People V Provost

[+Jennifer8]

I read recently that local departments must be trained via some kind of classroom instruction to use the LEIN system and that each of those departments sign on to use it. Some have. Some have not.

 

It is notable that all of the cases but one that are cited by the prosecution are district court rulings, which have no real standing as precedent, although they can be used to advise an issue.

 

Judges frequently decide issues of laws wrongly. For instance, the Americans with Disabilities act was signed by Geo. H.W. Bush in 1990. The courts consistently ruled too narrowly regarding the rights of the injured, (e.g.) Toyota v Williams and Sutton v United Air Lines, Inc. In 1988 the federal legislature, with support from every corner, to include injured worker groups and the Chambers of Commerce (it does not get much stranger than that), unanimously amended the act to ensure that the language that was written into the law be properly used to offer a fair chance at justice for injured or diseased plaintiffs by requiring the courts to more broadly consider what makes someone diabled, and eliminating the ability of these judges and wealthy defendants to interject confusion and wrong headed arguments, and language was added to the Equal Employment Opportunity Commission texts regarding enforcement of the law spelling it out more clearly for them. Many people tried to use the act to keep their jobs, but were denied. Judges ruled out arguments prior to trial and gave jury instructions that cornered those juries where they had to decide in favor of the defendant employers, who had refused reasonable accommodation to disabled individuals. Even Supreme Court Justices Scalia, Thomas, and some of the other right wing players did their part in twisting the law.

 

That is how the game is played. For eight years there were judges with ideological agendas who perverted the law, which was pretty plainly written. Those idiot judges are out there and everywhere, to include here. The issues might be different, but the moves are the same.

 

It looks like this case will have to be appealed. Higher courts are typically populated with more intelligent judges who respect the law, but there are still enough to be found there. More of them have intentionalist attitudes toward the law, and rule more consistently within the purpose, and less than with the closely defined text, of the law. The intention of the law can be argued to the jury and can be effective.

 

Where the law is concerned, District Courts are pre-k sandboxes for Judges. Inasmuch as they have cocky attitudes and behave like playground bullies, they are bush league but don't seem to get it. Even if they are found to have judged wrongly there is little to no real form of punishment, except possibly in the most extreme cases.

 

 

Great post!!

[AmishRnot4ganja]

Um...I think I may be in a unique position to comment on this, as I used to be the Assistant Prosecuting Attorney for Kalkaska County, practice in front of Judge Allen professionally and am a social acquaintance of hers as well. She is extremely liberal on social issues when she's away from the bench. However, she is also a very good Judge who does what she's supposed to...apply the law as written.

 

 

 

 

Sir:

 

As a professional, would you consider the divulging of the names of Medical Marihuana patients to be criminal, or at least in bad taste? Thanks.

[Hibbyhibby]

Sir:

 

As a professional, would you consider the divulging of the names of Medical Marihuana patients to be criminal, or at least in bad taste? Thanks.

 

 

It's not as straight-forward as it may seem. Obviously, much is dependent upon who puts the information out there and for what purposes. If it's put out there for intimidation or other unauthorized purposes, then it's definitely in poor taste and likely some form of civil or criminal violation.

 

However, the other side of the coin is that in criminal matters where a patient is being prosecuted,that patient's name becomes public information immediately upon arraignment. Then, that person chooses to assert the protections of the affirmative defense. In order to substantiate the right to such protection, it is the defendant/patient that must first assert it in a formal pleading. They have now chosen to out themselves publicly as a mmj patient. Next, the first element to satisfy the affirmative defense needed is a doctor to say it is medically justifiable/beneficial. So the patient needs, at the very least, an affidavit from that Dr. stating it's medically justifiable/beneficial and without whose testimony you don't get past the first step. Again, it is the patient who has chosen to submit a document or seek testimony in a public proceeding from their supporting physician who cannot remain anonymous and still testify. So while many people seem to be caught up in the names of the patient being in a court opinion as a violation, it is just about certain that circumstances forced the patient themself to make the initial disclosure. No violation.

 

Kirk

[peanutbutter]

It's not as straight-forward as it may seem. Obviously, much is dependent upon who puts the information out there and for what purposes. If it's put out there for intimidation or other unauthorized purposes, then it's definitely in poor taste and likely some form of civil or criminal violation.

