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Found 9 results

  1. Komorn Law, PLLC and Attorney Allen Peisner are proud to report the well-deserved dismissal of all marihuana charges for a young man and his family. We are proud about this one for many reasons. It is well understood that this jurisdiction (Clarkston - in the heart of Oakland County) is not known to be friendly to medical marijuana patients. In fact, in this venue at the arraignment, this particular Judge as a matter of practice tells the presumptively innocent patient that they must decide if they want to use their medicine or drive. They can’t do both. Of course, this defies most if not all principles of Michigan jurisprudence. Nevertheless, when he was forced to choose, my client chose his medicine. Of course, to get to work without a driver’s license my client has to ride his bike, which requires him to ingest medicine more frequently than before the Court had imposed the no driving condition. My client was a medical marihuana patient and had received his recommendation from his physician in December 2016, but had not yet sent his application to the State. In other words he didn’t have his registry card at the time of the incident. The backdrop here involved a traffic stop in early 2017. The officer claimed he smelled marihuana; later when searching the vehicle he found two ounces in the locked glove box. The client made a few utterances (always best to not say anything at all) at the roadside, all consistent with his assertion that he was a patient and was intending to use it medical, and ingest it at some other time. After a few pretrials, adjournments, and some administrative hurdles the matter got set for our evidentiary hearing pursuant to section 8 (See People v King/Kolanek). As it should be, the explanation of the three prongs was required to be established at the hearing (in short: 1. Bona fide Physician/Patient Relationship, 2. The amount of marihuana was reasonable and necessary. 3. The marihuana was for the patient’s medical use) was presented with confidence and detail. As I often suggest to patients prior to testifying, the topic of inquiry is something that no one knows better than you, the patient. No one other than you really knows or understands your medical condition better. The medical efficacy of cannabis to treat that condition likewise is information unique to each patient. With that being said, my client’s testimony was more than compelling. In 2008, over 3 million Michigan voters, enacted the MMMA, and amongst other declarations, they stated cannabis is medicine. As often overlooked, it was intended to be just that - a medicine that amongst other things is intended to treat a long list of serious medical conditions, one of which is chronic pain. My client’s story begins with walking onto the MSU track team and competing at a Big Ten collegiate level for his first three years, before being cut from the team in the last part of his junior year because of a muscle tear in his hip. All things bad happen to runners when this muscle tears, including limited range of motion and severe pain. Prior to his leaving the team, he was given access to the very best of medical treatments from all this Big Ten school’s trainers and doctors could offer. This included daily rehabilitation, and muscle relaxers and pain medications. His other option was to have surgery, which according to his physician was not recommended because of his age. While he did get some relief from the daily rehab during the summer, this became an impossible treatment when he returned for his senior year, and had a full load of classes. With his collegiate athletic career behind him, he had resolved to direct all of his energies into his senior year with his eyes on graduate school. Despite additional free time from no track practice, travel to meets etc., the pain from his hip was not going away. For these reasons, he explained “I wanted to explore medical cannabis to treat my hip problem, because nothing else was working. The simple task of walking to class had now become a painstaking task that was challenging on a day to day basis.” There is little that can be said about his testimony other than it was real. Of course, on cross exam, he had to put up with silly challenges and questions with no substance but an intention to try to confuse or take advantage of the novelty of testifying in court for the first time. The only disappointing aspect of the case was that I had to restrain my anger in responding to the Assistant Prosecutor’s argument that the physician didn’t testify, and it is only through that testimony can a patient establish what is an amount reasonably necessary. Neither of these arguments are true, as outlined in the most recent Michigan Supreme Court case People v Hartwick/Tuttle. I saved the argument, “Judge I want to remind the Court that my client is currently on bond, and has been authorized by this Court to use medical cannabis as one of his conditions of bond, I would argue in conjunction with the testimony, you should dismiss the charges, or at a minimum let us argue the affirmative defense to the jury.“ In short order, and shall I say surprisingly, the Court quickly shut down the APA’s misplaced arguments about the law regarding section 8. Despite what I thought was more than enough evidence to dismiss the Court found that the evidence established that we could present the affirmative defense to the jury. A brief bench conference ensued and talks of permission from supervisors in the APA’s office, and we were given a pretrial return date – to set a trial date. Today at that pretrial the APA informed us that they would dismiss the case with prejudice. To say it is was a waste of resources – to be required to go this far to establish the evidence that we did – would be an understatement. With the opioid epidemic that plagues Michigan and the County, how can this endeavor be justified? To even the most anti-cannabis crusader, wouldn’t the dollars needed to keep this case going be better spent testing the untested rape kits that remain in the thousands all of over Michigan? Does it still make sense to anyone that the State of Michigan utilizes 40% its Forensic Science Division’s budget testing marihuana? That the same 40% or greater of marihuana cases make up the docket in Courtrooms all over the State of Michigan. Could it ever make sense to anyone that this scenario would somehow justify my client being denied admission to post graduate education or acquiring the professional license that he had spent most of his adult life committed to? Attorney Peisner’s involvement was stellar as expected, and his performance in keeping the fight going was pivotal. Thank you, Allen It was an honor to represent my client, and his family. Today was a good day, the broken system produced an excellent result, the MMMA worked and for a few moments, albeit fleeting, justice was served.
