People V Provost

[+RevThad]

Eric, thanks for sharing this. It is reprehensible, that they are requiring anybody to prove that they are not guilty of a felony in an ongoing case. It defies logic. Isn't it the job of the prosecutor to prove that they are guilty before, any action can be taken by any other body?

 

Thanks again for the information, and let us know if there is anything any of us can do to help with the situation.

[Hibbyhibby]

Eric, thanks for sharing this. It is reprehensible, that they are requiring anybody to prove that they are not guilty of a felony in an ongoing case. It defies logic. Isn't it the job of the prosecutor to prove that they are guilty before, any action can be taken by any other body?

 

Thanks again for the information, and let us know if there is anything any of us can do to help with the situation.

 

Hold up, all y'all. The denial wasn't based upon guilt or innocence, nor on some potential future violation of the law. The denial is because there is an active case that needs to be resolved one way or the other. What they're saying, basically, is that there is information out there (the case) that may directly effect Mr. Prevost's eligibility to be a caregiver. So it's not that he could be convicted of some vague and undefined future crime which may not even occur, but rather that there was an ongoing case when the application was made that was unresolved at the time of application which MAY prevent Mr. Prevost from being a caregiver. Furthermore, if the appropriate documentation is provided, it appears the application is to be reconsidered.

 

Basically, this is nothing more than a denial based upon (in effect) an incomplete application. I'm not saying it's right, but it doesn't appear to be a full blown travesty of justice.

[peanutbutter]

Hold up, all y'all. The denial wasn't based upon guilt or innocence, nor on some potential future violation of the law. The denial is because there is an active case that needs to be resolved one way or the other. What they're saying, basically, is that there is information out there (the case) that may directly effect Mr. Prevost's eligibility to be a caregiver. So it's not that he could be convicted of some vague and undefined future crime which may not even occur, but rather that there was an ongoing case when the application was made that was unresolved at the time of application which MAY prevent Mr. Prevost from being a caregiver. Furthermore, if the appropriate documentation is provided, it appears the application is to be reconsidered.

 

Basically, this is nothing more than a denial based upon (in effect) an incomplete application. I'm not saying it's right, but it doesn't appear to be a full blown travesty of justice.

 

The only legal way for this denial to take place is if there is a conviction.

 

This is an extra hurdle that was placed before the defendant in the application process.

 

It might be a "good idea" but it isn't the law and doesn't conform to the law the MDCH is supposed to fulfill.

[Hibbyhibby]

The only legal way for this denial to take place is if there is a conviction.

 

This is an extra hurdle that was placed before the defendant in the application process.

 

It might be a "good idea" but it isn't the law and doesn't conform to the law the MDCH is supposed to fulfill.

 

PB,

 

Should a person charged with felonious assault/attempted murder/some other heinous and violent crime, who is past the preliminary exam portion of the litigation and bound over to circuit court on the charges, but not yet actually convicted, be eligible to receive his concealed weapons permit? Or is a reasonable position to take that there may be just cause to await an outcome? The laws are very similar.

[+RevThad]

PB,

 

Should a person charged with felonious assault/attempted murder/some other heinous and violent crime, who is past the preliminary exam portion of the litigation and bound over to circuit court on the charges, but not yet actually convicted, be eligible to receive his concealed weapons permit? Or is a reasonable position to take that there may be just cause to await an outcome? The laws are very similar.

Besides the fact that a concealed weapon has at least a possible chance to cause harm to others, your argument is an interesting comparison. My answer would be based on whether the person currently had such a permit, and whether there was a court order to prevent it being renewed until the outcome was determined.

 

Your position that it was an incomplete application, raises an interesting question. Can MDCH start denying applications and demanding proof of something that is not covered in the law or rules? In other words, there is no conviction on the books, so there is no disqualification under the law, so how can they deny based on a valid, qualified application? Speculating on whether or not there is a possibility of a conviction in an ongoing case is outside the scope of the MDCH and of the law that governs them.

 

Counselor, I am surprised that you didn't hold to the line of "innocent until proven guilty" on this one... unless you are playing devil's advocate to test the waters.

 

I wish you well.