 

However, the other side of the coin is that in criminal matters where a patient is being prosecuted,that patient's name becomes public information immediately upon arraignment. Then, that person chooses to assert the protections of the affirmative defense. In order to substantiate the right to such protection, it is the defendant/patient that must first assert it in a formal pleading. They have now chosen to out themselves publicly as a mmj patient. Next, the first element to satisfy the affirmative defense needed is a doctor to say it is medically justifiable/beneficial. So the patient needs, at the very least, an affidavit from that Dr. stating it's medically justifiable/beneficial and without whose testimony you don't get past the first step. Again, it is the patient who has chosen to submit a document or seek testimony in a public proceeding from their supporting physician who cannot remain anonymous and still testify. So while many people seem to be caught up in the names of the patient being in a court opinion as a violation, it is just about certain that circumstances forced the patient themself to make the initial disclosure. No violation.

 

Kirk

 

The defendant is not able to violate the criminal section of the MMA. That crime is one that only a government employee can commit.

 

Section eight cases, I and a couple of attorneys I've talked to, revolve around the doctors letter. However the doctors letter is no longer a question of fact once the MDCH issues the ID card. The case instantly becomes a section 4 case. With the ID card section 8 is no longer requires as long as the other issues fall into place. (12 2.5 etc.)

 

It is at the moment that the patient files the application that the additional protections for doctors and caregivers falls into place.

 

Then the criminal section of the law applies:

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

Is the identity of the doctor confidential? Clearly yes. How could a doctor be named in court records then? You pointed out the obvious apparent conflict between this absolute statement above and the part in section 8. The only way this conflict can be resolved is by applying one standard without the ID card and the other standard after the ID card has been applied for.

 

There is no question that the information contained within the registry system can not be divulged. If anyone, that is employed by state or local government, were to disclose information contained within that registry, they violate that section of our law. The MDCH is allowed to divulge one set of information. That is the information that is contained on a patient or caregiver card. A precise copy of the registry data is retained by the patient and caregiver pending the delivery of the plastic ID card.

 

It is the information that is protected. Not the physical paper itself.

 

The COA, in the Redden case, questioned the relationship between the patient and doctor. This is a question of fact and not of law.

 

This question of fact has been vested, by the voters, to be the domain of a regulatory agency in Lansing. Namely the MDCH. That agency, in the normal course of business, makes the determination of these facts. That takes these questions of fact out of court hands.

 

As I understand it, a patient could still hand a judge a copy of their doctors letter. They are not a government employee. They can not commit the crime listed. However, any employee of the government that divulges that information to a third party does commit this crime:

 

Section 6 (h) (4) A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1, 000.00, or both.

 

BTW I think that your contribution to our understanding of this law is massive. Thank you Thank you Thank you Thank you

[peanutbutter]

It is at the moment that the patient files the application that the additional protections for doctors and caregivers falls into place.

 

Then the criminal section of the law applies:

Section 6 (h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

It is within the context of the patient filing for the ID card that these protections for doctors and caregivers gets triggered.

 

I also believe that the MDCH is in violation of this section of law.

 

They disclose the name of the caregiver on the back of the patient ID card. This information is now being gathered by local police. Another violation of this section.

 

The MDCH needs to stop violating the criminal section of our new law. The only information about the caregiver that should exist on the back of the ID card is the caregiver id number. period.

[+Annnie]

I agree with you on that one Pb.. and was horrified when i saw my info on the back of my patients card.. So we took duct tape, cut it up to cover just that info and wrote on the duct tape.. HIPPA PROTECTED INFORMATION... I agree that mdch should protect that info but the tape idea was at least a quick fix.. It will be easy to see if the tape is lifted after someone in authority were to lift the tape..

[Hibbyhibby]

The defendant is not able to violate the criminal section of the MMA. That crime is one that only a government employee can commit.

 

Section eight cases, I and a couple of attorneys I've talked to, revolve around the doctors letter. However the doctors letter is no longer a question of fact once the MDCH issues the ID card. The case instantly becomes a section 4 case. With the ID card section 8 is no longer requires as long as the other issues fall into place. (12 2.5 etc.)