  2. Yesterday Komorn Law, on behalf of the MMMA, filed the attached Amicus Briefs with the Michigan Supreme Court for the cases People v Hartwick and People v Tuttle. Oral arguments will be held Thursday. We want to acknowledge the tireless efforts of all the contributors who worked diligently in this endeavor. Specifically from the MMMA, Highlander and t-pain contributed great material, research, and arguments. We truly thank all the participants on the forum whose contributions helped develop many of the ideas and arguments we wanted to advance. Jeff Frazier, prose artist, Galapagos guitarist, and attorney extraordinaire, drafted much of the brief. He is and was brilliant at incorporating and articulating many of the big ideas we discuss and complain about every day into rational and persuasive prose. ("One Word - probable cause.") ("One Word - Brilliant!") Also to the clients of Komorn Law (and all the patients, caregivers, and others who have been arrested instead of protected from arrest), and despite the unfortunate circumstances we experienced together, your cases are the (our) motivation. Also we want to acknowledge the hard work and dedication of CPU: Hayduke, Malamute, and especially attorney Dan Grow, whose collaboration created a strategic opportunity to address the issues from multiple positions. Also it should be noted that this project may not have been completed if not for the extraordinary effort, by zapatosunidos (Chad). He was outstanding at managing and overseeing this project and made certain these briefs were finished and filed on behalf of the MMMA. But for his commitment the project would not have been completed. (Also, any grammar or spelling mistakes please complain to Chad.) Tuttle Br. Amicus Curiae.pdf Hartwick Br. Amicus Curiae.pdf
  3. http://www.nicholslawyers.com/In-The-News/ID/2496/categoryId/144/Medical-Marijuana-Caregiver-Has-Charges-Dismissed-After-Motion-To-Present-An-Affirmative-Defense-Is-Argued Attorney Joshua M. Covert of the Nichols Law recently represented a client who was charged with two felonies involving marijuana. The client was a medical marijuana patient and a caregiver to 3 other patients. Despite being registered with the state as a patient and as a caregiver, the client’s home was raided pursuant to a search warrant issued by a Kent County Judge. Mr. Covert met with the client and discussed the protections provided to her by the Michigan Medical Marijuana Act (MMMA). Mr. Covert as an attorney who devotes a large part of his practice to defending patients and caregivers knew that after listening to the client tell her story that she would have a good chance of asserting the affirmative defense as outlined in section 8 of the MMMA. An affirmative defense under the MMMA requires the defendant to prove that there was a bona fide patient-physician relationship for each patient, that there was no more medicine than reasonably necessary to prevent an uninterrupted supply, and that the marijuana was for medicinal use. Mr. Covert then filed a motion and brief outlining his client’s defense and proceeded to hold an evidentiary hearing to determine if the affirmative defense would be available to his client and to determine if a dismissal was appropriate. At the start of the second day of the hearing Mr. Covert and the prosecuting attorney discussed the possibility of agreeing to certain facts. By the time the discussion had completed Mr. Covert and the prosecuting attorney were able to agree on the facts necessary for a dismissal under section 8. “The outcome of this case illustrates why it is important to MMMA patients and caregivers to stand up for their rights as cardholders, my client had been offered many plea offers during the process but every time she stood firm and refused to admit that she did anything to violate the MMMA and ultimately after several months her case was dismissed weeks before trial” says attorney Covert. If you are a patient or caregiver under the MMMA and facing criminal charges, call the Nichols Law Firm at 517-432-9000 and speak with attorneys who are familiar with the defenses under the MMMA. interesting stuff. dont take a plea!
