Dismissal Sought In Marijuana Case

[+RevThad]

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.

Prior to a card being issued, MDCH "The department shall verify the information", which includes the authenticity of the doctor certification; and "notify law enforcement about falsified or fraudulent information submitted to the department." This is the reason there is such a backlog now, at least that is the claim. If the department was just rubber stamping anything that looked legit, the issuance of registry cards would be much more timely.

 

However, lets try a different tact for a moment about the inconvenience angle, since you like analogies. What would happen if every time somebody was in front of a judge for a traffic violation, the PA decided they wanted to question or verify that the accused actually took the initial road test? Should the PA be allowed to call to the stand the driving instructors for each of these cases, or should a state issued drivers license be enough evidence of the accused, at the very minimum, meeting the initial qualifications for receiving the license?

 

Back to the hearsay issue for a moment, thanks for bringing it up as it made me look at the rules covering it. Wouldn't a registry card or doctor's certification be allowed in under Rule 803 (4) and/or (6).

 

Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

 

(4) Statements made for purposes of medical treatment or medical diagnosis in

connection with treatment. Statements made for purposes of medical treatment or

medical diagnosis in connection with treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as reasonably necessary to

such diagnosis and treatment.

 

(6) Records of regularly conducted activity. A memorandum, report, record, or data

compilation, in any form, of acts, transactions, occurrences, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that business

activity to make the memorandum, report, record, or data compilation, all as shown

by the testimony of the custodian or other qualified witness, or by certification that

complies with a rule promulgated by the supreme court or a statute permitting

certification, unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness. The term "business" as used in this

paragraph includes business, institution, association, profession, occupation, and

calling of every kind, whether or not conducted for profit.

 

 

There are other exceptions that would apply as well, but these were the ones that jumped out at me right away, and neither require a doctor to testify... Just some thoughts.

[DenturesLost]

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.

No kidding they have to introduce evidence. That comes at trial. You are putting the cart before the horse and you don't understand what an evidentiary hearing is...

 

The hearing is conducted assuming arguendo that the PA's case is accepted as proven fact. You go into the hearing accepting, for sake of the hearing, that you are over weight limits. It isn't the PA's job to prove you are over weight limits at that point but rather it is the PA's job to allege such. You are arguing that the PA would have to prove you were over limits first. That's simply not how it works. It's called a pre-trial hearing for a reason. You are further arguing that you are afforded the presumption under section 4 because the qualification is that you do, "... not exceed the amount allowed under this act." Basically you are engaging in circular reasoning. You are saying the act allows any weight as long as it is reasonable, my weight was reasonable, therefore it is allowable and I am afforded section 4 protections. What you fail to realize is that whether the weight is reasonable is THE POINT OF THE HEARING!! So you cannot assume for the hearing that the weight is reasonable and therefore assume that you are afforded the presumption at issue.

[DenturesLost]

Prior to a card being issued, MDCH "The department shall verify the information", which includes the authenticity of the doctor certification; and "notify law enforcement about falsified or fraudulent information submitted to the department." This is the reason there is such a backlog now, at least that is the claim. If the department was just rubber stamping anything that looked legit, the issuance of registry cards would be much more timely.

 

However, lets try a different tact for a moment about the inconvenience angle, since you like analogies. What would happen if every time somebody was in front of a judge for a traffic violation, the PA decided they wanted to question or verify that the accused actually took the initial road test? Should the PA be allowed to call to the stand the driving instructors for each of these cases, or should a state issued drivers license be enough evidence of the accused, at the very minimum, meeting the initial qualifications for receiving the license?

 

Back to the hearsay issue for a moment, thanks for bringing it up as it made me look at the rules covering it. Wouldn't a registry card or doctor's certification be allowed in under Rule 803 (4) and/or (6).

 

 

 

There are other exceptions that would apply as well, but these were the ones that jumped out at me right away, and neither require a doctor to testify... Just some thoughts.

First of all, what the rules state and what is actually happening are 2 different things. What if I pointed to the fact that the law states the MDCH shall issue cards within 15 days? Would that be PROOF that they DO issue cards within 15 days? Come on!!! I know first hand because I talked to a representative at the MDCH and was told that verification invloves a visual inspection of the application and supporting materials and THAT'S IT! You can call them and find out for yourself. They do NOT call a dr's office. Their definition of verification is to look at the paper and see that it is filled out. They do not even cross-reference dr's license numbers from what I understand. It is absolutely a rubber-stamp sort of deal. But don't take my word for it, call them.

 

As far as your road test analogy it isn't applicable for a number of reasons. Let's discuss the primary reason. In your analogy the violation, speeding let's say, doesn't require as an element that you be a licensed driver in order to be charged. In fact, you can be driving on a suspended license and still be charged with speeding so how is the road test relevant? Whether you took a road test isn't at issue.

 

As for your hearsay exception citations, I indicated above that some judges would probably allow in the card. However, the card is NOT a medical record and therefore not subject to a medical record hearsay exception. Secondly, you highlighted a portion in the business records exception without paying any regard to another portion, namely "unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness." That is the point of not allowing hearsay, that it is not a trustworthy statement. What you are arguing is that the certification document provided BY THE DEFENDANT to MDCH is trustworthy and genuine by virtue of the fact that it ends up in the hands of the MDCH and they HAVE THE POWER to vet the document. What you are disregarding is that having the power to vet the document and actually doing so are 2 different things.