 

It is at the moment that the patient files the application that the additional protections for doctors and caregivers falls into place.

 

Then the criminal section of the law applies:

 

 

Is the identity of the doctor confidential? Clearly yes. How could a doctor be named in court records then? You pointed out the obvious apparent conflict between this absolute statement above and the part in section 8. The only way this conflict can be resolved is by applying one standard without the ID card and the other standard after the ID card has been applied for.

 

There is no question that the information contained within the registry system can not be divulged. If anyone, that is employed by state or local government, were to disclose information contained within that registry, they violate that section of our law. The MDCH is allowed to divulge one set of information. That is the information that is contained on a patient or caregiver card. A precise copy of the registry data is retained by the patient and caregiver pending the delivery of the plastic ID card.

 

It is the information that is protected. Not the physical paper itself.

 

The COA, in the Redden case, questioned the relationship between the patient and doctor. This is a question of fact and not of law.

 

This question of fact has been vested, by the voters, to be the domain of a regulatory agency in Lansing. Namely the MDCH. That agency, in the normal course of business, makes the determination of these facts. That takes these questions of fact out of court hands.

 

As I understand it, a patient could still hand a judge a copy of their doctors letter. They are not a government employee. They can not commit the crime listed. However, any employee of the government that divulges that information to a third party does commit this crime:

 

 

 

BTW I think that your contribution to our understanding of this law is massive. Thank you Thank you Thank you Thank you

 

 

Thanks, PB! I'm glad to be back.

 

Your analysis is not entirely off the mark. The issue in this case is that the affirmative defense was raised by the defendant (as a patient and caregiver...the latter being an issue of first impression apparently). My comments are related exclusively to the AD.

 

However, a question of fact is never in the hands of the voters, nor is such a determination reserved to the MDCH. Here, the voters decided what the language of the law is. It is up to the Judge or Jury to decide what the facts are and how they fit with the law.

 

Also, that a person has a medical license does not automatically mean that the dr. and patient have a legitimate relationship beyond challenge. Think of it this way, you can't (well, you can, but it's illegal) fill out a form on-line, have a dr. you've only spoken with once over the phone review that and prescribe narcotics based upon said form and phone call. There must be a legitimate dr./patient relationship according to the language of the statute. That relationship can be challenged as a factual matter. Then, the trier of fact makes the determination. Who is the trier of fact? Again, the Judge or jury. I think I would ask for a jury and likely argue to the court in a motion hearing that, as the legitimacy of the dr./patient relationship is a question of fact and there has been a jury demand, the court doesn't have the power to make the factual determination.

 

Please keep in mind it's Saturday morning and the above is stream of consciousness, so I don't claim it is a full analysis nor do I say it's free from error. It's just something that popped into my head which may further assist the discussion.

[peanutbutter]

Also, that a person has a medical license does not automatically mean that the dr. and patient have a legitimate relationship beyond challenge. Think of it this way, you can't (well, you can, but it's illegal) fill out a form on-line, have a dr. you've only spoken with once over the phone review that and prescribe narcotics based upon said form and phone call. There must be a legitimate dr./patient relationship according to the language of the statute. That relationship can be challenged as a factual matter. Then, the trier of fact makes the determination. Who is the trier of fact? Again, the Judge or jury. I think I would ask for a jury and likely argue to the court in a motion hearing that, as the legitimacy of the dr./patient relationship is a question of fact and there has been a jury demand, the court doesn't have the power to make the factual determination.

 

Please keep in mind it's Saturday morning and the above is stream of consciousness, so I don't claim it is a full analysis nor do I say it's free from error. It's just something that popped into my head which may further assist the discussion.

 

Yeah .. kind of foggy yet myself.

 

The protections of our law are such that when the ID card has been applied for, additional protections apply. In fact the criminal section of our law comes into existance in conjunction with the application being filed.

 

The criminal section exists. Simple fact.

It applies to any employee of state and/or local government. Another simple fact.

This section does not apply to only the employees of the MDCH. It applies to everyone except federal government employees.

 

Now then, I believe that civilians are not covered by this criminal section of this law. That is section 6 (h).

