Dismissal Sought In Marijuana Case

[DenturesLost]

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?

 

Rules of evidence are procedural rules to which a court must adhere. Law trumps court rules UNLESS the rule is procedural in nature. In other words if a rule conflicts with a law substantively then the law wins out but if it conflicts procedurally then the rule wins. Making a determination on the admission of evidence is about as basic a procedure as you can have.

[peanutbutter]

Making a determination on the admission of evidence is about as basic a procedure as you can have.

 

And "we the people" are not allowed to change that?

[peanutbutter]

So a person has an ID card .. the police officer and the PA ignore it and get a case running.

 

All of the protections of the ID card go away because they decided to ignore the ID card protections?

 

I think that is what you are saying.

[DenturesLost]

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.

Here is where I turn around and walk away. I have addressed every one of those issues. Scroll up. There isn't one weak argument regarding the sec 8 position. I have backed everything up. Now you decide to make a totally random and baseless post saying my argument is weak because you are at the end of your rope. This is what you do. I see it in every discussion. There really is no point in arguing with you because you don't employ logical reasoning and you DO use a lot of logical fallicies in your arguments.

 

Interpreting laws is not your strong suit. I would reiterate my position above. The law does not state that preponderance is the standard. But it DOES state that an evidentiary hearing is necessary. PREPONDERANCE IS THE STANDARD EMPLOYED AT AN EVIDENTIARY HEARING. How do you NOT get that? AGAIN, the law does not state WHERE that hearing must take place either, does it? Why don't you tell the next person employing the AD that they should make a motion to the court to allow the evidentiary hearing to take place at the local compassion club? AND that the head of the club preside at the hearing!! Wouldn't that be awesome??? I mean Sec 8 doesn't require the hearing to be held in a court OR presided over by a judge!!!! Sweeeeeeeeeeeeeeet!

 

Oh, look! Double rainbow...oh my god!!

[peanutbutter]

But it DOES state that an evidentiary hearing is necessary.

 

No it doesn't .. look again.

[peanutbutter]

Section eight allows two pathways.

 

May present a defense.

 

May present a motion.

 

At least one court has ruled that presenting the motion eliminates the ability to present an entire defense.

 

It would be horrible if the high court ruled that way.

[DenturesLost]

No it doesn't .. look again.

(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).

[peanutbutter]

I've also seen courts allow the defense after the motion has been denied.

[peanutbutter]

(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).

 

May assert.

 

Nothing in there about negating the further possibility of a defense before a jury.

 

I realize that some courts have ruled that this ends any medical case to be presented. Some have not. More often than not the court has ruled in favor of the defendant.

 

The protections of the ID card require the case to be dropped entirely if the person is within the limits of that section.

 

The patient or caregiver is not subject to prosecution. That doesn't go away when a person is arrested unjustly.

[DenturesLost]

May assert.

 

Nothing in there about negating the further possibility of a defense before a jury.

 

I realize that some courts have ruled that this ends any medical case to be presented. Some have not. More often than not the court has ruled in favor of the defendant.

 

The protections of the ID card require the case to be dropped entirely if the person is within the limits of that section.

 

The patient or caregiver is not subject to prosecution. That doesn't go away when a person is arrested unjustly.

Make some sense. You are again playing word games. This whole discussion is based on the premise of a card-holding pt using the AD and what the standard of proof is at the hearing as well as what can be admitted into evidence at the hearing and whether a preponderance can be established by that admitted evidence. You want to go and change the premise to try and change the outcome of the argument. Give me a freaking break!

[peanutbutter]

Make some sense. You are again playing word games. This whole discussion is based on the premise of a card-holding pt using the AD and what the standard of proof is at the hearing as well as what can be admitted into evidence at the hearing and whether a preponderance can be established by that admitted evidence. You want to go and change the premise to try and change the outcome of the argument. Give me a freaking break!

 

And what you present requires ignoring sections of the law.

[DenturesLost]

And what you present requires ignoring sections of the law.

No it doesn't. Scroll up and read the entire discussion. It's bulletproof.

 

What YOU present requires MAKING UP sections or at least bastardizing what exists.

