Medical Marijuana: Not an easy toke in the park

Feb. 21, 2010

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.
 
A new trial date has not been set.