Dismissal Sought In Marijuana Case

[+RevThad]

The law specifically states that the AD is to be used at an evidentiary hearing. Thus, allowing "reasonable amounts" to go to the jury is contrary to the law. The judge decides the issue of the AD.

I agree, mostly. Is it possible that a judge might allow a jury to decide whether a quantity is reasonable or not? Perhaps, if defense chooses not to raise a motion to dismiss based on the AD, or if the judge refuses to dismiss because of a lack of credible evidence either way, a judge could decide to allow defense to raise the AD during a jury trial in addition to the evidentiary hearing... With judges these days, I take nothing for granted

 

As far as an 'iota of evidence" shifting the burden, that's simply not true. The burden of proof is preponderance in the evidentiary hearing. It is the easiest burden for someone to meet in a court of law. The presentation of evidence does not shift the burden--the moving party still has the burden to prove by a preponderance. Furthermore, evidence presented doesn't necessarily prove anything. An "iota of evidence" could prove nothing at all. The judge conducts the hearing and determines the veracity of the evidence, be it testimonial, physical, etc. Presenting evidence doesn't do anything for you unless that evidence tends to either prove or help prove your case by a preponderance. Evidence can be more or less credible and be given more or less weight depending on what the judge sees as the veracity of the evidence. With that in mind remember that the prosecutor can voir dire a witness and otherwise challenge evidence presented by the defendant as well as present their own witnesses and evidence.

Indeed, the burden is on the person making the motion. That however does not take the burden off of the prosecutor, who still needs to show that regardless of what defense is presenting that a crime was committed (potentially committed?). Further, the prosecution would have to show "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."

 

As far as reasonable amounts go you cannot adopt section 4 amounts as reasonable just because you want to. Section 4 fixes an arbitrary amount that a cardholder may possess. It doesn't state that the amount is reasonable it just states that it is the amount you may possess. It can be viewed as an upper limit rather than a reasonable amount. It is a fixed amount that is likely designed to keep cardholders safe so there isn't a flood of litigation. Imagine if section 4 told us we could possess a reasonable amount rather than a fixed amount. Every Tom, Dick, and Harry would be dragged into court by overzealous prosecutors arguing that WHATEVER amount we had was unreasonable. If I suffer migraine headaches twice a year, on average, and smoking one joint cures it then a reasonable amount on-hand for me would be probably 2 to 4 joints. In that respect it could be argued that 2.5oz is unreasonable. If sec.8 were designed to "goto" sec. 4 as to the reaonableness of your first 2.5 oz then why not just state in sec. 8 that you may possess 2.5oz OR a reasonable amount. And, yes, I do know that my position on this must mean I want patients jailed, right?

Seeing as there are no other quantities stated in the law, one could use the limits stated in Section 4 as a guideline (sort of an upper limit, which is the reason that the AD was triggered in the first place.). On the same point, one could easily show that the Federal government actually supplies 8.6 ounces a month to the patients in the IND program, and that could be used as a guideline as to what is reasonable. I will concede the fact that each case is independent of the others as to what is reasonable to treat their condition(s), and that access to growing is another factor that must be taken into account to meet the "uninterrupted availability of marihuana" portion of the test.

 

As far as saying a defendant is being required to supply the PA with evidence to convict themselves----huh? You don't understand the Michigan Rules of Evidence. The MMA tells us that we need a dr. to recommend mj. That means a dr., in theory, has reviewed our file and decided mj would help us. That is a requirement of sec. 8. If I, as the defendant, get on the stand and testify myself that mj would help me then that is NOT a dr. testifying. In order to prove the element listed in sec. 8(a)(1) I need some other evidence. If I want to convince the judge to the level of a preponderance then MY testimony, as a layperson, is useless. It's useless 1. Because I am a layperson trying to give a medical opinion and the PA would be ALL over that objecting as to my qualifications (see MRE 701) and, more importantly, 2. Because I cannot testify as to what the Dr. told me. That's called hearsay. It's inadmissible (see MRE 802). So, I need the Dr. there or I need a copy of my medical records admitted which show the Dr. recommended mj to me (med. records are an exception to the hearsay rule).