 

Lastly, and again, even if the card were admitted that is NOT proof of the dr/pt relationship and the necessary elements that must exist under sec.8. It simply is not. As I stated the MDCH does not vet the dr. rec. document. And even if they did we would still need to know exactly what it is they did in order to determine if it was good enough to PROVE anything by a preponderance.

[+RevThad]

First of all, what the rules state and what is actually happening are 2 different things. What if I pointed to the fact that the law states the MDCH shall issue cards within 15 days? Would that be PROOF that they DO issue cards within 15 days? Come on!!! I know first hand because I talked to a representative at the MDCH and was told that verification invloves a visual inspection of the application and supporting materials and THAT'S IT! You can call them and find out for yourself. They do NOT call a dr's office. Their definition of verification is to look at the paper and see that it is filled out. They do not even cross-reference dr's license numbers from what I understand. It is absolutely a rubber-stamp sort of deal. But don't take my word for it, call them.

 

As far as your road test analogy it isn't applicable for a number of reasons. Let's discuss the primary reason. In your analogy the violation, speeding let's say, doesn't require as an element that you be a licensed driver in order to be charged. In fact, you can be driving on a suspended license and still be charged with speeding so how is the road test relevant? Whether you took a road test isn't at issue.

 

As for your hearsay exception citations, I indicated above that some judges would probably allow in the card. However, the card is NOT a medical record and therefore not subject to a medical record hearsay exception. Secondly, you highlighted a portion in the business records exception without paying any regard to another portion, namely "unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness." That is the point of not allowing hearsay, that it is not a trustworthy statement. What you are arguing is that the certification document provided BY THE DEFENDANT to MDCH is trustworthy and genuine by virtue of the fact that it ends up in the hands of the MDCH and they HAVE THE POWER to vet the document. What you are disregarding is that having the power to vet the document and actually doing so are 2 different things.

 

Lastly, and again, even if the card were admitted that is NOT proof of the dr/pt relationship and the necessary elements that must exist under sec.8. It simply is not. As I stated the MDCH does not vet the dr. rec. document. And even if they did we would still need to know exactly what it is they did in order to determine if it was good enough to PROVE anything by a preponderance.

IF they are not vetting materials provided to them (MDCH), then they are not following the law or their own rules. As the law states they "shall verify" the information. Their own rules state that verification includes:

© Verifying that a physician is licensed to practice in the state.

(d) Contacting the certifying physician directly to confirm the validity

of the written certification.

 

As of the 12th of this month they report "8,774 applications denied -- most due to incomplete application or missing documentation." Which suggests that they are denying at least some due to a reason other than incomplete applications or missing documentation. They are vetting something. The number of applications that have been denied is 12% of the total new and renewal applications received, or 21% of the total cards issued to patients, this is not an insignificant number.

 

There are provisions in the law to handle the 15 day issues, and I guarantee they are getting out denial letters in a relatively timely manner.

 

Now back to the driving example, fine let us make it more specific. A person is stopped at a roadblock, they are charged with operating a vehicle without a license, when finally in front of the judge they present their valid state issued drivers license. Can the PA call in the driving instructor to question whether the accused actually qualified for the license that was issued by the state, or is the license enough proof of the initial qualification? Would the drivers license be excluded under the hearsay rules? Could a prosecutor who is anti-vehicle use, start having all drivers charged regardless of whether they have a license or not and challenge those licenses based on whether or not there was an actual instructor-student relationship or even on the merits of the qualifying tests?

 

There are licensing boards that oversee the practices of doctors. There are regulation in place both to control the physician and the MDCH when it comes to medical marijuana. There are penalties in other laws and in the MMMAct regarding providing false representations to avoid arrest and prosecution. Checking the validity of a registry id, or doctor's certification is an easy enough task for both sides of a criminal case, and unless there is specific proof that either is false, they should be treated as valid.

 

Just out of curiosity, what part of the registration process is "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."? Are you suggesting that the state run regulating agency (aka MDCH), is not a trustworthy source, or is it the method that wouldn't be seen as trustworthy, in the eyes of a court?

[DenturesLost]

IF they are not vetting materials provided to them (MDCH), then they are not following the law or their own rules. As the law states they "shall verify" the information. Their own rules state that verification includes:

 

 

As of the 12th of this month they report "8,774 applications denied -- most due to incomplete application or missing documentation." Which suggests that they are denying at least some due to a reason other than incomplete applications or missing documentation. They are vetting something. The number of applications that have been denied is 12% of the total new and renewal applications received, or 21% of the total cards issued to patients, this is not an insignificant number.

 

There are provisions in the law to handle the 15 day issues, and I guarantee they are getting out denial letters in a relatively timely manner.

 

Now back to the driving example, fine let us make it more specific. A person is stopped at a roadblock, they are charged with operating a vehicle without a license, when finally in front of the judge they present their valid state issued drivers license. Can the PA call in the driving instructor to question whether the accused actually qualified for the license that was issued by the state, or is the license enough proof of the initial qualification? Would the drivers license be excluded under the hearsay rules? Could a prosecutor who is anti-vehicle use, start having all drivers charged regardless of whether they have a license or not and challenge those licenses based on whether or not there was an actual instructor-student relationship or even on the merits of the qualifying tests?

