In 2008, the voters of Michigan overwhelmingly passed the medical marijuana act [MMA]; a ballot initiative provided for in our state constitution. Because this law was not drafted by our legislators, many legal professionals and scholars have critiqued the law’s poor draftsmanship, claiming the MMA is difficult to interpret and harmonize.
This lack of clarity has caused some confusion over the past several years among marijuana caregivers, patients, lawyers, judges and law enforcement officers. No less than 9 cases involving the MMA have made their way to the Michigan Supreme Court, the most recent case decided in July 2015; the Court of Appeals has addressed the act in dozens of cases.
Our law firm has represented people charged with marijuana manufacturing, delivery and possession of marijuana in trial courts and on appeal to the Michigan Court of Appeals. We understand how this law was intended to work and have been able to utilize our courtroom experience to obtain results for our clients.
The MMA has two key provisions that seem to cause all the confusion. The immunity provisions contained in section 4 of the MMA provides people that conform to all of the applicable provisions of the act with immunity from prosecution. Then there are the affirmative defense provisions contained in section 8 of the Act.
Section 4 Immunity. This provision cloaks both care providers and patients with immunity. In order to establish section 4 immunity from prosecution, the accused must be in possession of a valid registry identification card; this is a prerequisite to the assertion of immunity. Thus, you cannot have a medical marijuana card that is expired and expect to get immunity; your card must be valid and up-to-date. Note: cards are renewed every two years.
The next step in compliance with the act is that a qualifying patient cannot possess more than 2.5 ounces of usable marijuana, or 12 plants. As for what, exactly, constitutes usable marijuana has been litigated. Usable marijuana does not included freshly harvested and thus non-dried plants; does not include stems or seeds which cannot be “used”; and should not include the water-weight inherent in freshly harvested plants.
Thus, one of the challenges for care providers and patients alike is going from being legal in the number of plants that can be maintained [12 for each patient] to being illegal following a bountiful harvest, i.e. because the weight of the yield is over 2.5 ounces.
The marijuana plants must be maintained in an enclosed, locked facility to achieve compliance with section 4. Many a client has run afoul with this provision, particularly the “locked” requirement.
Also, the qualifying registered patient, in order to be immune from prosecution, must be engaged only in the “medical use of marijuana.” If all of these requirements are satisfied, then the accused is presumed immune from prosecution.
Case dismissed? Well, not so fast. This presumption is rebuttable by the prosecutor who is entitled to produce evidence that an accused’s marijuana-related conduct was not for the purpose of alleviating the patient’s debilitating medical condition.
Section 8 Affirmative Defenses. This is an interesting and useful provision that supplies a care provider or patient -regardless of valid state registration- with an affirmative defense to any marijuana charge. Thus, this provision is available even when the accused does not have a valid marijuana card.
The affirmative defense shall be presumed valid whenever evidence adduced at an evidentiary hearing demonstrates the following, taken directly from the MMA:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or 31 debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.
If an accused can establish each of the above elements, without the presence of debatable questions of fact, then the Michigan Supreme Court has ruled that such a case should be dismissed. If questions of fact exist as to these elements, then the case cannot be dismissed but rather, submitted to a jury, with the ability of the accused to present evidence to that jury regarding the above elements of a recognized affirmative defense.
Such are the complications of defending a marijuana manufacture and distribution felony charge, or a simple marijuana possession misdemeanor charge. If you or a family member have been so charged and would like to assess your options, simply contact our law firm to schedule a free consultation.