,” Zahra wrote for the court.

clivengood@detroitnews.com