  4. FACTS Client charged with Possession with Intent to deliver 5-45 Kilograms of Marijuana-7 year felony, and Maintaining a Drug Vehicle- 2 year felony. Client pulled over for speeding, police report said officer could smell marihuana while following the vehicle. Once at the driver’s window, officer noticed 6 totes in the back of the vehicle. Client asked to step from vehicle, which he did, and then proceeded to lock car with key fab and declare I do not consent to a search right out of the “know your rights” video. Much discussion about plants, lawfulness, cards, unusable material, where are you going etc.. At one point the client’s patient showed up at the scene of the stop and offered paperwork and cards, not in possession of the driver, which were of no interest to the officer. Client was arrested, and arraigned a few days later. One of the memorable quotes from the case was when I tried to explain to the detective/OIC that the material confiscated were recently cut plants and not usable material, to which this 30 year police veteran exclaimed " what did you expect me to do let him go? He was of course referring to the weight of the 23 freshly cut plants that had been found in the totes which weighed 14 lbs. The Preliminary exam was conducted over several days. At one point the prosecutor asked for an adjournment to consider if they wanted to trim and dry the material, to get an accurate weight. I responded that this would be the first time the government manipulated evidence to meet its theory of guilt and asked for precedent on this issue. The prosecutor could not produce any and ultimate chose not to meddle with the evidence. DISTRICT COURT’S FINDINGS OF FACT At the preliminary examination, the Court made a finding of fact that on the day in question client was in fact a registered medical marihuana patient and a registered caregiver for five patients and was in possession of valid registry identification cards. All of the registry cards were admitted into evidence. As such, the court found that client was authorized to possess up to 72 medical marihuana plants and up to 15 ounces of usable medical marihuana. The Court found that the marihuana found in clients car was 23 freshly cut marihuana plants. The court further found that the freshly cut plants were wet and not dried. Although the Court found the freshly cut plants weighted a total of 14 pounds, the Court expressly found that the marihuana plants were not usable marihuana. Additionally, the Court found that there was no evidence that client ever actually sold marihuana since no large amounts of money were found. DISTRICT COURT’S RULINGS OF LAW AT PRELIMINARY EXAMINATION At the close of evidence, the People moved to bindover the client on the charges of Possession with Intent to deliver 5-45 Kilograms of Marijuana and Maintaining a Drug Vehicle. I objected to the bindover based the fact that client, as a medical marihuana patient and caregiver, is protected by Section 4 of the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26424, and is immune from prosecution. I argued that no evidence had been presented to show that my client had more than 2.5 ounces of usable material. The District Court, in its oral opinion, determined that the main issue is whether the client’s possession of the 23 freshly cut marihuana plants, totaling about 14 pounds of wet marihuana, was legal per Section 4 of the MMMA, considering that client is a registered medical marihuana patient and a registered caregiver for 5 patients. The court first analyzed Section 4 (b) of the MMMA, MCL 333.2604(b), and stated that the Section provides that: A primary caregiver who has been issued and possess a registry identification card, shall not be subject to arrest, prosecution or penalty in any manner or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marijuana in accordance with this act, provided that the primary caregiver possesses an amount of marijuana that does not exceed [(1)]2.5 ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department’s registration process and, [(2)], for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marijuana for the qualifying patient 12 marijuana plants kept in an enclosed locked facility. The court went on to state that it is clear from the testimony that client had his own medical marihuana patient registry card and had caregiver registry cards for five patients. Thus, the court ruled that if client had less that 15 ounces of usable marihuana and less than 72 marihuana plants, his possession of the marihuana would be legal and he would be immune from prosecution. The court held that since the marihuana involved in this case were cut plants, they are not considered plants for purposes of Section 4 immunity. The court determined that the ultimate issue in this case is whether the marihuana that client possessed was “usable” for purposes of Section 4 immunity, and if not, what effect “unusable” marihuana has on Section 4 immunity. The court referred to MMMA Section 4 (j), MCL 333.26423(j), for a definition of useable marihuana, and stated that “usable marijuana means the dried leaves and flowers of the marijuana plant and any mixture or preparation thereof but does not include the seeds, stalks, and roots of the plant.” The court also referred to the general definition of marijuana contained in the Public Health Code under MCL 333.7106, and stated that “[m]arijuana means all parts of the plant, cannabis sativa L, growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.” Based on the District Court’s reading and interpretation of Section 4, the MMMA’s definition of usable material, and the general definition of marijuana contained in the public health code, the court ruled that Section 4 of the MMMA only protects patients and caregivers who possess actual marihuana “plants” and/or patients and caregivers who possess “usable” marijuana. The court ruled that “unusable” marihuana is not protected by Section 4 of the MMMA; thus, patients and caregivers who possess unusable are subject to prosecution under the public health code. Applying the facts of the case to its interpretation of the MMMA, the District Court ruled that the marihuana possessed by client “was all wet marijuana, none of which was usable under the statute. . . If it would have been usable marijuana that did not exceed 15 