Medical Marijuana:Not an easy toke in the park By Anne Stanton Dan Benac of Cadillac, a legal medical marijuana patient, will facefederal prosecution at a Grand Rapids courthouse next week for the possession of several joints on tribal land. A prosecutor involved with the case said the tribe “doesn’t want to buy into the medical marijuana law,” and added that Benac was diagnosed as a qualifying patient by a doctor who had never met him. Benac was cited on January 16 in the parking lot of the tribally-owned Leelanau Sands Casino where he and his wife were attending a euchre tournament. They planned to stay at the tribal lodge, but couldn’t get into the room until 4 p.m. Benac said he decided to go to his truck to “use his medicine” during lunch to alleviate pain from a degenerative disc in his back. He was arrested by a tribal officer (the tribe has video cameras in the parking lot). Following his citation, Bernac faxed a dated copy of a downstate doctor’s approval for medical marijuana use. Benac submitted his application on October 28, but still had not received the official card. The law states that patients are considered certified after a 20-day waiting period, unless receiving a denial. The case will go to federal court since Benac was on tribal property.
THE BACKGROUND The medical marijuana law, passed by voter referendum in November of 2008, was met with enthusiasm and relief by users, including Benac who has smoked marijuana since he was 18 years old. He said he doesn’t want to follow the path of his late brother, who relied on prescription pain medicine for 14 knee surgeries and three back operations. Benac blames the adverse effects of prescription medicine for his brother’s death at the age of 47. Benac and many other patients hope to fully legalize marijuana someday, but there’s been a strong pushback for even medical marijuana use from area police, landlords, doctors, and now the Grand Traverse Band of Ottawa and Chippewa Indians. Doug Donaldson, chief assistant prosecutor for Leelanau County, said that Benac obtained his patient certification from a doctor who “never laid eyes on him.” “That’s kind of going to a mill in that regard. You pay $200 for a doctor, and there’s certainly no stethoscope he could use through the mail before deciding, ‘This is the only drug for you.’ I’m sympathetic to the plight of people who really need it, but there seems to be an abuse of the system.” Benac said that he obtained his medical records, including an MRI, from Mercy Hospital and mailed them to Dr. Andrew Thomas of Detroit for review. He did not need a personal exam, in part because the law doesn’t require it, and secondly, because degenerative disc disease, by definition, only gets worse over time. Benac’s attorney, Mike Maddaloni, claimed that the doctor’s approval satisfied the criteria set out by the state’s medical marijuana law. He believes the federal trial is a waste of taxpayer’s money. “I’m incensed, wasting this kind of money on four joints. After President Obama has said, don’t waste taxpayer money prosecuting the legal use of medical marijuana, I find this is just absurd.”
NEW TC CLINIC Not all clinics that specialize in certifying medical marijuana patients are the same, said Misty Cassell, who recently opened the Chronic Certification Center in Traverse City. “I call the mobile clinic the traveling circus. They come up for a day, rent a room, run people through and they really don’t care. They’re just there for the money; that’s not what we’re about. I just don’t agree. Our doctor actually cares about people, goes through their medications, spends a lot of time with them to ensure that no harm will come to them. “The places that have a bigger name, they’ll spend five minutes with them. … That really bothers me.” Cassell, who opened her first clinic in Farmington Hills, said specialized clinics are necessary because so many doctors want no part of the medical marijuana law. “There’s an incredible amount of resistance up here. About 20 percent are willing to approve it, and that’s being generous. Some are fine with patients medicating with marijuana, but they refuse to participate in approving it. Some patients told me their doctors will no longer see them if they choose to medicate that way. There’s a lot of different views.” It was “very, very rough” to find an office location, Cassell said. “We were turned down by several landlords. Cassell said she even received a threatening email in November or December. “I couldn’t trace it back to who sent it, but it said, ‘there was a place in hell for me’ and they’d be sure to see me there. They’d make sure, ‘I got what was coming.’” Cassell finally found an office at Logan’s Landing, where she has felt welcomed. “Our business is slow, but steady. We’re just getting our name out there,” she said.
ARCHIE KIEL In other news, Archie Kiel of Rapids City failed to get his case dismissed at a February 12 evidentiary trial held by 46th Circuit Court Judge Janet Allen. Kiel is a “caregiver,” meaning he may legally provide marijuana to medical marijuana patients. He was profiled in a July 27 Northern Express story, and busted a few weeks later by the Traverse Narcotics Team (TNT). Kalkaska County Prosecutor Brian Donnelly charged that Kiel was growing 31 more plants than the legal limit. On the day of the August 14 raid, which involved a helicopter fly-over, he instructed TNT to leave 36 plants at Kiel’s home out of consideration for Kiel’s caregiver status for two patients and himself (he is allowed 12 plants per patient). Among those providing testimony was Kiel’s son, Dusty, who testified that he had sent in an application in late July, which would have made him a legal patient on the date of the raid. He did not have a copy of his paperwork at the trial. In an interview following the trial, Kalkaska County Prosecutor Brian Donnelly pointedly questioned Dusty’s truthfulness. Kiel had told TNT during the August 14 raid that his son hadn’t yet mailed in his application, Donnelly alleged. “I will tell you this, if any of those people lied during the hearing, I will charge them with perjury,” Donnelly said. Kiel countered that he told TNT that Dusty still had the *original* application because he had accidentally sent the state a copy. The trial included evidence of a local judge’s July 31 decision to allow Dusty to use marijuana during his probationary period. Even if Dusty were to be ruled as a legal patient, Kiel could still be found for illegally growing in excess of 18 to 19 plants, depending on whose count you believe.
BLUNT TALK Kiel’s attorney, Ross Hickman, argued that his client was within the law. Twenty-one of his “plants” were actually cuttings that hadn’t taken root; Judge Allen said she didn’t feel qualified to rule on the issue. Hickman also argued the state law’s “affirmative defense,” in part, allows a caregiver to grow enough plants to ensure an uninterrupted supply of medicine. Kirk Metzger, chief assistant prosecutor, argued this could rationalize growing any number of plants. The law calls for a maximum sentence of eight years (double the usual four years, since Kiel was previously convicted for possession). But Donnelly said, “Nobody is in prison for offenses at that level. That’s a misconception.” Kiel, who testified he was “100% legal,” called the decision a “partial victory.” But the decision disappointed many of his 23 courtroom supporters. Kiel said that patients are now being encouraged to send their applications via certified mail to avoid legal trouble. Donnelly said he was happy with the ruling, which also included Judge Allen’s decision that Kiel’s outdoor balcony was secure, but not his front yard shed. “I was glad the judge said the police did not act wrongfully. I get emails from these idiots accusing me of all kinds of things. I don’t think the TNT guys or law enforcement are trying to make it hard on people; we’re trying to enforce the law as it’s written,” Donnelly said.
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