[peanutbutter]

No it doesn't. Scroll up and read the entire discussion. It's bulletproof.

 

What YOU present requires MAKING UP sections or at least bastardizing what exists.

 

It's bulletproof????? I think that claim can only be made after the high court rules.

[DenturesLost]

It's bulletproof????? I think that claim can only be made after the high court rules.

Rules on what? The admissibility of a card to satisfy 8a1?

 

I'd bet dollars to donuts that if the supremes DO rule on this issue you will change your tune. At that point you will argue that the supremes are wrong. But, for now, it's convenient for you to hang your hat on that, huh?

[chi_guy]

DL why do you even bother? You are obviously right and everyone else is wrong. Your logic is right on point I don't know why anyone bothers to even share their opinion. We all should take your word as gospel. Or maybe we should follow justice O'connell and stay away from cannabis altogether. Especially those of us who are sick and dying. Hell, why should we use cannabis anyway when there are so many pharmaceutical drugs out there that are far superior. You are so gracious for giving us all your sound advice. Don't forget to remind everyone that cannabis is still federally illegal and we are all criminals for violating federal law.

[Stewedscrewed]

Pick your battles well in this time of clarification. we may be a test case all wrapped up in one the courts are going after us for too many plants and to much MMJ on hand

 

Bob, if you dont mind me asking what was your count, weight, and number allowed? If under the legal limit how can they go after you?

[DenturesLost]

DL why do you even bother? You are obviously right and everyone else is wrong. Your logic is right on point I don't know why anyone bothers to even share their opinion. We all should take your word as gospel. Or maybe we should follow justice O'connell and stay away from cannabis altogether. Especially those of us who are sick and dying. Hell, why should we use cannabis anyway when there are so many pharmaceutical drugs out there that are far superior. You are so gracious for giving us all your sound advice. Don't forget to remind everyone that cannabis is still federally illegal and we are all criminals for violating federal law.

Yes, you are right. I am considering shrinking back into a yesman like most people. The yesmen on this site have an easy go at it. It's like a mob mentality. Disagree with the mob then you MUST be wrong.

 

Why don't you drop the ad hominem arguments and contribute something worthwhile to the discussion. The next thing you'll be saying is I must be wrong because I'm fat!

 

As for me, I guess I won't become a yesman afterall. I am perfectly happy with being the odd man out. I don't need peanut gallery support to argue constructively as I can argue off of my confidence in my position instead. My satisfaction comes from knowing that arguing the law from a logical and legal perspective will HELP people who depend on the law. I prefer that to arguing the law based on what we oh-so-much WANT it to be.

[chi_guy]

Let's clear up some things regarding the AD. There are two parts to consider section 8a and section 8b. These two parts are biforcated. Just because a person may assert 8b does not mean they don't have the right to assert 8a to "any" prosecution involving marihuana. If a judge denies the motion to dismiss the law clearly states that person has the right this defense in "any" prosecution. A judge should never be able to prevent a person from presenting evidence that establishes a person's medical purpose for using marihuana to a jury.

[chi_guy]

Yes, you are right. I am considering shrinking back into a yesman like most people. The yesmen on this site have an easy go at it. It's like a mob mentality. Disagree with the mob then you MUST be wrong.

 

Why don't you drop the ad hominem arguments and contribute something worthwhile to the discussion. The next thing you'll be saying is I must be wrong because I'm fat!

 

As for me, I guess I won't become a yesman afterall. I am perfectly happy with being the odd man out. I don't need peanut gallery support to argue constructively as I can argue off of my confidence in my position instead. My satisfaction comes from knowing that arguing the law from a logical and legal perspective will HELP people who depend on the law. I prefer that to arguing the law based on what we oh-so-much WANT it to be.

 

I'm all for arguing the law but every time a valid point is made you don't seem to respond. I don't agree with that people who agree with the fact that this law was very liberally written are yes men. Logic points us in that direction by reading mma act.