 

There are licensing boards that oversee the practices of doctors. There are regulation in place both to control the physician and the MDCH when it comes to medical marijuana. There are penalties in other laws and in the MMMAct regarding providing false representations to avoid arrest and prosecution. Checking the validity of a registry id, or doctor's certification is an easy enough task for both sides of a criminal case, and unless there is specific proof that either is false, they should be treated as valid.

 

Just out of curiosity, what part of the registration process is "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."? Are you suggesting that the state run regulating agency (aka MDCH), is not a trustworthy source, or is it the method that wouldn't be seen as trustworthy, in the eyes of a court?

Like I said, call the MDCH and get it from the horses mouth. Whether the MDCH is following their own rules is not relevant. What is relevant to the discussion is whether they are vetting apps. As I indicated they ARE visually inspecting them. That accounts for the denials based on incomplete data. They are NOT calling the dr's offices. Don't take my word for it, ask the MDCH.

 

Your drivers license analogy is still flawed and wouldn't matter even if it weren't flawed. In the present discussion we are arguing the fact that the dr's cert. goes through the DEFENDANT's hands before it hits the mail pile at the MDCH. In your hypo the driver doesn't hand-deliver the instructors certification. There is more reliability in the integrity of the system with drivers licenses than with the MM cards. But, as I said, it doesn't matter. Even if I accepted your position as true the fact is the card cannot prove what is necessary to prove under sec. 8. Read it. It imposes more requirements regarding the dr. and the relationship than sec. 4 requires to obtain the card.

 

As far as your trustworthiness question--trustworthiness of a statement is the reason for the hearsay rule. If you cannot cross-examine the declarant then why should you be forced to accept what the declarant says as true? That's the point of not allowing hearsay in. In our discussion the fact that the certifications go from the dr. and through the defendant's hands before hitting the MDCH is what creates the trustworthiness issue with the document. That is further exacerbated by the fact that MDCH does not vet the document. Now, if the MDCH DID vet the document then I could see where your argument would hold water but since they don't why would we force a court to accept a document as genuine when the only way to know is by asking the defendant?

[+RevThad]

Like I said, call the MDCH and get it from the horses mouth. Whether the MDCH is following their own rules is not relevant. What is relevant to the discussion is whether they are vetting apps. As I indicated they ARE visually inspecting them. That accounts for the denials based on incomplete data. They are NOT calling the dr's offices. Don't take my word for it, ask the MDCH.

 

Your drivers license analogy is still flawed and wouldn't matter even if it weren't flawed. In the present discussion we are arguing the fact that the dr's cert. goes through the DEFENDANT's hands before it hits the mail pile at the MDCH. In your hypo the driver doesn't hand-deliver the instructors certification. There is more reliability in the integrity of the system with drivers licenses than with the MM cards. But, as I said, it doesn't matter. Even if I accepted your position as true the fact is the card cannot prove what is necessary to prove under sec. 8. Read it. It imposes more requirements regarding the dr. and the relationship than sec. 4 requires to obtain the card.

 

As far as your trustworthiness question--trustworthiness of a statement is the reason for the hearsay rule. If you cannot cross-examine the declarant then why should you be forced to accept what the declarant says as true? That's the point of not allowing hearsay in. In our discussion the fact that the certifications go from the dr. and through the defendant's hands before hitting the MDCH is what creates the trustworthiness issue with the document. That is further exacerbated by the fact that MDCH does not vet the document. Now, if the MDCH DID vet the document then I could see where your argument would hold water but since they don't why would we force a court to accept a document as genuine when the only way to know is by asking the defendant?

Your statement about them not vetting applications and information submitted is hearsay, I get the point. That is why I presented their own words, in a public document, which would be an exception to the hearsay rules, I think I caught on to how that works.

 

Further, the law and rules of the regulating body define a registry identification card "means a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver." Thus the law declares a person identified by a registry identification card as a registered qualifying patient. What is a qualifying patient?

 

As for the driving thing, obviously you haven't had to deal with the whole driving test issue in awhile. As an applicant now sets up an appointment, pays the instructor, takes the road test, then receives a document from the instructor that is to be turned in with the rest of the driving application. The chain of custody of the certification of the road test is directly through the person whom the test effects the most. Not only that, but depending on the privately run certification center, much of the certification may be hand written (filled in).

 

In short the state can not on one hand offer a registration that includes certification, then choose to arrest folks and claim, well we didn't vet the information that we are supposed to vet, so we are going to attack that registration based on our choice not to do that which we are required to do. That would seem to be the state waiving their standing on that issue, as they had opportunity and authority to do so.

 

Just some more thoughts.

[peanutbutter]

First of all, what the rules state and what is actually happening are 2 different things. What if I pointed to the fact that the law states the MDCH shall issue cards within 15 days? Would that be PROOF that they DO issue cards within 15 days? Come on!!! I know first hand because I talked to a representative at the MDCH and was told that verification invloves a visual inspection of the application and supporting materials and THAT'S IT! You can call them and find out for yourself. They do NOT call a dr's office. Their definition of verification is to look at the paper and see that it is filled out. They do not even cross-reference dr's license numbers from what I understand. It is absolutely a rubber-stamp sort of deal. But don't take my word for it, call them.