 

Now, with that said, consider this--you DON'T have to have your dr. testify and you DON'T have to give your med records or Dr's name to the PA. But, guess what, if you DON'T then there is no other way to establish the necessary element contained in sec.8(a)(1).

Doesn't a valid card from the MDCH registry program already declare such? How about the certification from the doctor? Both of those seem to meet the requirement of Section 8 (a)(1), without any other required proof, as we are just talking about a preponderance of evidence.

 

Just my simple layman's opinions....

[DenturesLost]

Doesn't a valid card from the MDCH registry program already declare such? How about the certification from the doctor? Both of those seem to meet the requirement of Section 8 (a)(1), without any other required proof, as we are just talking about a preponderance of evidence.

 

Just my simple layman's opinions....

If you are arguing and assuming the premise that the pt has a card then yes. However, because you are using the AD it is safe to assume that you either a) don't have a card, or b) do have a card but were over your weight limit.

 

If you don't have your card but do have a cert. then, in theory, you could use your cert. However, that kind of defeats the purpose of NOT disclosing the dr. now doesn't it? So what's to stop the PA from issuing a subpoena to the dr. so as to authentic the document? Nothing.

 

If you have your card and it is authenticated (eg: determined still valid) then I would agree, that could be used to help prove the requirement in 8(a)(1). However, I don't think it would necessarily be definitive.

[peanutbutter]

edit .. see that folks already got there.

[DenturesLost]

Indeed, the burden is on the person making the motion. That however does not take the burden off of the prosecutor, who still needs to show that regardless of what defense is presenting that a crime was committed (potentially committed?). Further, the prosecution would have to show "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."

 

 

As we are discussing the evidentiary hearing here there is NO burden on the prosecutor.

[peanutbutter]

edit .. already covered

[DenturesLost]

 

If a patient has a ID card it could be introduced as evidence. The only way someone can get a ID card from the state is fot that letter to have been submitted to the state. The ID card is evidence that a doctor has indeed said exactly what is required. Nothing in part (a) (1) requires that the doctor must testify. If zero evidence is presented by the PA that counters, then the preponderance belongs to the defendant, at that time. This element has then been satisfied.

Not so fast. The card can be used as evidence but the existence of the card doesn't PROVE anything by a preponderance. A chain is only as good as its weakest link. The card proves that a defendant submitted the paperwork, that's all. The MDCH doesn't vet the paperwork or authenticate the dr's recommendation. The card is as strong as the recommendation itself. If you submitted the recommendation as evidence then the PA could voir dire the document. The PA cannot voir dire the card in the same way. In that sense it is questionable as to whether it would be admitted as evidence as it may be ruled hearsay. However, even if admitted, you cannot impose on the court the standard (whatever it may be) that is used by the MDCH. In other words if the MDCH accepts a recommendation as proof just based on the fact that it has a sloppy signature and a license number that doesn't mean the court has to accept that as a preponderance of evidence that the dr. actually made the rec. The court's standards are higher.

[herb green]

Not so fast. The card can be used as evidence but the existence of the card doesn't PROVE anything by a preponderance. A chain is only as good as its weakest link. The card proves that a defendant submitted the paperwork, that's all. The MDCH doesn't vet the paperwork or authenticate the dr's recommendation. The card is as strong as the recommendation itself. If you submitted the recommendation as evidence then the PA could voir dire the document. The PA cannot voir dire the card in the same way. In that sense it is questionable as to whether it would be admitted as evidence as it may be ruled hearsay. However, even if admitted, you cannot impose on the court the standard (whatever it may be) that is used by the MDCH. In other words if the MDCH accepts a recommendation as proof just based on the fact that it has a sloppy signature and a license number that doesn't mean the court has to accept that as a preponderance of evidence that the dr. actually made the rec. The court's standards are higher.