ounces, there would be immunity. But the court is of the opinion that [since it was unusable] the Defendant did not enjoy the immunity provided by section four.” To clarify its ruling, the Court stated that “ecause it was wet, it was not usable marijuana. I find none of it was usable . . . and I find that the individual does not have immunity if they are transporting or in possession of nonusable marijuana, irrespective of the card.” Thus, since client was in possession of marijuana that was wet and unusable, the District Court bound client over on count 1 Possession with Intent to deliver 5-45 Kilograms of Marijuana but dismissed count 2 Maintaining a Drug Vehicle. CIRCUIT COURT MOTIONS AND HEARINGS We drew The Honorable Judge Hayman in the Genesee Circuit Court, while in Circuit court we filed a motion to quash the bindover, as well as another section 4 motion and a section 8 motion. The motion hearing resulted in a denial of the motion to quash and denial of the motion for dismissal pursuant to section 4, in a prepared written ruling the Judge read from the Bench. He did not let us argue orally at the motion hearing, but did ask if we had anything to add other than what was asserted in our pleadings. I offered the Court the recent amendment to the MPC, 4856, suggesting that this recent legislative enactment supported my position that usable material was protected within section 4, and not excluded, and gave him a copy of it at the bench. His ruling on the motions really did not address the issues I laid out in my pleadings but he did he did reference several time that the amount of 14 pounds of marihuana was not and could not be what was intended in the voter initiative MMMA. Prior to our scheduled return for the Section 8 evidentiary hearing, I debated with the prosecutor via email on several occasions, what would be required at the section 8 hearing. My impressions after the motion hearing on the Section 4 immunity, were that the Judge would have a difficult time moving his focus off the 14 pound number and that the best we would do after the section 8 hearing would be to create a question of fact on the three prongs of section 8, and then take our medical defense to a jury, who I have always believed and continue to maintain will be the best audience for positive outcomes in these cases. I had actually one point concluded in my own mind that it would be silly to have a section 8 hearing and instead suggested to the prosecutor that we just stipulate that a question of fact existed for purposes of the section 8 hearing and move on and pick a jury. Prosecutor “I have been running around all day but have had an opportunity to look at some of the MMMA stuff. The more I read and understand, the more I realize we will have to have a Section 8 hearing before the trial. Case law seems pretty concrete that if you want to assert that as a defense, we need to have that evidentiary hearing beforehand. Also, I know we spoke about some different things with your doctor testifying and I really believe he needs to be in court.” Komorn I agree that the law is clear on this issue. An evidentiary hearing regarding section 8 has to take place prior to the jury trial and an affirmative defense regarding the MMMA. I would note that the law is also very clear on the evaluation of the evidence or the threshold that needs to be met by the defense to assert such a defense is “weather a question of fact exists on each of the three elements of section 8. People v. Anderson is the controlling case on this: http://publicdocs.co...300641o.opn.pdf “The trial court also erred by assessing the weight and credibility to be given Anderson’s evidence and by resolving any factual disputes. Kolanek, 491 Mich at 411. The trial court’s sole function at the hearing was to assess the evidence to determine whether, as a matter of law, Anderson presented sufficient evidence to establish a prima facie defense under § 8 and, if he did, whether there were any material factual disputes on the elements of that defense that must be resolved by the jury. Id. at 412-413. Further the case law is pretty well established in People v. Kiel http://publicdocs.co..._301427.opn.pdf In this case the courts states that the cards suffice as prima fascia evidence of prong 1 and 3. “At the evidentiary hearing, defendant testified that he was not only a medical marijuana user, but he was also a medical marijuana caregiver for himself, plus four other people. To support his testimony regarding the first element and third element, he offered into evidence various medical marijuana IDs of himself, Hublick, Geyer, Ehl, and his son, Dusty. Defendant also submitted two caregiver attestations, one each for Hublick and Dusty that were each dated July 24, 2009. The fact that these individuals were registered with the state as medical marijuana users is prima facie evidence of the first and third elements. The facts are uncontested that my client had 4 valid cards at the time of the offense, 3 for being a caregiver and 1 as a patient. The only issue that remains is prong 2 of section 8 “(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 debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; The Anderson case seems to dictate and by definition “Reasonableness” makes prong 2 a question of fact for a jury. My suggestion of stipulating that a question of fact exists in this case was made because, it would seem silly to go through the section 8 hearing when there seems to be no genuine dispute that a question of fact exists. Or said another way the facts of this case create a question of fact. If you think otherwise please explain what your support for that would be. In fact the law as outlined in Anderson suggests that that upon a showing of some evidence on each of three prongs of section 8, would entitle the accused to a medical marihuana defense. My suggestion to stipulate to this was based upon the above facts presented to you as an offer of proof, and an attempt to not waste time or resources arguing about issues that are resolved by a standard of proof of “a question of fact.” The remedy for the accused who is denied the right to present a defense per P v. King/Kolenik, is an interlocutory appeal, which would be our intent in the event of an adverse ruling regarding a mm defense. Nonetheless if you want to go forward with the