 

As far as your road test analogy it isn't applicable for a number of reasons. Let's discuss the primary reason. In your analogy the violation, speeding let's say, doesn't require as an element that you be a licensed driver in order to be charged. In fact, you can be driving on a suspended license and still be charged with speeding so how is the road test relevant? Whether you took a road test isn't at issue.

 

As for your hearsay exception citations, I indicated above that some judges would probably allow in the card. However, the card is NOT a medical record and therefore not subject to a medical record hearsay exception. Secondly, you highlighted a portion in the business records exception without paying any regard to another portion, namely "unless the source of information or the method or circumstances of

preparation indicate lack of trustworthiness." That is the point of not allowing hearsay, that it is not a trustworthy statement. What you are arguing is that the certification document provided BY THE DEFENDANT to MDCH is trustworthy and genuine by virtue of the fact that it ends up in the hands of the MDCH and they HAVE THE POWER to vet the document. What you are disregarding is that having the power to vet the document and actually doing so are 2 different things.

 

Lastly, and again, even if the card were admitted that is NOT proof of the dr/pt relationship and the necessary elements that must exist under sec.8. It simply is not. As I stated the MDCH does not vet the dr. rec. document. And even if they did we would still need to know exactly what it is they did in order to determine if it was good enough to PROVE anything by a preponderance.

 

Here's a thought!!

 

The ID card process allows a third party to verify a doctors letter.

 

And does so without having to risk violating confidentiality rights under the law.

 

Since this is a readily available method, it is reasonable to proceed this way for the sake of protecting innocent patients, caregivers and doctors in Michigan.

[Captain Obvious]

Here's a thought!!

 

The ID card process allows a third party to verify a doctors letter.

 

And does so without having to risk violating confidentiality rights under the law.

 

Since this is a readily available method, it is reasonable to proceed this way for the sake of protecting innocent patients, caregivers and doctors in Michigan.

 

 

Bingo

[DenturesLost]

Here's a thought!!

 

The ID card process allows a third party to verify a doctors letter.

 

And does so without having to risk violating confidentiality rights under the law.

 

Since this is a readily available method, it is reasonable to proceed this way for the sake of protecting innocent patients, caregivers and doctors in Michigan.

You know, as I have stated already, the requirements under the AD are more demanding than those of the card issuing process. Therefore, arguing whether the card or certification can be admitted is not relevant. The requirements are as follows:

 

(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;

 

No where is it stated that a physician must complete a full assessment of the pt's medical history to sign a cert for a card. No where is it stated that a physician must have a bonafide relationship to sign the cert. For those reasons THOSE ELEMENTS of the aff def CANNOT be proven by the dr. cert even if it were admitted. Those are separate and more restrictive requirements that must exist to be able to utilize the AD.

 

Who is going to testify or otherwise prove that the dr. completed a full assessment?

[DenturesLost]

Your statement about them not vetting applications and information submitted is hearsay, I get the point. That is why I presented their own words, in a public document, which would be an exception to the hearsay rules, I think I caught on to how that works.

 

Further, the law and rules of the regulating body define a registry identification card "means a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver." Thus the law declares a person identified by a registry identification card as a registered qualifying patient. What is a qualifying patient?

 

As for the driving thing, obviously you haven't had to deal with the whole driving test issue in awhile. As an applicant now sets up an appointment, pays the instructor, takes the road test, then receives a document from the instructor that is to be turned in with the rest of the driving application. The chain of custody of the certification of the road test is directly through the person whom the test effects the most. Not only that, but depending on the privately run certification center, much of the certification may be hand written (filled in).

 

In short the state can not on one hand offer a registration that includes certification, then choose to arrest folks and claim, well we didn't vet the information that we are supposed to vet, so we are going to attack that registration based on our choice not to do that which we are required to do. That would seem to be the state waiving their standing on that issue, as they had opportunity and authority to do so.

 

Just some more thoughts.

They aren't an exception to the hearsay rule for reasons I've already stated.

 

You're right, your driving analogy is lost on me. I have no clue how it works if it is different than it was ages ago. So, I'll retract comments on that. However, I will say that you don't need to analogize the issue to understand it. It doesn't matter how the drivers licensure works. That's a different argument for a different day. What matters is how things work in this instance. The fact is that my presenting a dr's cert is not proof of anything given the fact that it is not vetted. And on that note I went and double-checked the rules and found you were trying to be sneaky and disingenuous. The rules do NOT require the dept to call the dr to verify. Reread it. It states that the dept shall verify but it doesn't indicate HOW it shall verify. It gives suggestions of how and that's it. Turns out the dept. is choosing to "verify" with just a visual inspection. And that is supposed to be good enough to prove the contents of the cert.? Really? Give me a break!

 

 

Furthermore, see the definition in the rules of a cert.:

 

“Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

If I recall correctly that is exactly the definition of a cert. in the law as well. Where in there does it state that a dr. must perform a full assessment, etc.? It doesn't. According to that definition a pt can get certified by a cursory inspection of records. It isn't until we head down the AD road that we are compelled to prove more than what a cert. requires. How do we prove that without a dr. to testify to it?