 

 

Actually the law is....A valid registry card + less than 2.5oz per/patient = medical use

 

Which is the intent of the law

 

The card might be found to be hearsay ? WTF?

 

The card....a valid one + less than 2.5oz is the standard set forth by the new law

 

Its actually a very simple clear law....some people just don't like it

[+RevThad]

As we are discussing the evidentiary hearing here there is NO burden on the prosecutor.

One would assume that the prosecutor is going to try and rebut the evidence provided by defense supporting the elements of 8(a). One would further assume that prior to such a hearing that a prosecutor would have to present some evidence showing a crime may have been committed, otherwise the entire procedure is moot anyways.

 

If already to the evidentiary hearing involving the motion to dismiss, and the defendant possesses a valid registry id card, one could assume that it is based on conduct or quantities, not qualification. Further, I see no place in the law that allows for the qualification to be rebutted. However, some PAs are attempting to do just that. Even allowing for that line of questioning throws the entire law out the window, and gives LEO and prosecutors a wild card to harass patients, caregivers, and doctors. It would go something along the lines of arrest anybody with a card or not, force them to call their doctor in, hope that "the state's" expert is better on the stand than the certifying doctor. Such an attack would be the norm in some counties. Good faith only goes so far, and is easily abused by those that disagree with the law.

 

In another post, you suggest that the card does not prove anything. Is a drivers license just a piece of plastic? How about a state id? There are certain qualifications required to receive any of those, and they are certified by various departments of the state government. Not only that but the license and registry card have another similarity, they both require an outside body to qualify the applicant. The DL requires at least one driving test administered by somebody that certifies you passed (qualified), and the registration card has a licensed doctor certifying to the state that the applicant is qualified. I would love to see them start forcing people to bring their driving instructors in to testify that the accused did indeed pass the test...

[DenturesLost]

 

If already to the evidentiary hearing involving the motion to dismiss, and the defendant possesses a valid registry id card, one could assume that it is based on conduct or quantities, not qualification. Further, I see no place in the law that allows for the qualification to be rebutted.

 

 

I do.

 

 

1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

 

 

The AD itself requires certain elements be met. Read 1) above. Since all of those elements must be met they are all subject to attack by the PA.

[peanutbutter]

Not so fast. The card can be used as evidence but the existence of the card doesn't PROVE anything by a preponderance. A chain is only as good as its weakest link. The card proves that a defendant submitted the paperwork, that's all. The MDCH doesn't vet the paperwork or authenticate the dr's recommendation. The card is as strong as the recommendation itself. If you submitted the recommendation as evidence then the PA could voir dire the document. The PA cannot voir dire the card in the same way. In that sense it is questionable as to whether it would be admitted as evidence as it may be ruled hearsay. However, even if admitted, you cannot impose on the court the standard (whatever it may be) that is used by the MDCH. In other words if the MDCH accepts a recommendation as proof just based on the fact that it has a sloppy signature and a license number that doesn't mean the court has to accept that as a preponderance of evidence that the dr. actually made the rec. The court's standards are higher.

 

What's the difference between evidence and proof?

[DenturesLost]

What's the difference between evidence and proof?

Evidence doesn't equal proof. Evidence, according to the MRE, must be relevant evidence to be admissible. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

In the current discussion the burden of proof is by a preponderance of the evidence. That means there has to be enough evidence to meet that burden. Just because evidence is introduced it does not mean that the evidence will prove anything by a preponderance.

[peanutbutter]

Evidence doesn't equal proof. Evidence, according to the MRE, must be relevant evidence to be admissible. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

In the current discussion the burden of proof is by a preponderance of the evidence. That means there has to be enough evidence to meet that burden. Just because evidence is introduced it does not mean that the evidence will prove anything by a preponderance.

 

50.000000001 percent .. correct?

 

The PA side would be required to undermine that slight advantage by evidence. Correct?