section 8 hearing I will be ready to do this. I should have an affidavit from the Doctor regarding my client and his patient status tomorrow morning. As I discussed with you, the certifying Dr. for my client has indicated that he is disabled and appearing live in Court is going to be very challenging to him, despite him being ordered to be in court to testify. At this time I have told him he is on standby. Thanks for your attention in this matter, please let me know if you have any questions or comments. Prosecutor After speaking with my boss, we have determined that since the judge will not let your Doctor call in, he is going to need to be there. Komorn I specifically recall the Judge saying that we should depose the Doctor. Ask your Boss when a good time to do this will be. I know we are supposed to go back on Friday, and my schedule is tight, but I will try to assist in getting this done. I don’t recall any ruling or order saying that my Dr. had to be there, and in light of P v. Kiel, and really no offer of proof by the People as to why he would need to be there, the statement “he is going to need to be there” seems to be nothing but harassment of medical marihuana Dr.’s, patients and caregivers. The Judge only said that the Dr. couldn’t call in on the phone, because of the difficulty of getting the conversation into the formal record. He never said that the Doctor had to be there. Furthermore, I provided you with the full medical records of my client and an affidavit from the Doctor, what more could the prosecutor ask of the Dr on the issues related to prong 1 of section 8. Prong 1 of section 8 requires that (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; The signed certification, which you are now in possession of, has a signature below a statement, by a physician as defined in the law, that (he) certifies that He is physician licensed to practice in the state of Michigan. That he has the responsibility for the care and treatment for the above mentioned patient. That it is his professional opinion that the applicant has been diagnosed with a debilitating medical condition as indicated above ( severe and chronic pain). That the medical use of marihuana is likely to be palliative or provide therapeutic benefits for the symptoms or effects of applicants condition.. This is not a prescription for the use of medical marihuana. Additionally if the patient ceases to suffer from the above identified debilitating condition, I hereby certify I will notify the department in writing. Additionally you have a 16 paragraph affidavit outlining more statements by the doctor related to his decision to certify my client. All of this begs the question of what is the issue you contest in this regard. Can you assert an actual offer of proof ? What is your legal response to the P v. Kiel case other than you disagree with it, and instead have a different personal and subjective statutory interpretation? Prosecutor Judge Hayman will have some questions for the doctor as well. Komorn How do you know this? I didn’t hear the Judge refer to the need to question the Doctor, and further more if the Doctor says the exact same things he says in the certification and the affidavit, as a matter of law a question of fact has been created. Or do you mean that your Boss will have some questions? If so what bearing do those questions have on the limited issue of prong 1 of section 8. Prosecutor I know this puts you in a tough position but hopefully it can be quick and get him in and out fairly painlessly. Komorn I don’t know that the Doctor will even be available Friday. In my past conversations with him, it had been indicated that his best day if any would be Monday’s. I agreed to the Friday date upon the premise that the affidavit would suffice. Only after we received that date, a date I am pretty certain the Dr. is not available did I learn that you do not acknowledge the affidavit, the certification document of Dr. Shaw and 2 other Dr. Licensed to practice in Michigan and my client’s medical records. If the Court is inclined to move the hearing to this Monday instead of Friday I may be able to get him there, but again, why and for what specific reason, other than to have him repeat the exact same items that have already been provided to you. Demand for Discovery Pursuant to our ongoing demand for discovery in this case: Please provide to me the “relevant supporting data” for the Forensic Scientist Elaine Dougherty that she refers to in her report. Specifically the error rate for the weighing of the material. Thanks for your attention in this matter, please let me know if you have any questions or comments. We had been ordered to return for our hearing on a Friday, the doctor was not available but said he could be available on Monday if needed. When the hearing commenced the Court asked of any preliminary issues, to which the above email conversations were reiterated on the record. I argued that pursuant to Kiel, we had established a prima fascia showing of prong 1 and 3 with the cards, and the only issue that remained was prong 2 the reasonable amount. The prosecutor essentially offered no response in Court to my arguments, and in fact agreed with my interpretation of Kiel. The Honorable Jude Hayman then concluded he agreed with the parties reading of Kiel, and stated after reading Kiel and Anderson, “I find that prong 1 and 3 have been satisfied.” He then went on to say that I agree the only issue that remains is prong 2, and the way I am reading it seems to be: that if the defendant provides evidence of the quantity being a reasonable amount, I must dismiss the charges absent a showing of evidence to the contrary that creates a question of fact. Clearly this was the absolute best interpretation I had heard of section 8, and I had no interest in arguing with this interpretation, I also knew that the prosecutor was not planning on calling any witnesses at this hearing. Suggesting to me that the game was over at this time and everything else was just going through the motions. Section 8 Hearing I called one of my clients patients, she was also the mother of one of my clients other patients. She gave very compelling and detailed testimony of her medical conditions, lack of relief from other traditional treatments and that the honey oil/ Simpson oil that my client was making for her was