[bobandtorey]

OMG they may take are cards this time when we go back to court???

[+RevThad]

OMG they may take are cards this time when we go back to court???

Nah, was just commenting on the fact that MDCH took it into their own hands to deny a (renewal?) application because the applicant has an ongoing case, with no conviction to prevent it...

 

However, you are the perfect example, with your case ongoing should they be able to deny your renewal applications? My answer to that is a definite NO!

[bobandtorey]

Thanks for the reply But am not sure of any thing any more with Oakland County are renewal is coming up soon and we went to the same place last two times THC-F

and had the same Doc: both times but now am not sure were to go i just feel like some how we are being singled out here in Oakland County

[+RevThad]

Bob, keep your chin up. It is a beautiful sunny day here in our lovely state, and even though winter is soon to follow, the sun will continue to shine and open eyes to the tyranny in Oakland county. You my friend are part of the solution, don't let them scare you into thinking otherwise. Find strength in your comrades, as we find strength in you.

[Southern Cross]

Thanks for the reply But am not sure of any thing any more with Oakland County are renewal is coming up soon and we went to the same place last two times THC-F

and had the same Doc: both times but now am not sure were to go i just feel like some how we are being singled out here in Oakland County

They can deny a "caregiver" card or renewal based on conviction of a drug related felony, but they can't deny a "patient" their medication even if they have been convicted of a drug related felony. So your patient cards are safe.

 

Even though you may live in Oakland County the cards are issued from Lansing and they are still (sort of) following the rules.

[RnJoe]

Thank you Eric!

 

This is the first case, that I'm aware of, that the concept of the "unregistered caregiver" is being used.

 

Now the next problem.

 

If these are public court records, then the court did violate Michigan law.

 

Those responsible for this violation are supposed to go to jail.

 

 

 

Did these court records disclose information about doctors and caregivers? Sure enough.

 

 

The 'court' only reported what the defense attorney provided to them... Good point!

[Hibbyhibby]

Besides the fact that a concealed weapon has at least a possible chance to cause harm to others, your argument is an interesting comparison. My answer would be based on whether the person currently had such a permit, and whether there was a court order to prevent it being renewed until the outcome was determined.

 

Your position that it was an incomplete application, raises an interesting question. Can MDCH start denying applications and demanding proof of something that is not covered in the law or rules? In other words, there is no conviction on the books, so there is no disqualification under the law, so how can they deny based on a valid, qualified application? Speculating on whether or not there is a possibility of a conviction in an ongoing case is outside the scope of the MDCH and of the law that governs them.

 

Counselor, I am surprised that you didn't hold to the line of "innocent until proven guilty" on this one... unless you are playing devil's advocate to test the waters.

 

I wish you well.

 

Little from column A, little from Column B as far as devil's advocate. Yes, I believe in the right to be innocent until proven guilty, but no matter how much it is wished to be so, it is not a black and white world. There is much, much gray, particularly with a law that was thrust upon the legislature by the Will of the People. While I do concur that using a gun in my analogy could result in harm coming to another, that's not the question. The question is what is legal and what is not legal. We've always known the mj causes no harm to others (or the pt, for that matter), but it's still illegal. That's the standard I'm was using when making the analogy. A person is not permitted to be a caregiver if they have a felony drug conviction on their record. Right now, Mr. Prevost may not have a felony conviction, but it's gotten past the probable cause portion of the case. However, and this is really important for your considerations:

 

They did not say that Mr. Prevost could not be a caregiver. They said that Mr. Prevost has an active case for a drug felony which may or may not be resolved. They don't know. They've said they need the paperwork to see if it was resolved or the current status of the case. They've asked Mr. Prevost to provide that information. For all they know the case was resolved with a felony conviction, less than felony level conviction, dismissed or otherwise. They do, however, know that there was something out there that could result in Mr. Prevost not being eligible as a caregiver. They also don't say "if they case is still active, even if there is no conviction, you're refused." They simply say we don't have enough information on the status of the case which could result in Mr. Prevost's being unable to be a caregiver and, once provided, the application can be resubmitted for consideration.