[peanutbutter]

Evidence doesn't equal proof. Evidence, according to the MRE, must be relevant evidence to be admissible. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

In the current discussion the burden of proof is by a preponderance of the evidence. That means there has to be enough evidence to meet that burden. Just because evidence is introduced it does not mean that the evidence will prove anything by a preponderance.

 

You believe the ID card would not be substantial evidence that a doctor had indeed made that statement??????

 

Much much larger than that 50.0000001 stuff. Much larger.

[DenturesLost]

You believe the ID card would not be substantial evidence that a doctor had indeed made that statement??????

 

Much much larger than that 50.0000001 stuff. Much larger.

You tell me. Does possession of a card prove a dr. made the statement or does it prove that a signed statement was submitted. If the MDCH actually checked on the recommendations then the card would tend to show that the dr. made the statement. But they don't investigate it so how does the card prove it? It doesn't. All it proves is that the paperwork was submitted and looked to be in order with a visual inspection.

 

What you are saying is that the court should be satisfied by the level of proof required by the MDCH and should adopt the MDCHs method for vetting (or lack thereof) the document and let that substitute for the attorney's opportunity to voir dire the document. If the document were presented in court then the PA has the opportunity to conduct voir dire. But they can't and that is why it should be ruled hearsay.

 

Furthermore, the standard required under the AD requires the defendant to prove things that are not required for the card. The defendant has to prove, under 8(a)(1), that there was a bonafide dr/pt relationship. They also have to complete a full assessment of the defendant's medical history. None of that is mentioned nor required to get the card. So even if the card were admitted to prove the dr/pt relationship it still doesn't prove everything listed.

[+RevThad]

I do.

 

 

1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

 

 

The AD itself requires certain elements be met. Read 1) above. Since all of those elements must be met they are all subject to attack by the PA.

That information is already certified by a licensed physician...

 

CERTIFICATION, SIGNATURE, & DATE: (REQUIRED)

I hereby certify that I am a physician licensed to practice medicine in Michigan. I have responsibility for the care and treatment for the above-named patient. It is my professional opinion that the applicant has been diagnosed with a debilitating medical condition as indicated above. The medical use of marihuana is likely to be palliative or provide therapeutic benefits for the symptoms or effects of applicant’s condition. This is not a prescription for the use of medical marihuana. Additionally, if the patient ceases to suffer from the above identified debilitating condition, I hereby certify I will notify the department in writing.

 

Allowing PAs to attack on that premise for registered patients, is nothing short of a free pass to ignore the protections of Section 4 for card holders, allowing them to arrest anybody and simply attack based on the doctor-patient relationship which is already certified with the state... It would open the doors to certain overzealous prosecutors to, an arrest em all and let the courts sort it out, legal way to ignore the rest of the law. Clearly that is not the intent of the law... The side effects would likely be devastating to the legal medical marijuana community and the physicians that serve it. A busy medical marijuana doctor, might wind up spending half their time in court on such folly; and you know that cost would be passed on to the rest of us; if any doctors were to continue practicing in this field...

[+RevThad]

See page 3 of this... MDCH MMMP Forms.

[Hempcheff]

I thought there was a case (and a video on this site) where the pa and the judge agreed that the doc form is all that is required, setting precedent wasnt it that the doctor need not be called in to court, because his testimony as to the visit is confidential just like any other visit.

 

the point im getting at is a doctor will never have to testify in person because the recommendation = his testimony

[DenturesLost]

I thought there was a case (and a video on this site) where the pa and the judge agreed that the doc form is all that is required, setting precedent wasnt it that the doctor need not be called in to court, because his testimony as to the visit is confidential just like any other visit.

 

the point im getting at is a doctor will never have to testify in person because the recommendation = his testimony

A recommendation is not testimony. Testimony suggests that the court put someone under oath and that cross-examination is possible. You cannot cross-examine a recommendation. What you are suggesting is that anyone can bring in a signed piece of paper and the court should summarily accept that as genuine. There is a reason we have a hearsay rule.