[peanutbutter]

There is nothing that precludes a patient from applying to the MMP program mid stream during the process of a case.

 

Additional protections are still activated when that patient applies for their ID card.

[peanutbutter]

In the case that is the topic of this thread, the judge lists a network of people.

 

This list highlights the confidential relationship that exists between five registered patients and their registered caregiver.

 

It highlights, discloses and publishes a segment of the registry file that is in Lansing at the MDCH.

 

One very basic question that I pose is this:

 

Is it the right of the voters to tell the courts to stay out? Issuing the ID card is supposed to protect the patient/caregiver/doctor from both police and courts.

[+Green Cross]

There must be a legitimate dr./patient relationship according to the language of the statute. That relationship can be challenged as a factual matter. Then, the trier of fact makes the determination. Who is the trier of fact? Again, the Judge or jury. I think I would ask for a jury and likely argue to the court in a motion hearing that, as the legitimacy of the dr./patient relationship is a question of fact and there has been a jury demand, the court doesn't have the power to make the factual determination.

 

Counselor, thanks for your input.

 

To the wider MMMA membership and leadership, I'm organizing a Kalamazoo meeting tomorrow, Sunday 9/26 at 4pm, among a group of doctors who sign recommendations for prospective applicants. The goal is creating a set of Best Practices that meet or exceed the stringent standards cited by Judge O'Connell in his 9-14-2010 Concurring Opinion. We hope to prevent more patients having their State issued ID cards (or paperwork) invalidated as in the Redden/Clark case.

 

I welcome input for Best Practices from the membership and others, particularly other doctors. I will submit the ideas we generate to attorneys from Lansing's Hubbard Law Firm who are acknowledged experts (to the extent anyone -can- be) of the 2008 MMJ Act; they will review our input to see whether it meets the challenges Judge O'Connell's Opinion lays out. This process -doesn't- mean doctors will or should follow Best Practices, but the intent is to start a dialog in the profession leading to bullet-proof validation of a "bona fide doctor-patient relationship." All constructive input is welcome. Please send questions, facts, law citations, and doctors' clinical experiences to me at Rich@GreenCrossMI.com. I will compile all input and lead a discussion with doctors in attendance. Kind regards, Rich.

[Murph]

Eric,

 

(Great Post -- thanks for keeping all the paperwork on these cases flowing) -- I got as far as the word "CONSENT" in the Judge's Opinion/Order

and knew problems after that word -- NEVER EVER, EVER, EVER, GIVE CONSENT TO SEARCH .

 

People listen, JUST SAY NO --- : "NO, NO, NO... I DO N....O....T CONSENT -- I want a Lawyer."

 

Then shut up --- they are going to do what they want to do anyway......your thinking saying Yes, will make them think your not holding (or NOT think your guilty)

is fooling yourself.....you just convict yourself by consenting or talking !! Say no and shut up.....do not play (as they don't play nice, as some have found out).

 

Its really really simple people -- "

 

IF EVER CONFRONTED BY ANY GOVERNMENT ACTOR (COPS, BUILDING INSPECTOR, CODE INSPECTOR, ECT) ---- SAY NO, SHUT UP. DEMAND (OR CALL) A LAWYER.

 

If in JAIL, DO NOT SAY ANYTHING ABOUT THE CHARGES/CASE (talk about the weather, Lions, Tigers, whatever), just not the facts of why your in there.....people tell all the time to get out of their own charges.

 

Just my 2 cents......not advice, for entertainment purposes only....

 

Peace, Stay safe.....

 

Murph

[Hibbyhibby]

Eric,

 

(Great Post -- thanks for keeping all the paperwork on these cases flowing) -- I got as far as the word "CONSENT" in the Judge's Opinion/Order

and knew problems after that word -- NEVER EVER, EVER, EVER, GIVE CONSENT TO SEARCH .

 

People listen, JUST SAY NO --- : "NO, NO, NO... I DO N....O....T CONSENT -- I want a Lawyer."

 

Then shut up --- they are going to do what they want to do anyway......your thinking saying Yes, will make them think your not holding (or NOT think your guilty)

is fooling yourself.....you just convict yourself by consenting or talking !! Say no and shut up.....do not play (as they don't play nice, as some have found out).