 

In anticipation of an argument which may be submitted in response: No, if there was a conviction it would not necessarily show up on LEIN in real time. There is often a lag, sometimes substantial. The fact that the case is over a year old and they've only passed the preliminary exam portion of it by the available records could reasonably cause someone to think that maybe something got missed (remember the right to a speedy trial, most criminal cases are done in a matter of months, if not weeks). As such, they're checking it out by asking Mr. Prevost to submit the info of the cases so they can make a decision based upon full knowledge.

 

It sucks that he was refused, but it's not the end of the line. If they refuse without a conviction because the case is still on-going after being provided full information, now that's a different ballgame.

[+RevThad]

Little from column A, little from Column B as far as devil's advocate. Yes, I believe in the right to be innocent until proven guilty, but no matter how much it is wished to be so, it is not a black and white world. There is much, much gray, particularly with a law that was thrust upon the legislature by the Will of the People. While I do concur that using a gun in my analogy could result in harm coming to another, that's not the question. The question is what is legal and what is not legal. We've always known the mj causes no harm to others (or the pt, for that matter), but it's still illegal. That's the standard I'm was using when making the analogy. A person is not permitted to be a caregiver if they have a felony drug conviction on their record. Right now, Mr. Prevost may not have a felony conviction, but it's gotten past the probable cause portion of the case. However, and this is really important for your considerations:

 

They did not say that Mr. Prevost could not be a caregiver. They said that Mr. Prevost has an active case for a drug felony which may or may not be resolved. They don't know. They've said they need the paperwork to see if it was resolved or the current status of the case. They've asked Mr. Prevost to provide that information. For all they know the case was resolved with a felony conviction, less than felony level conviction, dismissed or otherwise. They do, however, know that there was something out there that could result in Mr. Prevost not being eligible as a caregiver. They also don't say "if they case is still active, even if there is no conviction, you're refused." They simply say we don't have enough information on the status of the case which could result in Mr. Prevost's being unable to be a caregiver and, once provided, the application can be resubmitted for consideration.

 

In anticipation of an argument which may be submitted in response: No, if there was a conviction it would not necessarily show up on LEIN in real time. There is often a lag, sometimes substantial. The fact that the case is over a year old and they've only passed the preliminary exam portion of it by the available records could reasonably cause someone to think that maybe something got missed (remember the right to a speedy trial, most criminal cases are done in a matter of months, if not weeks). As such, they're checking it out by asking Mr. Prevost to submit the info of the cases so they can make a decision based upon full knowledge.

 

It sucks that he was refused, but it's not the end of the line. If they refuse without a conviction because the case is still on-going after being provided full information, now that's a different ballgame.

I understand your argument, and agree with the premise. I am opposed to it being standard operating procedure though. Technically any arrest of a mmj patient or caregiver could result in a felony conviction (especially if elevated to the feds). I am just not aware of how they would come to use (or come into possession) of the information about an ongoing case. Sure LEIN probably has a listing for the arrest in it, but isn't it the departments job to check for such convictions? The extra burden they are placing on Mr. Provost seems to be different than that placed on other applicants.

 

I guess I am opposed to the procedural move to require of an applicant that which is not required in the rules or guidelines for applying. Delaying such a renewal because the folks at MDCH aren't capable of doing their jobs (verifying the conviction status), seems an undue burden on the applicants (both the patient and Mr Provost).

 

Thank you for your clarifications though, I think these types of conversations are great for our community.

[peanutbutter]

Little from column A, little from Column B as far as devil's advocate. Yes, I believe in the right to be innocent until proven guilty, but no matter how much it is wished to be so, it is not a black and white world. There is much, much gray, particularly with a law that was thrust upon the legislature by the Will of the People. While I do concur that using a gun in my analogy could result in harm coming to another, that's not the question. The question is what is legal and what is not legal. We've always known the mj causes no harm to others (or the pt, for that matter), but it's still illegal. That's the standard I'm was using when making the analogy. A person is not permitted to be a caregiver if they have a felony drug conviction on their record. Right now, Mr. Prevost may not have a felony conviction, but it's gotten past the probable cause portion of the case. However, and this is really important for your considerations:

 

