Michigan Court Of Appeals

[AKenewell]

The Michigan Court of Appeals Tuesday ruled that a defendant in a criminal marijuana possession case may not retroactively use the affirmative defense provided by the Michigan Medical Marijuana Act in support of a pretrial motion to dismiss.

 

The court’s opinion in People vs. Alexander Edward Kolanek reflects that the defendant first discussed with his physician his potential qualification for medical marijuana usage in July 2008, prior to the enactment of the Michigan Medical Marijuana Act on Dec. 4, 2008. The act established an affirmative defense against a criminal charge related to marijuana in certain circumstances.

 

Authorities arrested defendant on April 6, 2009, and charged him with possession of marijuana the following day. On April 12, 2009, defendant asked his physician to authorize the medical use of marijuana for him. Defendant thereafter applied for and received a medical marijuana card from the Michigan Department of Community Health.

 

On June 10, 2009, defendant filed a motion to dismiss the marijuana possession charge asserting the affirmative defense of medical marijuana use, to which he attached a supporting affidavit from his physician. The district court denied defendant’s motion to dismiss, finding that defendant had not satisfied the requirements for claiming the medical marijuana defense, because he did not provide evidence to show that a physician had approved his use of medical marijuana between the act’s effective date and the date of his arrest.

On appeal, the circuit court reversed the district court’s denial of defendant’s motion to dismiss, reasoning that the timing of the physician’s statement in support of the defendant’s medical marijuana use did not matter, as long as the physician’s statement had indeed occurred. The prosecution filed an application for leave to appeal, which the Michigan Court of Appeals granted.

 

In an opinion published on Tuesday, Jan 11, 2011, an appeals panel comprised of Presiding Judge William B. Murphy, Judge Patrick M. Meter and Judge Douglas B. Shapiro reversed the circuit court and remanded the matter for reinstatement of the charges against defendant. The panel held that neither defendant’s post-arrest affidavit, nor his July 2008 discussion with his physician, was sufficient to meet the requirements of the affirmative defense embodied in the Medical Marijuana Act.

 

The panel concluded that the statement of medical use must have occurred before the arrest but after the effective date of the act, which in this case it did not, and that the circuit court improperly dismissed the charges. However, the panel also concluded that the act does not bar defendant from asserting the medical marijuana defense at trial or from submitting proofs in support of the defense at that time.

 

http://www.examiner.com/legal-issues-in-detroit/michigan-court-of-appeals-medical-marijuana-act-is-not-retroactive

[peanutbutter]

So the COA concluded that his own long term doctor had made a statement before he was arrested verbally.

 

And that same family doctor confirmed that verbal statement in written form later.

 

They also seem to have concluded that the verbal would have been good if that verbal statement had taken place after 12/4/2008.

 

I think this court tried to trash out section 8.

 

We need the fed to get changed so this crap stops.

[Michael Komorn]

I agree this is bad decision and takes away the intent of the voters to protect both registered and "unregistered patients." I will say however that the language in the last paragraph of the decision is good language.. Notice that the court remands the case back to the district court, because the accused patient has an absolute god given right to take his case to a jury. I am reading this to mean that, no matter what the judge says, no matter how bad she thinks the defense is, and no matter how badly she rules in regards to the motion to dismiss, the accused patient can take it to the jury. Many who have read the MMMA, would say no kidding, of course you have a right to take it to a jury, but this has not been a consistent theme amongst judges, and prosecutors. In fact many have argued in cases that I am involved with, that the accused patient can not present a defense before the jury. This case, to me, stand for the proposition that the jury will be the ultimate decider of what is medical and what is not. This is not offered as legal advise.

[GregS]

I agree this is bad decision and takes away the intent of the voters to protect both registered and "unregistered patients." I will say however that the language in the last paragraph of the decision is good language.. Notice that the court remands the case back to the district court, because the accused patient has an absolute god given right to take his case to a jury. I am reading this to mean that, no matter what the judge says, no matter how bad she thinks the defense is, and no matter how badly she rules in regards to the motion to dismiss, the accused patient can take it to the jury. Many who have read the MMMA, would say no kidding, of course you have a right to take it to a jury, but this has not been a consistent theme amongst judges, and prosecutors. In fact many have argued in cases that I am involved with, that the accused patient can not present a defense before the jury. This case, to me, stand for the proposition that the jury will be the ultimate decider of what is medical and what is not. This is not offered as legal advise.

 

How is it that those players manipulate that right and effectively deprive defendants of their arguments in defense?

[bobandtorey]

This is not offered as legal advise. LOL

 

that is good he can go in front of the people thats a great start IMO

 

 

Attorney Redden lol

[solabeirtan]

The Laws ' Retroactive' quality should pertain to the time period Prior to the date of the Law passing. [Dec 8, 2008] This is the effective Date of the Initiation of the Law.

 

The stipulations in the law after that date were only specific to MDCH for their part in setting up the Administrative Rules and Procedures that are involved in issuing cards and the eventual physical requirements to produce a Legaly (by MI_state Law) Protected MEDICAL Cannabis Patient.

 

The Only Proactive Intention of this Legislation was to show the ability or Lack of it to Determine if there is any Compassionate Quarter to be had in the Executive or Judicial Branch of Govt or Anywhere else in this great country of hours .