[+RevThad]

You know, as I have stated already, the requirements under the AD are more demanding than those of the card issuing process. Therefore, arguing whether the card or certification can be admitted is not relevant. The requirements are as follows:

 

(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;

 

No where is it stated that a physician must complete a full assessment of the pt's medical history to sign a cert for a card. No where is it stated that a physician must have a bonafide relationship to sign the cert. For those reasons THOSE ELEMENTS of the aff def CANNOT be proven by the dr. cert even if it were admitted. Those are separate and more restrictive requirements that must exist to be able to utilize the AD.

 

Who is going to testify or otherwise prove that the dr. completed a full assessment?

Hmmmm...

 

"solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, "

 

The protections provided to physicians are tied to doing exactly that, in a "bona fide physician-patient relationship". Further, they are subject to a professional licensing board "sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions."

 

However, your logic concerning the law makes much more sense. As it opens each and every registered or qualified patient and caregiver to prosecution based on an overzealous prosecutor attempting to circumvent the rest of the protections of the law by attacking the doctor-patient relationship. One might note that in the Redden case, even that prosecutor has dropped that line of attack.

[+RevThad]

They aren't an exception to the hearsay rule for reasons I've already stated.

 

You're right, your driving analogy is lost on me. I have no clue how it works if it is different than it was ages ago. So, I'll retract comments on that. However, I will say that you don't need to analogize the issue to understand it. It doesn't matter how the drivers licensure works. That's a different argument for a different day. What matters is how things work in this instance. The fact is that my presenting a dr's cert is not proof of anything given the fact that it is not vetted. And on that note I went and double-checked the rules and found you were trying to be sneaky and disingenuous. The rules do NOT require the dept to call the dr to verify. Reread it. It states that the dept shall verify but it doesn't indicate HOW it shall verify. It gives suggestions of how and that's it. Turns out the dept. is choosing to "verify" with just a visual inspection. And that is supposed to be good enough to prove the contents of the cert.? Really? Give me a break!

 

 

Furthermore, see the definition in the rules of a cert.:

 

“Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

If I recall correctly that is exactly the definition of a cert. in the law as well. Where in there does it state that a dr. must perform a full assessment, etc.? It doesn't. According to that definition a pt can get certified by a cursory inspection of records. It isn't until we head down the AD road that we are compelled to prove more than what a cert. requires. How do we prove that without a dr. to testify to it?

 

Wasn't trying to be sneaky about anything, and I apologize if it came off that way. Section 4 (f) requires a certification, to be a full assessment in the course of a bona fide relationship...

 

(f) A physician 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 the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition,

 

If the state chooses not to vet such things, that is not the fault of a patient or caregiver, that is the fault of the state. As I stated they have the opportunity, authority, and funding to do so. IF they accept a certification as legit, what possible grounds could a PA have for questioning the legitimacy in court, as they can easily verify the information outside of court. If I sign a contract, it is my responsibility to know what I am agreeing to.

 

Or are you suggesting this is yet another catch 22, and the law favors prosecutors?

[bobandtorey]

Hmmmm...

 

"solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, "

 

The protections provided to physicians are tied to doing exactly that, in a "bona fide physician-patient relationship". Further, they are subject to a professional licensing board "sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions."

 

However, your logic concerning the law makes much more sense. As it opens each and every registered or qualified patient and caregiver to prosecution based on an overzealous prosecutor attempting to circumvent the rest of the protections of the law by attacking the doctor-patient relationship. One might note that in the Redden case, even that prosecutor has dropped that line of attack.

i only respond when my name comes up but that is what i heard on the news i think they had no case as to the Doc: and it would of gone on a lot longer and more money for the PA

 

now they say we had to much when are they going to stop they must have it out for us i guess what else can it be

[DenturesLost]

Hmmmm...

 

"solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, "

 

The protections provided to physicians are tied to doing exactly that, in a "bona fide physician-patient relationship". Further, they are subject to a professional licensing board "sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions."

 

However, your logic concerning the law makes much more sense. As it opens each and every registered or qualified patient and caregiver to prosecution based on an overzealous prosecutor attempting to circumvent the rest of the protections of the law by attacking the doctor-patient relationship. One might note that in the Redden case, even that prosecutor has dropped that line of attack.

The protections provided to a dr. aren't relevant as to the validity of a card. The law doesn't say that if the dr. breaches his duties that the card is invalidated. In other words, the requirements of the dr. are just that, requirements of the dr. How would the pt know if the dr. made a full assessment or even if the dr. reviewed the pt's entire history? The pt cannot be faulted for the dr's breach. Lose the card? Maybe, but not to be prosecuted for depending on a card that is facially valid.

 

The point is that the existence of a card doesn't prove what is necessary to be proven under sec. 8.

[DenturesLost]

Wasn't trying to be sneaky about anything, and I apologize if it came off that way. Section 4 (f) requires a certification, to be a full assessment in the course of a bona fide relationship...

 

 

 

If the state chooses not to vet such things, that is not the fault of a patient or caregiver, that is the fault of the state. As I stated they have the opportunity, authority, and funding to do so. IF they accept a certification as legit, what possible grounds could a PA have for questioning the legitimacy in court, as they can easily verify the information outside of court. If I sign a contract, it is my responsibility to know what I am agreeing to.