 

RevThad is pointing out the pitfalls to NOT accepting the recommendation in court while ignoring the obvious pitfalls to summarily accepting one. Accepting it without authentication means anyone could print off a form and sign it as long as they know a dr's license number (which, by the way, is easy to obtain off the state licensure website) and that it should never be questioned. Every decision made in court has its pitfalls. However, deciding whether an item of evidence can be admitted is not, and should not, be based on pitfalls. Such a decision is based on rules--specifically the Michigan Rules of Evidence. Any time a human needs to be brought into court to testify to authenticate a document is a time of inconvenience. We don't decide whether something should be admitted or ruled hearsay based on an individual's inconvenience.

 

With all of that said, it is possible a court could accept a card and/or a rec. as evidence of the dr/pt relationship. However, it is also possible that a court would reject those items as hearsay OR accept them into evidence but consider them not dispositive.

[DenturesLost]

That information is already certified by a licensed physician...

 

 

 

Allowing PAs to attack on that premise for registered patients, is nothing short of a free pass to ignore the protections of Section 4 for card holders, allowing them to arrest anybody and simply attack based on the doctor-patient relationship which is already certified with the state... It would open the doors to certain overzealous prosecutors to, an arrest em all and let the courts sort it out, legal way to ignore the rest of the law. Clearly that is not the intent of the law... The side effects would likely be devastating to the legal medical marijuana community and the physicians that serve it. A busy medical marijuana doctor, might wind up spending half their time in court on such folly; and you know that cost would be passed on to the rest of us; if any doctors were to continue practicing in this field...

That simply is not true. If you are relying on the AD then that means you are outside section 4 protections. The point here is that we are assuming the premise that the defendant is using the AD due to violation of section 4.

 

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

[peanutbutter]

You tell me. Does possession of a card prove a dr. made the statement or does it prove that a signed statement was submitted. If the MDCH actually checked on the recommendations then the card would tend to show that the dr. made the statement. But they don't investigate it so how does the card prove it? It doesn't. All it proves is that the paperwork was submitted and looked to be in order with a visual inspection.

 

What you are saying is that the court should be satisfied by the level of proof required by the MDCH and should adopt the MDCHs method for vetting (or lack thereof) the document and let that substitute for the attorney's opportunity to voir dire the document. If the document were presented in court then the PA has the opportunity to conduct voir dire. But they can't and that is why it should be ruled hearsay.

 

Furthermore, the standard required under the AD requires the defendant to prove things that are not required for the card. The defendant has to prove, under 8(a)(1), that there was a bonafide dr/pt relationship. They also have to complete a full assessment of the defendant's medical history. None of that is mentioned nor required to get the card. So even if the card were admitted to prove the dr/pt relationship it still doesn't prove everything listed.

 

You say prove. You keep saying it over and over again.

 

The law says that evidence needs to be introduced.

 

So far, I have agreed with you that this probably represents a preponderance of evidence. Even though the law doesn't say that. The law only says evidence. And that threshold applies to all three elements of the AD.

 

The standard that is being applied, many times, is proof beyond a reasonable doubt. Way more than the law requires with just the introduction of evidence.

[bobandtorey]

That simply is not true. If you are relying on the AD then that means you are outside section 4 protections. The point here is that we are assuming the premise that the defendant is using the AD due to violation of section 4.

 

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

 

The point here is that we are assuming the premise that the defendant is using the AD due to violation of section 4.

are Doc: was testifying inn court for over 3 hours i have been to other peoples court dates and the judge just wants to see the paper work from the Doc certified

[peanutbutter]

You also say that the parts of the law don't apply when the patient has an ID card.

 

That section four protections don't apply in a section 8 hearing.

 

Doing that you ignore this:

 

(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.

 

Does this presumption go away when the patient is in court? This language indicates activity taking place in court. "A presumption" indicates that this is a court case being presented against a defendant. The effects of section four don't go away because a PA has filed charges.