 

Its really really simple people -- "

 

IF EVER CONFRONTED BY ANY GOVERNMENT ACTOR (COPS, BUILDING INSPECTOR, CODE INSPECTOR, ECT) ---- SAY NO, SHUT UP. DEMAND (OR CALL) A LAWYER.

 

If in JAIL, DO NOT SAY ANYTHING ABOUT THE CHARGES/CASE (talk about the weather, Lions, Tigers, whatever), just not the facts of why your in there.....people tell all the time to get out of their own charges.

 

Just my 2 cents......not advice, for entertainment purposes only....

 

Peace, Stay safe.....

 

Murph

 

 

I'm with ya there, Murph. When I was prosecuting, I knew that if a person did not assert their right to remain silent and/or did not outright and unequivocally refuse when asked for consent, I was going to get a conviction on whatever the charge was. This applied in cases involving any kind of charge, from driving without your operator's license in your possession to felony murder.

[Hibbyhibby]

In the case that is the topic of this thread, the judge lists a network of people.

 

This list highlights the confidential relationship that exists between five registered patients and their registered caregiver.

 

It highlights, discloses and publishes a segment of the registry file that is in Lansing at the MDCH.

 

One very basic question that I pose is this:

 

Is it the right of the voters to tell the courts to stay out? Issuing the ID card is supposed to protect the patient/caregiver/doctor from both police and courts.

 

 

Yes, the people/voters can tell the court to stay out of it. We (the People) do it all the time through our elected representatives or, much less commonly, ballot initiatives. For instance, some statutes say that a court shall not do such and such. That is, in effect, the people telling the court what they can and cannot do within the context of the specific legislation. If the language of the statute said that the courts shall not permit the legitimacy of the dr./patient relationship to be challenged (for which an argument could be made that entertaining such a challenge constitutionally infringes upon a persons right to choose their own dr., right to association free from governmental interference, right to engage in commerce, etc. I'm assuming smarter persons than I have considered this), then the courts are out of it. However, that's not what the law says.

[thanks2]

The judge and prosecutor need to read

"Update:Michigan’s Medical Marihuana Act"

Presented by:

Kenneth Stecker

PAAM

Celeste Clarkson

MDCH/Medical Marihuana Registry Program

 

Page 27:

The affirmative defense, by contrast

to the Registry ID Card Program,

requires no advance action or

expense, no formalities, and its

scope is quite broad.

 

Page 52:

The affirmative defense section applies

to “persons” rather than just to

“qualifying patients.”

[+RevThad]

The judge and prosecutor need to read

"Update:Michigan’s Medical Marihuana Act"

Presented by:

Kenneth Stecker

PAAM

Celeste Clarkson

MDCH/Medical Marihuana Registry Program

 

Page 27:

The affirmative defense, by contrast

to the Registry ID Card Program,

requires no advance action or

expense, no formalities, and its

scope is quite broad.

 

Page 52:

The affirmative defense section applies

to “persons” rather than just to

“qualifying patients.”

 

First let me start by saying, I am all for the protections the law provides and have been tearing it apart, section by section and clause by clause. Anybody around these parts will tell you that I am very pro patient and caregiver.

 

That being said I must disagree with the quotes you provide from those pages. The affirmative defense clearly sets up 3 prongs that must be met for it to be effective, and to warrant a dismissal of the charges. First off, there is only one line referring to "a person" in Section 8, and the clause it is contained in points back up to subsection (a)

 

"(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a)."

 

Subsection (a) is where the 3 prongs are listed...

 

(1) A physician has stated that the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana (paraphrased for brevity).

 

(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 ..

 

(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.....

 

The first prong seems to be where the COA and other courts have drawn a line, and are suggesting that the doctor recommendation must come prior to the arrest... of course that is still to be fought some more in the courts, but that is about where we stand currently... one must at least be a patient or qualifying patient prior to arrest, even if not registered with the state....

 

Just my opinions, and others may differ.

[thanks2]

First let me start by saying, I am all for the protections the law provides and have been tearing it apart, section by section and clause by clause. Anybody around these parts will tell you that I am very pro patient and caregiver.