 

Or are you suggesting this is yet another catch 22, and the law favors prosecutors?

You're right, it isn't the fault of the pt or cg. However, that isn't the point. The question becomes can the card be relied on to prove that the relationship, etc., is bonafide. You are suggesting that the court should accept the card as proof of the elements in 8(a)(1). The court isn't the MDCH and the MDCH's indiscretions (if that's what they are) cannot bind a court. The court is in the business of dealing with reality and not some fiction or altered reality. The fact is the MDCH's rules state that the MDCH shall verify. The rules don't indicate what level or standard the verification should rise to. Does the verification requirement mean the MDCH has to be 51% sure? Is it similar to a preponderance or is it lower? Is it higher than a preponderance and similar to beyond a reasonable doubt? There is no answer to that and thus the MDCH is free to verify to whatever standard they choose. If their standard is to look at the cert. and make sure it isn't in crayon and none of the r's are backwards then that isn't verifying up to the standard of a preponderance. To suggest that the court must accept the card as proof by a preponderance when we don't know the standard the mdch operates by is ludicrous.

[peanutbutter]

You're right, it isn't the fault of the pt or cg. However, that isn't the point. The question becomes can the card be relied on to prove that the relationship, etc., is bonafide. You are suggesting that the court should accept the card as proof of the elements in 8(a)(1). The court isn't the MDCH and the MDCH's indiscretions (if that's what they are) cannot bind a court. The court is in the business of dealing with reality and not some fiction or altered reality. The fact is the MDCH's rules state that the MDCH shall verify. The rules don't indicate what level or standard the verification should rise to. Does the verification requirement mean the MDCH has to be 51% sure? Is it similar to a preponderance or is it lower? Is it higher than a preponderance and similar to beyond a reasonable doubt? There is no answer to that and thus the MDCH is free to verify to whatever standard they choose. If their standard is to look at the cert. and make sure it isn't in crayon and none of the r's are backwards then that isn't verifying up to the standard of a preponderance. To suggest that the court must accept the card as proof by a preponderance when we don't know the standard the mdch operates by is ludicrous.

 

This is the start of the claim the doctor must make, according to the rules set up by the MDCH:

 

"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."

 

The ID card is evidence that a licensed doctor has made this claim. Every ID card that has bee issued by the MDCH has had that claim made by a licensed doctor.

[DenturesLost]

This is the start of the claim the doctor must make, according to the rules set up by the MDCH:

 

"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."

 

The ID card is evidence that a licensed doctor has made this claim. Every ID card that has bee issued by the MDCH has had that claim made by a licensed doctor.

The MDCH can't even say that so how can you? The MDCH doesn't vet every certification so there is no way to know that the "claim" has been made by a "licensed physician."

[peanutbutter]

This is the start of the claim the doctor must make, according to the rules set up by the MDCH:

 

"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."

 

The ID card is evidence that a licensed doctor has made this claim. Every ID card that has bee issued by the MDCH has had that claim made by a licensed doctor.

The MDCH can't even say that so how can you? The MDCH doesn't vet every certification so there is no way to know that the "claim" has been made by a "licensed physician."

 

Can't say what? That a doctor that is licensed in Michigan? They can verify that. They issue those licenses to those doctors. Not hard for the MDCH to check.

 

That statement is required by the program as it is run today.

 

Does that statement, if true, satisfy the "bonified" requirement?

 

The statement works for the regulatory agency responsible for issuing the ID card. That agency determined the document valid.

 

So does the ID card take care of it? It is evidence that the claim has been made, and that claim has been accepted by the MDCH.

[DenturesLost]

Can't say what? That a doctor that is licensed in Michigan? They can verify that. They issue those licenses to those doctors. Not hard for the MDCH to check.

 

That statement is required by the program as it is run today.

 

Does that statement, if true, satisfy the "bonified" requirement?

 

The statement works for the regulatory agency responsible for issuing the ID card. That agency determined the document valid.

 

So does the ID card take care of it? It is evidence that the claim has been made, and that claim has been accepted by the MDCH.

Not hard for a person with an internet connection to check either. You are missing the point.

 

A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense.

 

We can keep arguing this and I will keep saying the same thing. You have not addressed any of the issues other than to keep repeating that the MDCH "verified" the document. You are making an assumption that it was verified to a level so as to remove most doubt that it is not authentic. However you are yet to point to a specific process that accomplishes such a verification. As I have already stated, the MDCH does not do anything other than visually "verify" that the document "looks" good. A visual check does not preponderance make. You can argue until you're blue in the face that the MDCH COULD check the license number, or that they COULD call the dr, but the fact that they COULD do that does not mean they HAVE. Like I said, call the MDCH. Ask them directly and they will tell you what their procedure is in regard to verification. Have there been instances where they called a dr's office? Maybe. Is it 50% of the time? Not even close.

 

The document is NOT a sworn statement. It isn't notarized. It is easily forged. It is not verified for authenticity other than a visual inspection. That is the way it is. That may be okay for the MDCH and it MAY satisfy THEIR rules, but because it may satisfy their rules is not relevant. The court has its own set of rules to follow and no where is it mandated that the court accept the document as legit just because the MDCH does.

