Afirmitive Defence

[shazam]

Has anyone tryed to use a afirmitive defence, And had any luck?

[old-hobo]

yes it does. I got a possession charge last july (09)and had a c.a l. and went to court and showed papers and it got dropped apr.1 2010. other than pleading NOT GUILTY,i never saw the judge.

[+Annnie]

Shazam.. remember to use the AD you must establish and prove the three pronged defense..

1. You have a qualifying condition and a Dr has said you could benifit theraputically or pallitive from MM.

2. You have a bona fide relationship with the dr who said this.

3. You do not possess more than is resonably nessecary to Treat your condition..

 

I already sent you the link on bonafide relationship.. Sending prayers your way..

[bobandtorey]

... Physicians who prescribe medications via the Internet shall establish, or have established, a valid patient-physician relationship

 

 

they seam to only be talking about the Internet Doc's

[+Annnie]

sigh.. well maybe shazam needs to revisit his qualifying physician for a followup and let them know about the result of his medication to date and bring additional records from his reg dr if he has them.. And then the qualifying physician could reassess if the MM is helping him.. And he could potentially talk to the dr about helping him in court..

[Hibbyhibby]

Shazam.. remember to use the AD you must establish and prove the three pronged defense..

1. You have a qualifying condition and a Dr has said you could benifit theraputically or pallitive from MM.

2. You have a bona fide relationship with the dr who said this.

3. You do not possess more than is resonably nessecary to Treat your condition..

 

I already sent you the link on bonafide relationship.. Sending prayers your way..

 

 

Annnie, would you please send the link to me on the bona-fide dr./patient relationship? I'm defending a few people using the AD up in Roscommon/Grayling area (being intentionally vague to protect my client's privacy) and would like to get as much info on this issue as I believe it will be the crux of the prosecution's response to the motion I will be filing at some point in the near future.

 

Kirk aka Hibby

[bobandtorey]

Annnie, would you please send the link to me on the bona-fide dr./patient relationship? I'm defending a few people using the AD up in Roscommon/Grayling area (being intentionally vague to protect my client's privacy) and would like to get as much info on this issue as I believe it will be the crux of the prosecution's response to the motion I will be filing at some point in the near future.

 

Kirk aka Hibby

 

http://www.telehealthlawcenter.org/?c=177&a=1946

[+Annnie]

Annnie, would you please send the link to me on the bona-fide dr./patient relationship? I'm defending a few people using the AD up in Roscommon/Grayling area (being intentionally vague to protect my client's privacy) and would like to get as much info on this issue as I believe it will be the crux of the prosecution's response to the motion I will be filing at some point in the near future.

 

Kirk aka Hibby

Bob and torey sent the link .. thanks guys.. But i would also like to add that someone added a link on here say about a month ago that was supposed to be a guide for lawyers to effectively use an aff defense for their clients.. I printed that link out and have it in my briefcase in a paper form. I cannot say forsure but it seems to me it was micheal korman.. There was also a link for the form to send to the judicial tenure commity posted on the same thread.. If i was mr keil i would have printed that as the kalkaska rulings seem to not follow the intent or spirit of the law.. Imo. And you may want to find the link as well that is the directive (or whatever) From the attorney general to the mdch speaking on if they were allowed to privatize the program or not.. The comments towards the end of that letter speak of the spirit of the law being liberally used in cases where judges need to interpret the law in regards to Peoples initiatives.. (welch foods?) LOL but im no lawyer.. Or techie so if someone else has these links please add them for the good counselor.

[shazam]

Annnie, would you please send the link to me on the bona-fide dr./patient relationship? I'm defending a few people using the AD up in Roscommon/Grayling area (being intentionally vague to protect my client's privacy) and would like to get as much info on this issue as I believe it will be the crux of the prosecution's response to the motion I will be filing at some point in the near future.

 

Kirk aka Hibby

thx for the prayer.

[Hibbyhibby]

Bob and torey sent the link .. thanks guys.. But i would also like to add that someone added a link on here say about a month ago that was supposed to be a guide for lawyers to effectively use an aff defense for their clients.. I printed that link out and have it in my briefcase in a paper form. I cannot say forsure but it seems to me it was micheal korman.. There was also a link for the form to send to the judicial tenure commity posted on the same thread.. If i was mr keil i would have printed that as the kalkaska rulings seem to not follow the intent or spirit of the law.. Imo. And you may want to find the link as well that is the directive (or whatever) From the attorney general to the mdch speaking on if they were allowed to privatize the program or not.. The comments towards the end of that letter speak of the spirit of the law being liberally used in cases where judges need to interpret the law in regards to Peoples initiatives.. (welch foods?) LOL but im no lawyer.. Or techie so if someone else has these links please add them for the good counselor.

