Appeals Court Decision In Unionville Case Will Affect Medical Marijuana Cases Statewide

[AKenewell]

Appeals court decision in Unionville case will affect medical marijuana cases statewide

Published: Sunday, August 29, 2010, 2:46 PM Updated: Monday, August 30, 2010, 11:00 AM

 

CARO — A state Court of Appeals has published an earlier opinion reinstating charges against a Tuscola County man accused of manufacturing marijuana.

The published opinion now sets a precedent that is likely to affect cases involving the Medical Marijuana Act across the state.

 

In July, the Appeals Court — comprised of Justices Peter D. O’Connell, Patrick M. Meter and Donald S. Owens, all of Lansing — reversed a Tuscola County judge’s ruling dismissing charges against Keith J. Campbell.

The Unionville man was charged in December 2007 with manufacturing marijuana, possession with intent to deliver marijuana, possession of a firearm during commission of a felony and possession of marijuana.

In a motion to dismiss, Campbell’s attorney cited a 2006 California Supreme Court case that authorized retroactive application of medical marijuana laws.

Michigan voters approved the Medical Marijuana Act in December of 2008.

When the trial judge sided with Campbell, Prosecutor Mark E. Reene appealed to a higher authority.

Reene could not be reached for an update on Campbell’s case.

 

http://www.mlive.com/news/bay-city/index.ssf/2010/08/appeals_court_decision_in_unio.html

 

Below is the link to the actual appeal court ruling

 

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20100713_C291345_51_291345.OPN.PDF

[peanutbutter]

The appeal courts ruling ignored one very important point.

 

Our law contains a direct order to the courts. "the case SHALL be dismissed."

 

That order to the courts of Michigan also went into effect on 12/4/2008.

 

This is not an order to a defendant. The defendant can not dismiss their own case.

 

This is an obligation, an absolute requirement, a duty to perform, that the voters of Michigan placed directly on the courts.

 

This isn't about what a patient or caregiver may or may not do. It is an order directly to the courts. And that went into effect 12/4/2008.

[bobandtorey]

i met him at the event a few weekends ago he was sad that dark day July 7 i know the date because are case was heard that same day

 

lets hope that it works out for him (he was unregister person) so it sounds like he was legal

[peanutbutter]

i met him at the event a few weekends ago he was sad that dark day July 7 i know the date because are case was heard that same day

 

lets hope that it works out for him (he was unregister person) so it sounds like he was legal

 

The big difference between your case and Keiths case is when the arrest took place.

 

In his case he was arrested before the law went into effect. You were arrested after the law went into effect.

 

BTW the Supreme Court has had a new judge installed. I believe this judge is mmj friendly.

[jinx]

The big difference between your case and Keiths case is when the arrest took place.

 

In his case he was arrested before the law went into effect. You were arrested after the law went into effect.

 

BTW the Supreme Court has had a new judge installed. I believe this judge is mmj friendly.

 

And I do believe that new judge will be up for renewal in Nov. He was just appointed by Granholm.

[Guest finallyfree09]

how can it NOT go retroactive? if drugs were totally legalized today the government would not be able to keep people in jail for simple possession. they would have to be released because what they did to wind up in jail would not be a crime if they were caught in possession after drugs were legalized.

 

if cannabis were legalized across the board on monday, would not the government be OBLIGATED to dismiss charges against anyone and everyone facing prosecution for possession?

 

mmj is legal. if this guy was illegally growing for medical reasons before the law passed then that means he should be acquitted because... IT IS NO LONGER A CRIME TO ENGAGE IN THE MEDICAL USE OF MARIJUANA IN THE STATE OF MICHIGAN.

 

theres my rant for the day.

[RangerRick160]

This seems rather cut and dry to me. Unless I am missing something. Mr. Campbell was arrested in 2007. The law did not go into effect until 2008. Seems like a no brainer to me. Mr. Campbell was breaking the law. Knew he was breaking the law. To make matters worse he had a fire arm on him when he was busted. I find it hard to have any sympathy for him. Now if the same thing happened after the law went into effect and the person did not have a firearm on them. And the person was in pocession of the legal limit to transport to a patient. Then there would be a problem. But as I see it... this gentlman has no case or cause for dismissal of the charges brought against him. And with regard to retroactive. Any law cannot be retroactive unless there is language in the law that states just that. That was the case in California.

[+JuztBudz]

And what of the affirmative defense? This law was redress for previous grievances against the state. Michigan once had a medical marijuana law that went out of servicability due to the state's inability to supply proper medicine to it's users. We lost the right to use MM because the feds and state gov't failed to do their jobs. That makes this law retroactive in my eyes...Peace...j.b.