[DenturesLost]

Let's clear up some things regarding the AD. There are two parts to consider section 8a and section 8b. These two parts are biforcated. Just because a person may assert 8b does not mean they don't have the right to assert 8a to "any" prosecution involving marihuana. If a judge denies the motion to dismiss the law clearly states that person has the right this defense in "any" prosecution. A judge should never be able to prevent a person from presenting evidence that establishes a person's medical purpose for using marihuana to a jury.

This discussion isn't about whether a defense can be presented to the jury regardless of the outcome of an evidentiary hearing.

 

If you would read the last few pages of the thread then you would know what it has evovled into.

 

PB, in his very evasive AND pervasive fashion, has brought up presenting a defense to the jury as a red herring when he saw that the evidentiary hearing argument was failing. This discussion is about the hearing and whether a dr. is needed to testify or whether a card can establish the elements in 8a1. If you want to discuss whether a defense can be presented to the jury that fine but let's start a new thread so as to keep the issues separate.

[+RevThad]

Rules on what? The admissibility of a card to satisfy 8a1?

 

I'd bet dollars to donuts that if the supremes DO rule on this issue you will change your tune. At that point you will argue that the supremes are wrong. But, for now, it's convenient for you to hang your hat on that, huh?

Just had to hop back in on this as it has dragged on and on. The claim that there is no vetting of applications and the accompanying certification, is coming from a single source; you. From the MDCH: "8,774 applications denied -- most due to incomplete application or missing documentation.", which suggests there are other reasons besides the 2 mentioned, which means they are doing something other than rubber stamping applications.

 

Your claim is based on an alleged phone call with somebody at the department, who stated that they aren't doing their job, they are just eyeballing and approving. Simply looking at the turn around times on new vs renewal applications, suggests that something else is going on, otherwise the cards for initial applications would flow out as quickly as the renewal applications.

 

Your claim about the chain of custody of the certification bringing the trustworthiness into question, could be applied to every valid prescription that is written on a pad. Shall we question each and every recipient of narcotics about whether or not it was in the course of a bona fide relationship? The courts for decades have ruled that a licensed treating physician is given a lot of deference when it comes to prescriptions and recommendations. That it is the place of medical licensing boards to determine whether or not a doctor has met minimum standards for quality of care, and or properly evaluated a patient. Note the members of those licensing boards are other physicians, not judges and lawyers.

 

Now here comes the real problem with your position. If I am charged with a medical marijuana related offense (perhaps I had 2.7 ounces because the medicine hasn't completely dried yet), and I am a registered caregiver, how can I request, subpoena, or compel a doctor to testify or release medical records for our patient? As far as I know, my personal legal jeopardy does not give me some mysterious right or power to violate the various privacy laws as they apply to another person. At best I would have a copy of all the paperwork required for the application, and possibly my registry identification card. I cannot expect my patient to open up their medical records to the state, nor should I expect the doctor to testify for somebody that is not their patient... The only issue in question is whether or not the quantity I possessed was reasonable, and possibly whether or not what I was engaged in was related to the medical use of the patient.

 

We are left with a simple construction question. What is the intent of the law, and which position more closely reflects that intent? I suggest that allowing PAs to go on witch hunts (aka goose chases) trying to disprove a certification, or a state issued registration card is definitely not part of the intent of the law. Remember that voter initiated laws are to be treated by the courts

"©ourts should not engage in a narrow or technical reading of the language contained in a voter initiated law, if to do so would defeat the intent of the people." There should be a liberal interpretation that furthers the intent of the people, not a hindrance to it.

 

Just some quick thoughts, talk soon.

[DenturesLost]

Just had to hop back in on this as it has dragged on and on. The claim that there is no vetting of applications and the accompanying certification, is coming from a single source; you. From the MDCH: "8,774 applications denied -- most due to incomplete application or missing documentation.", which suggests there are other reasons besides the 2 mentioned, which means they are doing something other than rubber stamping applications.

 

Your claim is based on an alleged phone call with somebody at the department, who stated that they aren't doing their job, they are just eyeballing and approving. Simply looking at the turn around times on new vs renewal applications, suggests that something else is going on, otherwise the cards for initial applications would flow out as quickly as the renewal applications.

