Prosecutors exploited the ambiguity to charge medical marijuana users for possession of synthetic THC, despite the fact that the personal use of medical marijuana has been legal in Michigan since it was approved by voters in 2008. Under Michigan law, possession of synthetic THC constitutes a felony, whereas possession of marijuana and its derivatives by someone who is not a licensed medical marijuana user is a misdemeanor.
The emails were obtained by Michael Komorn, lead lawyer for Max Lorincz, a medical marijuana patient who lost custody of his child and now faces felony charges after the lab’s misleading classification of hash oil found in his home.
“I’d never seen a lab report reporting origin unknown,” Komorn told The Intercept. “What was produced for us was the most unbelievable set of documents I’ve ever seen.”
The emails show that as Michigan forensic scientists debated how to classify oil and wax produced from marijuana plants, they were pressured by police and prosecutors to classify the products in a way that would facilitate harsher drug convictions.
“It is highly doubtful,” a forensic scientist named Scott Penabaker wrote in May 2013, “that any of these Med. Mari. products we are seeing have THC that was synthesized. This would be completely impractical.”
And in February 2014, the supervisor of Lansing, Michigan’s controlled substances unit, Bradley Choate, wrote that a misleading identification of THC “could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual.”
Lab inspector John Bowen, referring to the THC in edibles and oils, agreed: “Is it likely that someone went to the trouble to manufacture THC and two other cannabinoids, mix them up, and bake them into a pan of brownies? Of course not.”
Despite the unlikelihood that Lorincz and others were somehow cooking up synthetic THC, Andy Fias, a state police lieutenant with West Michigan’s regional drug task force, reached out to the Forensic Science Division in January 2015. “We are encountering a significant amount of THC wax and oil,” he wrote.
“If we were to seized [sic] the wax/oil from a card carrying patient or caregiver and it comes back as marijuana, we will not have PC [probable cause] for the arrests.”
Fias had heard that lab analysts were classifying some oil as marijuana rather than THC. He asked: “Is there a way to get this changed? Our prosecutors are willing to argue that one speck of marijuana does not turn the larger quantity of oil/wax into marijuana.”
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