the only medicine that worked for her. She testified she had been on a 1 gram a day dosing, ½ gram in the morning sativa, and ½ gram in the evening indica. She explained that the prior 2 harvests before the raid, she and my client had a method to the making of the medicine. He would take 12 freshly cut plants to her house, leave them there to dry and be trimmed by the patient. He would return a few weeks later and process the useable material, flower/bud into the honey oil/Simpson oil. When she got off the stand, Judge Hayman said to her “Mam you are a beautiful person, and I am going to pray for you and your family.” I could tell he was moved by her testimony and courage to share the very personal and intimate medical issues she had experienced. When we returned this past Friday we continued with the hearing, I called my client, who explained his own medical conditions, and his history of growing for himself, and then when he became a caregiver. I had him go into elaborate detail of his growing techniques and procedures. We discussed projected yield of his plants from his past experience ( although it is not a science), and the amount of usable material he would need to process in order to provide a 30/60/90 day supply of the honey oil/Simpson oil for his patients. He went on to explain what his intentions were on the day of the arrest. How his plan was the same as it had been in the past few harvests, and what he specifically planned to do with the 23 freshly cut plants. Judge Hayman seemed to be impressed with my client’s testimony. He was amazed with the care and concern my client took in the preparation of the material to ensure it was clean and the steps he took to ensure the final processed material left with the patient was not more than allowed pursuant to section 4. He commented on how he did not know that the fan leafs of the plant were not what was considered valuable from the plant. “Every time I see pictures of a marihuana grow, I always say wow look at all those leaves. I didn’t know the leaves of the plant were not desirable.” He even joked that if he was dropped in a field of marihuana and was told to grab what he could he would have grabbed all the wrong parts of the plant. I must compliment Judge Hayman (and his staff) who seemed very prepared and focused on the issues presented at the section 8 hearing. After my client stepped down, we offered our closing remarks and the Court made a finding that we had satisfied all the elements of section 8 and thus we were entitled to dismissal of the charges. Michael A. Komorn Attorney and Counselor Law Office of Michael A. Komorn 3000 Town Center, Suite, 1800 Southfield, MI 48075 800-656-3557 (Toll Free) 248-351-2200 (Office) 248-357-2550 (Phone) (855) 456-6676: (Fax) Email: michael@komornlaw.com Website: www.komornlaw.com Check out our Radio show: http://www.blogtalkr...lanetgreentrees CALL IN NUMBER: (347) 326-9626 Live Every Thursday 8-10:00p.m. PLANET GREENTREES w/ Attorney Michael Komorn The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD. Attorney Michael Komorn’ practice specializes in Medical Marihuana representation. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marihuana patients, and caregiver rights. He is also an experienced defense attorney successfully representing many wrongfully accused medical marihuana patients and caregivers
  5. @KomornLawMI# Planet Green Trees-The Battle In Bad Axe- a story of perseverance, Love, and A** Kicking-http://www.blogtalkradio.com/planetgreentrees/2013/03/29/planet-green-trees-episode-141-the-battle-in-bad-axe March 28, 2013 -13473269626 dial 1 to get on the air Hosted By: Attorney Michael Komorn/ Komorn Law PLLC 18006553557 SHOW TOPIC: The Battle In Bad Axe In what was one of the biggest news stories in 2009, Ellis claimed he had done nothing wrong after local police raided his home. A card-carrying registered caregiver licensed to give patients medical marijuana, Ellis felt he deserves protection under the Michigan Medical Marihuana Act. We plan to talk about this case, relish the victory and memorialize the victory for our community, for Jeff and Susan Ellis- may she rest in peace. SPECIAL IN STUDIO GUEST:Attorney David Rudoi, will be live in the Studio to discuss 3 new COA cases addressing the MMMA, and offer his thoughts and commentary: people-v-dehko/people-v-christner/people-v-mccleese CALL IN GUEST: ASA Announces New Michigan Chapter: Special Guest Hunter Holliman ASA National Representative will join us to discuss the recent announcement of the New Michigan ASA Chapter and the local activists participating. Possible call ins from those activists: Brandi Zink chair of the Michigan Chapter Brought to you by: Our Regular Group of Community Entertainment. Your host: Attorney Michael Komorn of Komorn Law, PLLC-18006563557 Regular guests: Chad from the Birmingham Compassion Club, Jamie Lowell of Third Coast Compassion Center, Rick Thompson-Editor and Chief of the Compassion Chronicles- reporting on news events, Canna-Miracles our very own Gold Cup Winner. Thanks to Purnell Jameson and Greg Pawlowski for producing tonight’s show. Tonight's Show Sponsored By: MMMA: michiganmedicalmarijuana.org Thanks to all the moderators especially Q tipper! Komorn Law - Atty Michael Komorn (800) 656-3557- The Med Joint Community Compassion Center - Oshtemo, MI Kevin Spitler
  6. February 21, 2013 8-10 p.m. 13473269626 dial 1 to get on the air SHOW TOPIC: Section 8 Does work and other Stories from the Theater of war. Komorn Law PLLC, I am proud to report on a few recent victories showing in fact that the system can work. P v. Johnson 14 lbs case dismissed after section 8 hearing. P v. Pointer the long road is finally over after the United States Supreme Court ruling impacts this 2009 case that has been bouncing around in the Michigan Appellate courts. P v. Mcneil - section 8 hearing results in a a question of fact and the defendant being able to present a medical marihuana defense to the jury. Special Guest Tonight : John Targowski of Targowski and Grow will be calling in to add his comments and thoughts on how the Courts are treating patients and caregivers. Hosted by Attorney Michael Komorn of Komorn Law, PLLC. Brought to you by: Our Regular Group of Community Entertainment. Your host: Attorney Michael Komorn of Komorn Law, PLLC-18006563557 Regular guests: Chad from the Birmingham Compassion Club, Jamie Lowell of Third Coast Compassion Center, Rick Thompson-Editor and Chief of the Compassion Chronicles- reporting on news events, Canna-Miracles our very own Gold Cup Winner. Thanks to Purnell Jameson and Greg Pawlowski for producing tonight’s show. Tonight's Show Sponsored By: MMMA: michiganmedicalmarijuana.org Thanks to all the moderators especially Q tipper! Komorn Law - Atty Michael Komorn (800) 656-3557- The Med Joint Community Compassion Center - Oshtemo, MI Kevin Spitler http://www.blogtalkradio.com/planetgreentrees/2013/02/22/planet-green-trees-episode-136-14-lbs-section-8-defense