 

bobandtorey: Thanks.

 

Annnie: Thanks to you as well. If it's not an imposition of your time, could you take a look at the papers you printed off re: AD for lawyers. It may have the actual link on the document somewhere. That would save me a whole lot of digging when I don't have a whole lot of time. I'm confident in my ability to argue the case with the info I have at hand, but it's always good to see if there's another/better way to go. Don't worry about it if it's not on the document you printed. I'll figure out another way to get the info.

 

I did read the article linked to, and have saved it in my bookmarks. It does have some good information in there, and the documents cited and relied upon are persuasive, a lot is going to come down to my Judge. To my knowledge this issue hasn't been presented in front of him before, so I really don't know what to anticipate. I will certainly keep everyone advised as appropriate.

[+kurt klaas]

I do not know if this suggestion will help, but the California Medical Association on their web site has some pages devoted specifically to detailing what a bona fide doctor-patient relationship is. Californian's statute, like Michigan's, fails to detail what that relationship is. I would think their description is authoritative.

 

Kurt

[shazam]

yes it does. I got a possession charge last july (09)and had a c.a l. and went to court and showed papers and it got dropped apr.1 2010. other than pleading NOT GUILTY,i never saw the judge.

 

 

I am dealing with a court in Cheyboygan. Not so easy there.

[shazam]

Shazam.. remember to use the AD you must establish and prove the three pronged defense..

1. You have a qualifying condition and a Dr has said you could benifit theraputically or pallitive from MM.

2. You have a bona fide relationship with the dr who said this.

3. You do not possess more than is resonably nessecary to Treat your condition..

 

I already sent you the link on bonafide relationship.. Sending prayers your way..

Yes i past that on to my Attorney. thx

and thx for your prayers.

I realy cant beleave that the courts can pressure you and threated to put you in jail.

Way to much power for a few people to be able to lock you up like a dog.

[shazam]

sigh.. well maybe shazam needs to revisit his qualifying physician for a followup and let them know about the result of his medication to date and bring additional records from his reg dr if he has them.. And then the qualifying physician could reassess if the MM is helping him.. And he could potentially talk to the dr about helping him in court..

 

 

Yes i am getting recertified by Dr Bob, He is going to stand up in court for me.

[bobandtorey]

Yes i am getting re certified by Dr Bob, He is going to stand up in court for me.

 

 

Well we went to the same Doc to get are renewal as be for the THC-F so that we were sure we had are ducks in a roll

if the Doctor's start standing up inn court then it will become the norm

[bobandtorey]

bona fide relationship thing has been in court for as long as courts have been in service that is why the PA is changeling it

she knows that it will go to the supreme court

[+RevThad]

I have to agree, the worst thing to encourage is doctors having to appear in court, definitely don't want that to become standard operating procedure. Just as there is no expectations of a doctor being called in to court because he wrote an Rx for vicodin or some other medication. The certification itself states that the recommendation is based on a bona fide relationship, aka (has reviewed medical records, conducted a physical exam, discussed the qualifying condition(s), and the pros and cons of the recommended treatment). These are licensed professionals, signing their names (and reputations) on their recommendations, the state (PAs and judges) need to recognize and respect such licensing. Anyways, at worst a doctor could be asked to file an affidavit, stating exactly what they did on the certification recommendation.

 

Just my opinion. We must protect the doctors and patients, and allowing every PA in the state to go on witch hunts questioning these licensed professionals simply is not acceptable.

[bobandtorey]

calling are Doctor a Pot Doc needs to change also the PA wanted are Med Records from the start of all of this BS

 

we have nothing to hid it's just the point off it if we had gave them up at first that to would become the norm

 

that is some of the things going on here with the courts we can not give them any thing as to help them

 

they would take it and Run Run Run with it

[shazam]

Yes i agree about having Doctors standing up in court. They should not have to do that.

 

I have a very well written letter from the MMMa , who did certify me in Southfeild.

But the PA is saying this is hearsay. and the Gudge wont even see it.

I think they are doing this because i live 3.5 hrs from the courts,and so does the MMMA.

And they know that it would be almost inpossible to get my Origanal Doc there.