 

When the patient or caregiver has an ID card, they already have home court advantage. As long as quantities are not in question. That satisfies element three of the AD as long as element 2 has been determined to apply.

 

If there is an ID card, the card is evidence that element one has been satisfied. Not proof, but evidence.

Element two is a determination of fact. Evidence can be introduced from several directions to provide the required evidence.

Element three is presumed, by section four, until there is evidence presented by the PA to rebut, when the defendant has the ID card.

 

Nothing in the law suggests that elements of section 4 no longer apply when you present a section 8 defense.

 

A presumption already exists for a carded patient or caregiver. The ID card is evidence of this presumption.

[DenturesLost]

You say prove. You keep saying it over and over again.

 

The law says that evidence needs to be introduced.

 

So far, I have agreed with you that this probably represents a preponderance of evidence. Even though the law doesn't say that. The law only says evidence. And that threshold applies to all three elements of the AD.

 

The standard that is being applied, many times, is proof beyond a reasonable doubt. Way more than the law requires with just the introduction of evidence.

The law states:

(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).

 

 

The standard of proof at an evidentiary hearing is by a preponderance of the evidence. That means the fact must be proven by a preponderance of the evidence. To suggest that the law doesn't indicate a standard of proof so therefore the standard is some freaky one you are making up is just plain silly. The law also doesn't say the hearing has to be held in court or that a judge must preside so maybe that means we can hold it in my great-grandchild's playhouse in the backyard and have his playmates decide???

 

OR, maybe we can adopt a new standard. We'll call it the "shred of evidence' standard.

 

The law requires an evidentiary hearing. Such a hearing, by definition, utilizes the preponderance standard. "Showing" the evidence doesn't mean to put it on display in a fancy glass-top display box. Nor does it mean to pin it to a victoria secret model to waltz down the runway on the upcoming show on cbs. It means to show the elements and meet the burden of proof. If you didn't meet the burden of proof then you didn't show the elements. Seriously, are you REALLY going to argue otherwise? Are we going down this path again....?

[DenturesLost]

You also say that the parts of the law don't apply when the patient has an ID card.

 

That section four protections don't apply in a section 8 hearing.

 

Doing that you ignore this:

 

 

 

Does this presumption go away when the patient is in court? This language indicates activity taking place in court. "A presumption" indicates that this is a court case being presented against a defendant. The effects of section four don't go away because a PA has filed charges.

 

When the patient or caregiver has an ID card, they already have home court advantage. As long as quantities are not in question. That satisfies element three of the AD as long as element 2 has been determined to apply.

 

If there is an ID card, the card is evidence that element one has been satisfied. Not proof, but evidence.

Element two is a determination of fact. Evidence can be introduced from several directions to provide the required evidence.

Element three is presumed, by section four, until there is evidence presented by the PA to rebut, when the defendant has the ID card.

 

Nothing in the law suggests that elements of section 4 no longer apply when you present a section 8 defense.

 

A presumption already exists for a carded patient or caregiver. The ID card is evidence of this presumption.

This discussion is operating on the premise that the defendant is over limits. So let's stick to the premise and stop trying to confuse the issues.

 

The law states:

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.

 

Therefore the presumption goes away when the defendant/pt is over weight limits.

[peanutbutter]

This discussion is operating on the premise that the defendant is over limits. So let's stick to the premise and stop trying to confuse the issues.

 

The law states:

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.

 

Therefore the presumption goes away when the defendant/pt is over weight limits.

 

I would say that the case revolves entirely around amounts.

 

Note this "does not exceed the amount allowed under this act." It doesn't say "under this section of this act." It's the entire act. And section eight allows for more than section 4 does. Section eight is part of "this act."

 

To eliminate the presumption afforded by the ID card, the PA must introduce evidence. Not a PA belief. Not a PA guess. Not a PA gut feeling. Evidence.

 

If they have Daggit on video selling cannabis on the street corner, that would be evidence. The presumption then goes away.