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What To Know When Relying On A Affirmative Defense, Do You Qualify?



Think you're in the clear to rely on just a certification or recommendation and employ the affirmative defense after the recent Sup Ct opinions in King and Kolanek? Thing again!


If that is your plan, to rely on your certification or recommendation, then you may be in for some trouble and a rude awakening. So let's clear this up so you make an informed decision.


First off, if you don't have a card and are relying on your certification only then plan on being arrested. Plan on spending up to 48 hours in jail before be arraigned and bond being set. Then plan on either getting a court appointed attorney or spending a lot on a retained attorney.


Then what? Well, if it's a felony you're charged with, then expect to go to your preliminary examination. If the judge there will hear your aff def then maybe s/he will dismiss the case. But maybe not. If not, then plan on going to circuit court. It is there that your attorney will file and argue the aff def. Expect to either subpoena your doctor to testify (and tinkle him off) or expect to pay him as an expert witness. Also expect to be able to prove that you needed x ounces (or plants) to ensure a continuing supply.


Lastly, and most importantly, be prepared for proving the heightened requirements of the sec 8 defense. Keep in mind that the administrative rules require less of a Dr for the certification than sec 8 requires for an aff. def. What does that mean? It means that you could end up in circuit court with a signed cert or card and still be convicted.


The administrative rules state:


(22) “Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.


That written certification is what is needed for a card under section 4.


On the other hand, Section 8 requires:


(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;


So section 8 requires a full assessment of the patient's history whereas the rules don't require that for a card. Section 8 also requires the bona fide dr/pt relationship but that seems a foregone conclusion if a dr signs the certification.


At any rate a bare bones section 4 certification probably isn't adequate to cover for a section 8 defense. So if you have your card and are relying on that, or a recommendation or certification, make darn sure that your Dr made a full assessment of your history. In other words, a few months of medical records may be adequate for a card but not so much for a sec 8 defense.


So what does all this mean? It means you should make sure you get that full assessment of your history and make sure you have a bona fide relationship (don't buy a cert. from the back of an appliance store!)


Lastly, to qualify all of this, I will concede that sec 4f requires the same thing as sec 8 in order for a doctor to be immune from prosecution but those elements in sec 8 are not all required to get the card anywhere else. So, a doc may lose his immunity from prosecution for not conducting a full assessment of your history BUT that doesn't mean you wouldn't be entitled to a card. In other words there is a hypothetical situation where a doc could certify you and you get your card and your card is valid but the doc isn't immune from prosecution.


The point here is don't be tricked into thinking you are safe and able to utilize sec 8 just because you have a card or a cert. I can easily see this being the next bone that the prosecutors pick if we start seeing sec 8 defenses!


Lastly, don't be naive and think that you can scream sec 8 and the prosecutors will drop everything. I personally have seen prosecutors continue to pursue cases that were bound to be dismissed due to constitutional violations. They won't come out and say it but I think it is clear that they feel if they make the defendant pay through the nose to the atty by drawing out the case then that is punishment in itself even if the case is later dismissed.


There is more to sec 8 than the issues presented here but you need to be mindful of the presented issues in particular. Will prosecutors accept the card or a cert or recommendation as fulfilling the medical and dr requirements of sec 8? Maybe. In fact I'm sure a lot would but don't be the one fighting this exact issue and left holding the bag for 3 years as it is appealed up to the Sup Ct.


If you have your card and think it wouldn't hurt to grow 2 more plants and expect your card will cover for you in regard to the medical requirements of sec 8 then at least be sure you have covered yourself in regard to ALL of the elements required in sec 8.


All members of this site or anyone looking in seeking advice should spend some quality time reading the following materials in depth:


1) The Supreme Court decisions

2) The ballot language

3) Sections 7 and 8 of the Act


Rather than reading them to develop arguments to defend what you are doing as legal, read them instead in a naive way, or even in a prejudiced way. If you are in compliance with a naive reading of the law, and are erroneously arrested, you will have a great case in court if you also stay silent during the arrest. If you intend to depend on section 8 to defend yourself in court should the unthinkable happen, make sure that you understand how law enforcement and the courts will read it.


These are basic parameters for staying safe and responsible to the community for more than 90% of participants. Those who have an attorney on retainer should be strictly adhering to the interpretation of their attorney, especially if the intent is to lean on the protections contained within section 8, which at this point REQUIRE ARREST AND PROSECUTION to invoke.



Source: If You May Need To Rely On The Affirmative Defense Just Be Sure You Qualify First.


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