[Hibbyhibby]

I have to agree, the worst thing to encourage is doctors having to appear in court, definitely don't want that to become standard operating procedure. Just as there is no expectations of a doctor being called in to court because he wrote an Rx for vicodin or some other medication. The certification itself states that the recommendation is based on a bona fide relationship, aka (has reviewed medical records, conducted a physical exam, discussed the qualifying condition(s), and the pros and cons of the recommended treatment). These are licensed professionals, signing their names (and reputations) on their recommendations, the state (PAs and judges) need to recognize and respect such licensing. Anyways, at worst a doctor could be asked to file an affidavit, stating exactly what they did on the certification recommendation.

 

Just my opinion. We must protect the doctors and patients, and allowing every PA in the state to go on witch hunts questioning these licensed professionals simply is not acceptable.

 

Good points, Good Rev. Playing devil's advocate, couldn't a dr. be called into court to testify about a vicodin prescription if it's believed the patient is using the medication improperly (and therefore illegally?).

 

Regarding a dr.'s affidavit, here's how the motion process works: The defendants attorney files a Motion to Dismiss (and usually a Brief in Support of Motion to Dismiss) based upon the law as applied to the facts of the case. Attached to the Motion itself would be the affidavit of the dr. giving the appropriate testimony. You need the affidavit to get you in the door. However, the prosecution has the right to test and/or challenge the evidence supporting the Motion to Dismiss when argued at the hearing. Obviously this is done through cross-examination. Well, you can't cross-examine a piece of paper. Some defense attorneys would bring the dr. in on their own, as in person testimony is often more persuasive and effecting than a simple affidavit. Others will make the prosecution use the Courts subpoena power to compel the dr. to testify, relying on the affidavit itself. It really a strategic decision, but strategic or not, someone is going to have the dr. testify.

 

Here's one last thing about an affidavit that many people don't understand: I've never seen one that doesn't have the affiant state something along the lines of "If called, Affiant is competent to testify to the contents sworn to herein." With such statement, the Affiant is acknowledging that they could be called to testify in person. Even in the absence of such language, a person signing an affidavit tacitly agrees that they can and will back their statements up in Court. Also, understand that in the absence of a charge against a patient there would be no need to get the affidavit from the dr. in the first place. As such, when the dr. signs the affidavit, said dr. understands that LEO is involved and the dr. is likely going to have to testify. So not only will the dr. be compelled to testify by someone, but upon signing the affidavit is agreeing to do so.

[+RevThad]

Great points Kirk.

 

Tactically speaking couldn't one use the original recommendation (certification) in lieu of an affidavit, and possibly push the harassing of the doctor off as long as possible? Just like a patient would be able to show a copy of their Rx as proof of a bona fide doctor/patient relationship in their acquiring of a drug like vicodin?

 

Calling in of doctors to double verify such a recommendation seems to be prejudicially slanted against those that recommend mmj. Further forcing a doctor to close their practice for a day to drive to whichever part of the state, an alleged infraction occurred, to answer 4 questions, seems draconian and a way for the anti-medical marijuana PAs to intimidate doctors into avoiding making such recommendations.

 

Again on the devil's advocate side of things, if a judge were to rule that such a doctor made a recommendation in a manner that was not in the course of a bona-fide doctor-patient relationship, would that open up all of that doctors recommendations up for scrutiny? Could an over-zealous PA then subpoena the records of all recommendations by that doctor?

[old-hobo]

I dont understand WHY any person would open their med. records up to scrutiny. what ever happened to PT/DR privaledges. I dont care what a judge says, my med recs are closed to all P.A.s and these zellous judges. When I went through my court case, my lawyer called me and asked for my records and said HELL NO, that is private info between me and my Dr. end of story..............

[bobandtorey]

I dont understand WHY any person would open their med. records up to scrutiny. what ever happened to PT/DR privileges. I don't care what a judge says, my med recs are closed to all P.A.s and these zealous judges. When I went through my court case, my lawyer called me and asked for my records and said HELL NO, that is private info between me and my Dr. end of story..............

 

 

That is what we said and you see were we are now but i would not haved change any thing

[phaquetoo]

I had to deal with the roscomon court on mm, I got off

 

I didnt even apply for my card till after i got a possesion charge, when the 20 days were past, I showed my attny all of my paperwork, he showed it to the roscomon prosecutor, and charges were droped than and there!

 

Good luck to you and yours!

Peace

FTW

Jim

[shazam]

I dont understand WHY any person would open their med. records up to scrutiny. what ever happened to PT/DR privaledges. I dont care what a judge says, my med recs are closed to all P.A.s and these zellous judges. When I went through my court case, my lawyer called me and asked for my records and said HELL NO, that is private info between me and my Dr. end of story..............

My case in Cheyboygan is not going well. I think this is the only way. WHAT ELSE CAN I DO.