 

That being said I must disagree with the quotes you provide from those pages. The affirmative defense clearly sets up 3 prongs that must be met for it to be effective, and to warrant a dismissal of the charges. First off, there is only one line referring to "a person" in Section 8, and the clause it is contained in points back up to subsection (a)

 

"(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a)."

 

Subsection (a) is where the 3 prongs are listed...

 

(1) A physician has stated that the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana (paraphrased for brevity).

 

(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 ..

 

(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.....

 

The first prong seems to be where the COA and other courts have drawn a line, and are suggesting that the doctor recommendation must come prior to the arrest... of course that is still to be fought some more in the courts, but that is about where we stand currently... one must at least be a patient or qualifying patient prior to arrest, even if not registered with the state....

 

Just my opinions, and others may differ.

 

The case law is all over the board right now. But, as the prosecutor pointed out in the power point presentation, section 4 and 8 differ in the fact one must be a qualified patient for section 4 and one must only be a patient for section 8. This should mean, as it was meant to, that any person that has a serious medical condition that can be treated with medical marijuana is covered by section 8. This would include other serious and debilitating diseases like PTSD, sleep apnea, insomnia, or other condition marijuana has a palliative effect, but is not listed in section 4. Also, the recommendation is different than the diagnosis. I would agree that one must be diagnosed with an aliment, or at least the aliment must exist at the time of arrest, but I do not agree they have to have a recommendation at the time of the arrest. Section 8 was meant to protect those who have doctors that are afraid to sign a recommendation or patients who are afraid to bring up medical marijuana.

 

The fact that his patients were diagnosed, but did not get their recommendation until after the arrest should not matter according to the writer of the law.

 

That being said, I would not count on the courts allowing the law as it is written, it is too big of a gamble.

[+RevThad]

The case law is all over the board right now. But, as the prosecutor pointed out in the power point presentation, section 4 and 8 differ in the fact one must be a qualified patient for section 4 and one must only be a patient for section 8. This should mean, as it was meant to, that any person that has a serious medical condition that can be treated with medical marijuana is covered by section 8. This would include other serious and debilitating diseases like PTSD, sleep apnea, insomnia, or other condition marijuana has a palliative effect, but is not listed in section 4. Also, the recommendation is different than the diagnosis. I would agree that one must be diagnosed with an aliment, or at least the aliment must exist at the time of arrest, but I do not agree they have to have a recommendation at the time of the arrest. Section 8 was meant to protect those who have doctors that are afraid to sign a recommendation or patients who are afraid to bring up medical marijuana.

 

The fact that his patients were diagnosed, but did not get their recommendation until after the arrest should not matter according to the writer of the law.

 

That being said, I would not count on the courts allowing the law as it is written, it is too big of a gamble.

 

Section 4 requires registration, Section 8 doesn't. That is the major differences in the law as written.

 

I do agree with you about the intent of Section 8, that it shouldn't require a recommendation, just a diagnosis of one of the recognized conditions should be enough to qualify for the AD, but the language states that the recommendation is required at some point in the process of asserting the AD.... unfortunately the COA ruling puts that at prior to arrest at the moment at least when it comes to a caregiver asserting it for the cultivating purposes...

 

A higher court ruling could definitely and will probably define the timeline on when such a recommendation is required...

[thanks2]

Section 4 requires registration, Section 8 doesn't. That is the major differences in the law as written.

 

I do agree with you about the intent of Section 8, that it shouldn't require a recommendation, just a diagnosis of one of the recognized conditions should be enough to qualify for the AD, but the language states that the recommendation is required at some point in the process of asserting the AD.... unfortunately the COA ruling puts that at prior to arrest at the moment at least when it comes to a caregiver asserting it for the cultivating purposes...

 

A higher court ruling could definitely and will probably define the timeline on when such a recommendation is required...

I guess I missed that part. I will go back and read it once over again. If you remember the wording, I would appreciate the help, other wise I am sure I can find it. It is unusual for an appeals court to address an issue that is not at hand in a case. Since it was not a question in Bob's case, I am surprised they covered it. Unless you are referring to the concurring opinion?