  7. Simple as 1,2,3 - Will be the new policy for the MMMA forums So much ado has been made at our attempt to provide a reasonable policy for posting on the forums. Much debate has been had amongst the moderator staff and on the forums amongst our members. As is often the case and even more so on the Internet, communication and semantics are critical when trying to develop a consistent but clear policy regarding the Act that can be enforced easily and without issue. The unambiguous policy to date has created some confusion when its intent was just the opposite. Additionally and without merit many of the moderators have been under attack for attempting to enforce a policy that is designed only to protect patients from arrest, prosecution or penalty. The reference to Nazis is offensive and reflects an absolute lack of knowledge of history, common sense, and humanity. The comparison of anything the moderators do on this site to the devastation the Nazis did in world history is blatant ignorance. Let it be stated now, and made very clear that the MMMA does not believe that the proper interpretation of the law would prohibit any of the behavior that may fall into the so called ambiguous zone. The MMMA believes that the Act should be interpreted liberally, and with the sole purpose of protecting patients and caregivers. Further the MMMA does not believe that dispensaries, farmers markets, any registered caregiver transfers to any registered patient or patient to patient transfers are unlawful. In fact the MMMA believes and acknowledges that all of these acts and behaviors are critical and essential for the medical cannabis community to survive and flourish. Why then would the MMMA attempt to create a policy that purports to limit this behavior? The answer is simple, we are not! What are we trying to do then? The MMMA is simply trying to provide advice and direction for patients and caregivers to avoid arrest, and be forced to defend themselves in court. It is that simple. Perhaps as simple as 1, 2, 3. Simple as 1, 2, 3 will be the new policy for the MMMA forums. The behavior of patients and caregivers will be and should be assessed by a ranking of risk and liability scored by Level 1 risk, Level 2 risk, and Level 3 risk. Ask yourself the following question: is there a consistent and unequivocal interpretation of the behavior by patients and caregivers that LEO would agree is lawful? Said another way, would the behavior in question result in an arrest if you asked all LEO statewide? The focus here is not what the MMMA wants; the focus here is not what the MMMA believes the proper interpretation of the act should be. The focus here is not what LEO in your local community says is lawful. Instead the operative question is how do all Leo state wide interpret the act and what do they believe is unlawful behavior? Is there a consistent and unequivocal interpretation of the behavior by patients and caregivers that LEO would agree is lawful? If the answer is yes you are in a Level 1 Risk category and should be protected against arrest, prosecution, or any penalty. All other behavior outside of this definition falls into Level 2 and 3 risk categories. Level 2 and 3 behavior is not unlawful per se, but is behavior that may subject you to a higher risk or liability of arrest. The key here is that the MMMA is not calling this behavior unlawful. The Level 2 and 3 behavior however is behavior which may not without equivocation protect you from arrest, prosecution, or any penalty, although the MMMA believes it should. Those seeking information and guidance from our site need to know that your protections do not include immunity from arrest. Instead your protections will come via the affirmative defense set out in section 8 of the Act. For those that are not aware, the Act is set up with 2 different levels of protection. There is a section 4 protection which is immunity from arrest prosecution or any penalty. Immunity means that after interacting with LEO, you are released without incident, no arrest takes place, medicine, money, and property is not confiscated. You are not handed an "intent to forfeit" document that requires you to post bond for your property. Immunity means you go home; you kiss your significant other on the lips when you get home and you thank the stars above that you are sleeping in your own bed instead of the concrete floor of the local county jail. Then there is a section 8 protection, which is an affirmative defense. These protections are as real and as important as the protections of section 4, but they occur in a completely different environment that is important to distinguish. The section 8 affirmative defense will take place in Court, before a Judge at an evidentiary hearing (first). This game will start with you waking up from the concrete floor of the county jail. It will include eating bologna sandwiches for breakfast, the mustard jar will have something that looks like an infection growing on of the top. It will have been at least 24 hours since you spoke to your family (72 hours is the maximum), and the return to your normal life will not yet begin until you post bond, get your car out of the lot, which will cost you at least $1000. Then you will have approximately 15 days to post bond on the forfeiture case. This amount is usually 10% of the total value of the property seized. Consider the forfeiture matter a second case, one that will put the burden on you to establish that the items sought to be forfeited were acquired through lawfully earned funds. Lawfully earned funds could be a definition that is in controversy in your forfeiture case. After the arraignment in your criminal case, usually done by video while you remain