 

You can disagree with my "claim" if you choose. All you have to do is pick up the phone and make an "alleged" call yourself. Why argue that I am wrong when you aren't willing to take the extra step to check? My inability to prove my "claim" is what you are going to stand on to prove I am wrong? I'll come right out and say I cannot prove it on this forum. Or how about this, call your doctor's office and see if the MDCH checked out the authenticity of the signature by the dr.

 

As far as your turnaround time argument, really? That means they are vetting apps? That's the proof?

 

Bottom line is if you aren't going to accept my "claim" then there is no reason to discuss anything further because my "claim" is the foundation of my argument.

[DenturesLost]

Now here comes the real problem with your position. If I am charged with a medical marijuana related offense (perhaps I had 2.7 ounces because the medicine hasn't completely dried yet), and I am a registered caregiver, how can I request, subpoena, or compel a doctor to testify or release medical records for our patient? As far as I know, my personal legal jeopardy does not give me some mysterious right or power to violate the various privacy laws as they apply to another person. At best I would have a copy of all the paperwork required for the application, and possibly my registry identification card. I cannot expect my patient to open up their medical records to the state, nor should I expect the doctor to testify for somebody that is not their patient... The only issue in question is whether or not the quantity I possessed was reasonable, and possibly whether or not what I was engaged in was related to the medical use of the patient.

 

 

Your pt., whether they like it or not, would be seen as having given constructive consent to use their records to get you out of your jam. Clearly the situation you present is foreseeable to a pt before he signs a caregiver. Furthermore, regardless of constructive consent the court can order the pt to bring the records to court in a subpoena duces tecum to permit an in camera review of the documents. Stop acting like things are so impossible in the world.

[DenturesLost]

Your claim about the chain of custody of the certification bringing the trustworthiness into question, could be applied to every valid prescription that is written on a pad. Shall we question each and every recipient of narcotics about whether or not it was in the course of a bona fide relationship? The courts for decades have ruled that a licensed treating physician is given a lot of deference when it comes to prescriptions and recommendations. That it is the place of medical licensing boards to determine whether or not a doctor has met minimum standards for quality of care, and or properly evaluated a patient. Note the members of those licensing boards are other physicians, not judges and lawyers.

 

The issue isn't whether we should question each and every marijuana pt or narcotic pt. You are trying to make it sound extreme for effect (and thus engaging in the logical fallacy known as a "false dilemma"). We aren't QUESTIONING every mj pt. The issue is that the mj pt must PROVE something by a preponderance based on 8a1. How is your example at all analogous???? There is NO question that if you are utilizing the AD that you MUST prove the elements in 8a1. That isn't EVERY mj pt. That is a defendant utilizing the AD. You are suggesting that the card can prove all of the elements of 8a1 by a preponderance just because the MDCH accepts the dr. cert. That's nonsensical. You know it is. Does the MDCH use the preponderance standard of proof when deciding whether to accept a cert.????? We don't know WHAT standard they use. Yet you think the court should accept the card as fulfilling the preponderance standard!!!

 

Furthermore, as I have already stated, 8a1 requires the pt to prove MORE than what needs to be proven to get a card. Where on the form or ANYWHERE does a pt need to prove that a full assessment was made to get a card. Come on, really. There is a difference between the MDCH ASSUMING that there may have been a full assessment and a defendant PROVING by a preponderance that there has been one conducted. How do you not get that?

[peanutbutter]

PB, in his very evasive AND pervasive fashion, has brought up presenting a defense to the jury as a red herring when he saw that the evidentiary hearing argument was failing. This discussion is about the hearing and whether a dr. is needed to testify or whether a card can establish the elements in 8a1. If you want to discuss whether a defense can be presented to the jury that fine but let's start a new thread so as to keep the issues separate.

 

LOL .. when short of ammo target the messenger instead of the message.

 

You were talking about the rules of evidence within a evidentiary hearing. The burden of proof is less in a defense. While presenting a defense the burden in on the PA. There the PA is required to beyond a reasonable doubt. There seemed to be a suggestion that the defense is the only pathway to present the AD. That is clearly a item yet to be determined.