[Hempcheff]

Not hard for a person with an internet connection to check either. You are missing the point.

 

A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense.

 

We can keep arguing this and I will keep saying the same thing. You have not addressed any of the issues other than to keep repeating that the MDCH "verified" the document. You are making an assumption that it was verified to a level so as to remove most doubt that it is not authentic. However you are yet to point to a specific process that accomplishes such a verification. As I have already stated, the MDCH does not do anything other than visually "verify" that the document "looks" good. A visual check does not preponderance make. You can argue until you're blue in the face that the MDCH COULD check the license number, or that they COULD call the dr, but the fact that they COULD do that does not mean they HAVE. Like I said, call the MDCH. Ask them directly and they will tell you what their procedure is in regard to verification. Have there been instances where they called a dr's office? Maybe. Is it 50% of the time? Not even close.

 

The document is NOT a sworn statement. It isn't notarized. It is easily forged. It is not verified for authenticity other than a visual inspection. That is the way it is. That may be okay for the MDCH and it MAY satisfy THEIR rules, but because it may satisfy their rules is not relevant. The court has its own set of rules to follow and no where is it mandated that the court accept the document as legit just because the MDCH does.

 

from Definitions

 

R 333.109 Verification of information.

Rule 9. The department shall verify the information contained in an

application and the accompanying documentation, which may include, but is not

limited to, the following:

(a) Contacting each applicant by telephone or by mail. If proof of

identity cannot be determined with reasonable reliability, the department may

require the production of additional identification materials.

(b) Contacting the parent or legal guardian of a qualifying patient who is

under the age of 18.

© Verifying that a physician is licensed to practice in the state.

(d) Contacting the certifying physician directly to confirm the validity

of the written certification.

"A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense."

 

the law states Department is the authority on the legitimacy of a patient application, therefore, the departments decision to approve or deny an application is the proof. why again will the court not accept this?

[peanutbutter]

Not hard for a person with an internet connection to check either. You are missing the point.

 

A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense.

 

We can keep arguing this and I will keep saying the same thing. You have not addressed any of the issues other than to keep repeating that the MDCH "verified" the document. You are making an assumption that it was verified to a level so as to remove most doubt that it is not authentic. However you are yet to point to a specific process that accomplishes such a verification. As I have already stated, the MDCH does not do anything other than visually "verify" that the document "looks" good. A visual check does not preponderance make. You can argue until you're blue in the face that the MDCH COULD check the license number, or that they COULD call the dr, but the fact that they COULD do that does not mean they HAVE. Like I said, call the MDCH. Ask them directly and they will tell you what their procedure is in regard to verification. Have there been instances where they called a dr's office? Maybe. Is it 50% of the time? Not even close.

 

The document is NOT a sworn statement. It isn't notarized. It is easily forged. It is not verified for authenticity other than a visual inspection. That is the way it is. That may be okay for the MDCH and it MAY satisfy THEIR rules, but because it may satisfy their rules is not relevant. The court has its own set of rules to follow and no where is it mandated that the court accept the document as legit just because the MDCH does.

 

We can also argue until we are blue in the face and still arrive at a place the courts never get to.

 

Courts can go in directions that nobody expects.

 

Here's another thought. Courts just might decide that innocent people should be protected. Instead of supporting the status quo of the war against marijuana.

 

There is a path they could choose to follow, if the protections of the rights of the people matter at all.

[DenturesLost]

from Definitions

 

R 333.109 Verification of information.

Rule 9. The department shall verify the information contained in an

application and the accompanying documentation, which may include, but is not

limited to, the following:

(a) Contacting each applicant by telephone or by mail. If proof of

identity cannot be determined with reasonable reliability, the department may

require the production of additional identification materials.

(b) Contacting the parent or legal guardian of a qualifying patient who is

under the age of 18.

© Verifying that a physician is licensed to practice in the state.

(d) Contacting the certifying physician directly to confirm the validity

of the written certification.

"A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense."

 

the law states Department is the authority on the legitimacy of a patient application, therefore, the departments decision to approve or deny an application is the proof. why again will the court not accept this?

If you aren't going to follow the discussion they why post at all? Reread what you just posted. I've already explained why that rule doesn't help us here. So, again, reread it with a discerning eye or scroll up and catch up on the discussion.

[peanutbutter]

A claim being made, and accepted by the MDCH, doesn't rise to a level that is required to support a preponderance. What you are saying is that because it is good enough for the MDCH then it MUST rise to the level of a preponderance AND the court MUST accept it as definitive as far as that standard of proof. That doesn't make any sense.

 

If the defendant has a ID card they are offered more protections than if they don't.

 

One of those protections is the automatic preponderance in their favor. A presumption.

 

That presumption doesn't include a presumption of a bonefide relationship. check. got it.

 

That is a potential "loophole" in favor of the PA.

 

So if a section 8 case is being presented in a motion, the court could allow the loophole to impact the case. Which would be clearly against the will of the people.

 

The form the doctor signs already shows the doctors claim to a legit patient/doctor relationship. That claim, by the doctor, could be determined to take care of that requirement.

 

You have talked about the rules of evidence. Are those rules law that overpower voter initiatives? Or does new law modify the rules?