They did not say that Mr. Prevost could not be a caregiver. They said that Mr. Prevost has an active case for a drug felony which may or may not be resolved. They don't know. They've said they need the paperwork to see if it was resolved or the current status of the case. They've asked Mr. Prevost to provide that information. For all they know the case was resolved with a felony conviction, less than felony level conviction, dismissed or otherwise. They do, however, know that there was something out there that could result in Mr. Prevost not being eligible as a caregiver. They also don't say "if they case is still active, even if there is no conviction, you're refused." They simply say we don't have enough information on the status of the case which could result in Mr. Prevost's being unable to be a caregiver and, once provided, the application can be resubmitted for consideration.

 

In anticipation of an argument which may be submitted in response: No, if there was a conviction it would not necessarily show up on LEIN in real time. There is often a lag, sometimes substantial. The fact that the case is over a year old and they've only passed the preliminary exam portion of it by the available records could reasonably cause someone to think that maybe something got missed (remember the right to a speedy trial, most criminal cases are done in a matter of months, if not weeks). As such, they're checking it out by asking Mr. Prevost to submit the info of the cases so they can make a decision based upon full knowledge.

 

It sucks that he was refused, but it's not the end of the line. If they refuse without a conviction because the case is still on-going after being provided full information, now that's a different ballgame.

 

Another problem is that it could have a material impact on his case.

 

This is one of the five named patients.

 

This was a renewal. Not a new application.

[+Silverblue]

So many questions, so few answers. Questions for lawyers, doctors, LEO's, AG's etc.

 

From conflicting fed/state law, to dr/pt relationships, clinics, renewals, convictions, transfers, interpretations, it sure seems like we're all reading the same book but coming up with different versions of what the story is about.

 

Too many questions, too few answers.

 

Sb

[bobandtorey]

Another problem is that it could have a material impact on his case.

 

This is one of the five named patients.

 

This was a renewal. Not a new application.

 

 

i think he was kingpinns caregiver

[bobandtorey]

So many questions, so few answers. Questions for lawyers, doctors, LEO's, AG's etc.

 

From conflicting fed/state law, to dr/pt relationships, clinics, renewals, convictions, transfers, interpretations, it sure seems like we're all reading the same book but coming up with different versions of what the story is about.

 

Too many questions, too few answers.

 

Sb

 

i think if all the people above ask them self one Question what is this Law for and they should say the sick dieing

[peanutbutter]

I talked to Terry today.

 

He tells me that he received some GREAT news.

 

His case has been dismissed base on the affirmative defense. I believe it was dismissed with prejudice, meaning the case can not be reopened.

 

It's over ..

 

The courts are returning much of his property. Including a couple of guns and growing lights.

 

Thank you Eric for posting all those pages of paperwork and fighting the good fight.

[drtarzanmd]

I talked to Terry today.

 

He tells me that he received some GREAT news.

 

His case has been dismissed base on the affirmative defense. I believe it was dismissed with prejudice, meaning the case can not be reopened.

 

It's over ..

 

The courts are returning much of his property. Including a couple of guns and growing lights.

 

Thank you Eric for posting all those pages of paperwork and fighting the good fight.

 

 

 

TERRY

 

That is some Very Good News ....

 

I am Very Happy to hear this ....

 

Today is a Great Day in the Jungle for Terry ....

[bobandtorey]

i got that call also great news we are hoping for that to some day soon

[+Silverblue]

GREAT NEWS!

 

Sb

[+JuztBudz]

Out...effen...standing!!!!!!!!!! This is the best news that I have heard in a long, long time. Terry has been put through a wringer and managed to come out the other side relatively unscathed. I am so glad that it is finally approaching the end for this man, he certainly didn't deserve all of the b.s. Tonight we have a reason to be happy frogs!!! Peace...j.b.

[chi_guy]

This thread should be required reading. Nice work Hib and greetings counselor from one of those guys on the table to your left.