[peanutbutter]

Yes, the people/voters can tell the court to stay out of it. We (the People) do it all the time through our elected representatives or, much less commonly, ballot initiatives. For instance, some statutes say that a court shall not do such and such. That is, in effect, the people telling the court what they can and cannot do within the context of the specific legislation. If the language of the statute said that the courts shall not permit the legitimacy of the dr./patient relationship to be challenged (for which an argument could be made that entertaining such a challenge constitutionally infringes upon a persons right to choose their own dr., right to association free from governmental interference, right to engage in commerce, etc. I'm assuming smarter persons than I have considered this), then the courts are out of it. However, that's not what the law says.

 

According to section 6 (h) the very identity of the doctor is confidential.

 

Employees of state and local governments who disclose confidential information are guilty of a misdemeanor. (6(h)(4))

 

Are judges employees of government? If so how can a judge disclose the identity of the doctor and not be a criminal?

 

As OConell (sp?) pointed out, the doctor has strong protections in the law.

 

I believe this is the voters saying to the system "stay away from the doctors."

 

Someone may point out that in section 8 the doctors letter is required. Therefore the identity of the doctor is required to be disclosed.

 

That is in section 8. The rest of the law highlights added protections afforded to the doctor.

 

That is why the transition that takes place when the patient applies is important to understand. Criminal penalties attach the moment the patient applies for the ID card.

 

The criminal section only applies after application has been made. That is why confidentiality is discussed only within the context of applications and supporting documents. It is the information that patients are willing to submit to Lansing that is afforded these extra protections.

 

This section of the law doesn't say "stay away." It says "if you don't stay away you go to jail."

[Hibbyhibby]

The Judge did not reveal anything that wasn't revealed by the defendant himself in his Brief in Support of Motion to Dismiss. That Brief is Support is a public documents. As such, it was the defendant that chose to reveal that information. I'm not saying that he's guilty of a crime for doing so, but the Judge certainly is not.

 

And yes, the Judge is an employee of government.

[peanutbutter]

The Judge did not reveal anything that wasn't revealed by the defendant himself in his Brief in Support of Motion to Dismiss. That Brief is Support is a public documents. As such, it was the defendant that chose to reveal that information. I'm not saying that he's guilty of a crime for doing so, but the Judge certainly is not.

 

And yes, the Judge is an employee of government.

 

I don't think the fact that someone else divulged information would absolve anyone else from their own legal responsibilities.

[peanutbutter]

This judge is advocating for every single doctor that writes a letter to be exposed to the threat of being hauled into court to justify himself.

 

That is clearly not the purpose of this law.

 

His mention of Redden's doctor added absolutely nothing to his presentation. Nothing at all.

 

If he did not violate the letter of the law he certainly violated the spirit.

 

The identity of the doctor is confidential.

[bobandtorey]

This judge is advocating for every single doctor that writes a letter to be exposed to the threat of being hauled into court to justify himself.

That is true i think the Doc are scared!

[Hibbyhibby]

This judge is advocating for every single doctor that writes a letter to be exposed to the threat of being hauled into court to justify himself.

 

That is clearly not the purpose of this law.

 

His mention of Redden's doctor added absolutely nothing to his presentation. Nothing at all.

 

If he did not violate the letter of the law he certainly violated the spirit.

 

The identity of the doctor is confidential.

 

 

Nothing is confidential that is made an issue/brought into court by someone who has the right to waive confidentiality. When the defendant filed his brief, it became part of the official record. It is also public record. You, me, Joe down the street has the right to see those documents. Here, the patient/caregiver had the absolute right to defend himself the way he chooses. In doing so, he chose to assert a defense that is based upon and dependent upon the concurrence and testimony (likely via affidavit) of the patients (qualifying or otherwise at the time of arrest)for whom he was acting as caregiver. I expect his attorney obtained some kind of waiver or consent from his patients to use their information in a public filing. Most likely they did so willingly to help out the person who has helped them out, if the facts are as the defendant presents. As such, it was the defendant, most likely with the full consent and knowledge of his patients, that first revealed the information. It's out there. It can't be taken back. Once it's part of the public record, it is no longer anything that is close to confidential. In fact, it's now the opposite.