[DenturesLost]

We can also argue until we are blue in the face and still arrive at a place the courts never get to.

 

Courts can go in directions that nobody expects.

 

Here's another thought. Courts just might decide that innocent people should be protected. Instead of supporting the status quo of the war against marijuana.

 

There is a path they could choose to follow, if the protections of the rights of the people matter at all.

Courts can, and will, decide what they want to decide. That's why we have appeals.

 

It would appear now that you are accepting that your positon is wrong without coming out and saying it. It would also appear that you are trying to appeal to emotion rather than argue the point---a logical fallacy. You cannot make the statement that the court "might decide that innocent people should be protected" when their innocence is exactly what is in question. You tend to argue a point but then let bits and pieces fall to the wayside when they don't support your conclusion.

 

 

Let's wrap this up in a tidy package without letting things fall to the wayside.

If you have a card but are over limits, and therefore exercising use of sec. 8, then you have a burden to meet. You must show by a preponderance of the evidence ALL of the elements required in sec.8 INCLUDING ALL of the elements in 8(a)(1). You cannot use your card to prove 8a1 by a preponderance. Why? Because the only thing the card will prove is that you submitted a dr's cert. that, while sufficient for the MDCH standards, does NOT carry enough weight to create a preponderance. There is no way it can. The MDCH doesn't vet the cert. sufficiently. The cert. passes through the defendant's hands before it hits the MDCH. There is no significant level of reliability in the cert. Good enough for the MDCH? Maybe. Good enough in a court of law? No. There is nothing in the law or rules that states the MDCH must verify to the level of preponderance. You cannot just simply assume that since the MDCH verified the cert. that it is authentic in terms of proving anything by a preponderance.

 

That's the long and short of it. However, as a double-whammy, I would add that the requirements of the AD in 8a1 as to what a patient must show are NOT the same as what a patient must show to receive a card. You will argue the dr. protections that mirror the AD's 8a1. However, no where in the law does it state that a patient must assert those elements to get a card. No where. That section deals with what must happen to protect the DR! So in other words, if the dr. isnt interested in protection she could, in theory, disregard that subsection, but there is no where in the law that states that such disregard would affect the pt's status. Before you TRY to argue otherwise LOOK BEFORE YOU LEAP. If you are arguing that the physician protection subsection requirements apply to the pt in that the pt's status as a covered cardholder is in question if the PHYSICIAN doesn't do what is required of the PHYSICIAN then you are opening up another can of worms. I would point out that such an argument would be wrong but the point is-- to argue that is to chip away at pt protections and open up attack to cardholders in a new way.

[peanutbutter]

Courts can, and will, decide what they want to decide. That's why we have appeals.

 

It would appear now that you are accepting that your positon is wrong without coming out and saying it. It would also appear that you are trying to appeal to emotion rather than argue the point---a logical fallacy. You cannot make the statement that the court "might decide that innocent people should be protected" when their innocence is exactly what is in question. You tend to argue a point but then let bits and pieces fall to the wayside when they don't support your conclusion.

 

 

Let's wrap this up in a tidy package without letting things fall to the wayside.

If you have a card but are over limits, and therefore exercising use of sec. 8, then you have a burden to meet. You must show by a preponderance of the evidence ALL of the elements required in sec.8 INCLUDING ALL of the elements in 8(a)(1). You cannot use your card to prove 8a1 by a preponderance. Why? Because the only thing the card will prove is that you submitted a dr's cert. that, while sufficient for the MDCH standards, does NOT carry enough weight to create a preponderance. There is no way it can. The MDCH doesn't vet the cert. sufficiently. The cert. passes through the defendant's hands before it hits the MDCH. There is no significant level of reliability in the cert. Good enough for the MDCH? Maybe. Good enough in a court of law? No. There is nothing in the law or rules that states the MDCH must verify to the level of preponderance. You cannot just simply assume that since the MDCH verified the cert. that it is authentic in terms of proving anything by a preponderance.

 

That's the long and short of it. However, as a double-whammy, I would add that the requirements of the AD in 8a1 as to what a patient must show are NOT the same as what a patient must show to receive a card. You will argue the dr. protections that mirror the AD's 8a1. However, no where in the law does it state that a patient must assert those elements to get a card. No where. That section deals with what must happen to protect the DR! So in other words, if the dr. isnt interested in protection she could, in theory, disregard that subsection, but there is no where in the law that states that such disregard would affect the pt's status. Before you TRY to argue otherwise LOOK BEFORE YOU LEAP. If you are arguing that the physician protection subsection requirements apply to the pt in that the pt's status as a covered cardholder is in question if the PHYSICIAN doesn't do what is required of the PHYSICIAN then you are opening up another can of worms. I would point out that such an argument would be wrong but the point is-- to argue that is to chip away at pt protections and open up attack to cardholders in a new way.

 

You argue that section requires proof and preponderance. Section eight only says evidence.

 

You argue that the rules of evidence requires a preponderance for a motion hearing. The law says evidence.

 

You argue that section four no longer applies in a section eight case. A week argument.

 

Some of the requirements in section eight can be satisfied by presenting the ID card. As courts ignore those protections they undermine the ability of the citizens of Michigan to be law abiding citizens. They strip citizens of protections given to them by the voters.