 

PB, you often raise interesting points. However I often find myself yelling: Because it's just understood to be that way- you didn't sit through 3 years of torture and the life long trauma that is the Bar exam. Trust me, I believe you have the better end of the bargain because lawyers are such a pain and it so constricts the mind. However it does enable better understanding of certain things- like that court documents are public record so the filing of those documents made them public and thus the criminal penalties associated with nondisclosure are null- are so obvious to lawyers we do not even challenge our assumptions: But the discourse flows a lot smoother.

 

Anyway, Michael, Hib, and PB (and anybody else who has a well thought out opinion) do you have any thoughts on exactly what the doctors will be required to prove. In other words, WHAT exactly constitutes a bona-fide doctor-patient relationship?

 

Thanks!

 

Here's my piece on this. I'm not sure about the AD, but the way I see it in cases involving registered cardholding patients they shouldn't be able to question a patient's certification. A registered patient is presumed to be engaged in medical use unless prosecution brings evidence that the conduct relating to the marihuana was not to alleviate the patient's condition. So they have to have Evidence that the patient wasn't using it to relieve their condition or it is presumed to be medical use in accordance with the act

 

section 4d

 

(d) There shall be a presumption that a qualifying patient or primary

caregiver is engaged in the medical use of marihuana in accordance with this act if

the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the

amount allowed under this act. The presumption may be rebutted by evidence that

conduct related to marihuana was not for the purpose of alleviating the qualifying

patient's debilitating medical condition or symptoms associated with the

debilitating medical condition, in accordance with this act.

 

They really have no right question the doctor patient relationship in cases involving patients or caregivers. It makes no sense why the patient should be faulted if the doctor somehow abused his or her authority. How do they even have the right to question a doctor who signs prescriptions for lethal drugs for recommending a medicine that is non lethal?

[peanutbutter]

PB, you often raise interesting points. However I often find myself yelling: Because it's just understood to be that way- you didn't sit through 3 years of torture and the life long trauma that is the Bar exam. Trust me, I believe you have the better end of the bargain because lawyers are such a pain and it so constricts the mind. However it does enable better understanding of certain things- like that court documents are public record so the filing of those documents made them public and thus the criminal penalties associated with nondisclosure are null- are so obvious to lawyers we do not even challenge our assumptions: But the discourse flows a lot smoother.

 

Anyway, Michael, Hib, and PB (and anybody else who has a well thought out opinion) do you have any thoughts on exactly what the doctors will be required to prove. In other words, WHAT exactly constitutes a bona-fide doctor-patient relationship?

 

Thanks!

 

My argument hinged upon common usage of words vs words defined within the law.

 

When it is defined within the law you don't apply common usage.

 

example "medical use"

 

It seems to be a weak argument. I was hoping to flesh it out better. Which might still be possible to do.

 

So I shifted to what would seem more productive and tried to flesh out the best way to preserve these protections as long as possible. The more people here that seem to agree, I figure would be the most productive method. Or at least pretty good.

 

I've been starting to see some attention to the issue in court cases.

 

If we can get this protection respected, we can keep the doctors out of court. Or at least reduce the numbers of times there are required to testify.

[peanutbutter]

Here's my piece on this. I'm not sure about the AD, but the way I see it in cases involving registered cardholding patients they shouldn't be able to question a patient's certification. A registered patient is presumed to be engaged in medical use unless prosecution brings evidence that the conduct relating to the marihuana was not to alleviate the patient's condition. So they have to have Evidence that the patient wasn't using it to relieve their condition or it is presumed to be medical use in accordance with the act

 

section 4d

 

(d) There shall be a presumption that a qualifying patient or primary

caregiver is engaged in the medical use of marihuana in accordance with this act if

the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the

amount allowed under this act. The presumption may be rebutted by evidence that

conduct related to marihuana was not for the purpose of alleviating the qualifying

patient's debilitating medical condition or symptoms associated with the

debilitating medical condition, in accordance with this act.

 

 

And if the PA doesn't have any evidence, then the case is not subject to prosecution.

 

It is against the law to prosecute the case.

 

They must have the doctor to show the usage was not what the doctor said. That requires the doctor to be there.

 

That requires the patient to provide the doctor to question. Without the patient divulging that information the PA could not know who to call to court.

 

The patient is the only person that could wave rights and provide this information that could result in convicting themselves in court.