[peanutbutter]

This seems rather cut and dry to me. Unless I am missing something. Mr. Campbell was arrested in 2007. The law did not go into effect until 2008. Seems like a no brainer to me. Mr. Campbell was breaking the law. Knew he was breaking the law. To make matters worse he had a fire arm on him when he was busted. I find it hard to have any sympathy for him. Now if the same thing happened after the law went into effect and the person did not have a firearm on them. And the person was in pocession of the legal limit to transport to a patient. Then there would be a problem. But as I see it... this gentlman has no case or cause for dismissal of the charges brought against him. And with regard to retroactive. Any law cannot be retroactive unless there is language in the law that states just that. That was the case in California.

 

Why would the firearm make any difference at all if the person was completely legal?

 

As I said above, this ruling ignores the responsibility placed on judges.

 

That responsibility was placed on judges from 12/4/2008 forward.

 

Are you saying that the law doesn't apply to judges?

 

I'm not looking at what Keith may or may not have done. What I'm seeing is a judge thumbing his nose at a direct order from the voters and the law itself.

[bobandtorey]

i had a chance to talk to him some at the event last month and yes it was in the Med.tent he seamed to be very happy this Law was maid for him he was and is a Quaffed P

the AD is solid

[+420Atheist]

Why would the firearm make any difference at all if the person was completely legal?

 

 

You beat me to it PB. Just because I like to deer hunt should not add a felony charge to an all ready bogus charge.

[Dr. Bob]

You all are missing the point. The question that should be addressed is not whether the affirmative defense applies here. The actual argument is that the certification must be the product of a 'bona fide' relationship between the physician and the patient. By questioning THIS relationship, they are seeking to invalidate the certification. Despite the presence of urgent cares, emergency rooms and insurance examinations- all single visit for a specific issue, the opinion raises questions about a single visit certification for a MMJ card.

 

No it doesn't make sense, especially in light of the fact that based on a single visit I can send a patient for surgery or deny them life insurance or the ability to drive a commercial vehicle. But that matters not. How are we as certification physicians to respond to this opinion to protect our patients and ourselves? How can we respond to a prosecutor demanding to know how we could possibly confirm a diagnosis of severe chronic pain based on a single visit? Or how we planned to follow up and monitor the treatment over time? If we can't answer these questions adequately, our patients risk having their certifications negated, our licenses placed in jeopardy, and the entire medical marijuana program gutted by the courts.

 

Unless we put an end to the hotel certification mills, the 'no record' certs, and limit the patients certified to those with clearly debilitating chronic conditions, we will lose the program. I've certified hundreds of middle aged folks with wrecked backs and very clear records, so have others, but all we need is for the media to parade out one 18 year old stoner with PMS and a card to make us all the basement of the 70's show rather than valid medical patients. Otherwise the bean counters and the courts will regulate us out of existence. Imagine for a moment a new rule requiring a 2 year history of continued treatment between patient and certifying physician. On the surface this clearly would be a bona fide physician/patient relationship, but what is the effect? All VA and Tribal Health patients could not get certified until they changed doctors for 2 years. Same for patients of practices, hospitals, and insurance groups that make their physician agree to NOT write certs.

 

We need to be more rigorous in our practices, restrict certs to the clearly qualified, and show that we as physicians can and should be in control of the certs, not the government or the certification mills with 'hired' docs signing scores or in some cases hundreds of certs a day. The opinions in the Redden case point out some of the objections to the process, we need to change the process to address those objections and overcome them. It is all good and fine to say what 'should' have been the interpretation of the law and ruling of the court and that we will carry the fight further. But in reality it is what it is and we need to deal with it and tighten our game. Otherwise our patients will suffer, and so to may we at the hands of the medical board and LEO.

[+RevThad]

Hey Dr. Bob, glad to see ya posting again.

 

The good news is that the concurring opinion isn't the law of the land, as it wasn't joined by either of the other justices.

 

I think perhaps, you were referring to the ruling that came out this week, and not to the one this thread was based on?

[Dr. Bob]

Yes it is an opinion from the same justice on a similar case and a similar argument. I looked through the forums and it appeared to be the most appropriate place to address it. Yes it is a concurring opinion with the same result and addresses the objections that are being raised to the entire process. My point is that many here are pointing out the fact that the courts are trying to chip away at the act, not following various provisions of the act and otherwise trying to go against the will of the people of Michigan when it comes to MMJ. This concurring opinion sums up their strategy and what they feel are valid ways to overcome the affirmative defense. My posting is my response to that strategy and a proposed solution which is put out for comment.