in the jail cell, you will be on bond. The conditions will likely include no use of medical cannabis while on bond. You will have to hire an attorney or rely upon the experience of the local court appointed attorney's knowledge of the MMMA. After many months of your case pending and when you find yourself at your evidentiary hearing for your section 8 defense much ado will be made about your bona fide relationship with your certifying doctor. "Is my doctor willing to come to court?" is a good question to ask yourself when engaging in Level 2 and 3 behaviors. Remember if your doctor is not your treating physician, in some jurisdictions you may fail to establish the first prong of section 8. Although the MMMA believes this is wrong, this is how it has played out in many jurisdictions. Awareness of these distinctions is all that is being sought by the MMMA. The point here is that the different levels of protection between section 4 and section 8 are significant; with the most important factor being one protects you from arrest (Section 4) while the other (Section 8) protects you from conviction in court. The previous policy and guidance provided on the forums for our members has merely embraced a policy to avoid arrest, or Level 1 risk behavior. Moving forward the key factor that will and should be expressed will be to point out and make known what behavior falls into the category that is a Level 1 risk that protects you from arrest, prosecution and any penalty versus what behavior is a Level 2 or 3 risk that offers its protections pursuant to section 8 in court. No one at the MMMA wants to be responsible for advising behavior that results in a patient or caregiver being arrested. Likewise no one at the MMMA believes patients or caregivers should be arrested. But we are living in a time when the Peoples' law has yet to be implemented as it was intended. There remain many different interpretations throughout the state that are not consistent or absolutely clear, to the extent that all LEO would agree. For example see the twisted interpretation of Court of Appeals cases from the "Legal Updates at the Michigan State Police," website regarding medical marihuana.** Please note that the MMMA disagrees with these interpretations, but would be acting neglectful if we did not point out these simple facts for our community. We are not taking responsibility for how LEO currently thinks, we disagree with it and have been and will continue to try to change how they think. In the meantime, we are simply reporting it for the benefit and protection of the medical cannabis community. ** http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._99_390580_7.pdf http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._96_382986_7.pdf http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._91_370314_7.pdf http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._89_362839_7.pdf http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._78_276204_7.pdf http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._69_259822_7.pdf Soon a day will come when we can all laugh about this but in the interim our community and those that post on the MMMA forums and our membership needs to be made aware and be informed. More importantly they need to act with knowledge, caution, and understanding the various levels of risk associated with the behavior they choose to engage in. With that being said what once was called the unambiguous compliance policy, or behavior that would conform to those principals has been morphed into what will now be described as Level 1 risk behavior. Strict compliance with section 4 of the act is what will be advised to all who care to listen, as the type of behavior that has the lowest degree of risk of arrest. Everything else is Level 2 or 3 risk. That is to say if an encounter with law enforcement occurs the level of risk of being arrested, and being forced to defend yourself in court is higher. Is Level 2 and 3 risk behavior lawful? I personally think so, but who cares what I think. The analysis here is what we know of how LEO sees it collectively throughout the state. It may not be that way in your jurisdiction and it may be that way for a very good reason, but until all LEO acknowledge it as so, that behavior is just simply of higher risk. Please notice that nowhere in any of this analysis is the word unlawful or illegal used we are simply pointing out that there may be a higher risk of a negative outcome. So please understand, that no one at the MMMA wants to impede the success of the medical cannabis community growing and thriving, we just want those that care to listen to understand the difference of how the Act is being interpreted by LEO,the courts, and the impact it is having on patients and caregivers. Knowledge of these distinctions will make for a better understanding of how the lines have been drawn temporarily by the courts and law enforcement, and give our community proper notice of the risks that they may be taking when engaging in the medical use of cannabis. In closing I hope this helps clear up some of the confusion created earlier, and we all look forward to your input and an educated discussion which evolves this community. Thank you for your support and understanding. Michael Komorn President of the MMMA
  8. Planet Green Trees Episode 103- The Kiel Opinion http://www.blogtalkr...he-kiel-opinion Thursday 7 19 12 12: 8-1000 p.m. Call in Number 13473269626 (dial 1 to get on the air). Special guest: Cannabis Counsel Mathew Abel, attorney in the People v. Archie Kiel, discussing the long road to victory. Attorney John Targowski of Targowski and Grow discussing Forfeitures in Federal Court and the recent bill introduced before the U.S. Congress “ The Truth in Trials Bill.” Your host: Attorney Michael Komorn of KomornLaw Regular guests: Chad from the Birmingham Compassion Club, Gersh *Peanut Butter* for Cannabis Cancer Project, Rick Thompson reporting on news events, Jamie Lowell of Third Coast Compassion Center, and recovering patient Mike "Red Dog" McShane, ChrisTiana Starr, Kristine Beebe, Jamie Frickie . Tonight's Show Sponsored By: MMMA: michiganmedicalmarijuana.org Thanks to all the moderators Komorn Law - Atty Michael Komorn (800) 656-3557 Green Thumb Garden Center of Ferndale (248) 439-1851
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