I was quite surprised and upset to see a fellow brethren attorney blogging so incorrectly about the interpretation of the MMMA. Whats more, he was agreeing with a short sited, narrow interpretation of the law. You can link to his piece here.
The suggestion that a person cannot utilize the protections of the medical use of marihuana defense if they get their card after there arrest is simply not true.
Nowhere in section 8 of the affirmative defenses does that statute specifically state, suggest, indicate or imply a contemporaneous requirement to have the card at the time of the arrest.
Moreover, many patients, who have been diagnosed with one of the enumerated conditions covered by law may not have the money to get a certification, may not be covered by health insurance, or may not have records immediately available to present to a doctor for review. I cannot accept the premise that such circumstances preclude a patient without their card from asserting an affirmative defense.
A careful reading of the statute very clearly indicates that there is no card requirement in section 8. Rather, one needs either a doctor to testify on their behalf or present evidence via an affidavit that they will receive palliative benefits from the use. To assert this defense you must be a patient or a caregiver, If you look at how the terms patient and primary caregiver are defined in the statute you will see that neither definition requires a registry card.
“Registry card’ protections as set out in section 4 are protections against arrest. The protections of section 8, the affirmative defenses, are those that occur in court after you have been arrested. The protections come if you can prove elements a-c at an evidentiary hearing, and, if you do so as a matter of law, the Court must dismiss the charges,. If the court does not make such a finding you have a right to present the medical use of marihuana defense to a jury.
This law was intended to protect a wide variety of situations that involve marihuana use for patients. It is not intended to be interpreted narrowly, and I suggest that these points should not be conceded in court. It only sets bad precedent.