State Court Of Appeals Rejects Medical Marijuana Claim In Dismissed Grand Haven Case

[Danielshemp]

State Court of Appeals rejects medical marijuana claim in dismissed Grand Haven case

Published: Friday, February 11, 2011, 12:20 PM Updated: Friday, February 11, 2011, 4:21 PM

By Barton Deiters | The Grand Rapids Press

 

GRAND HAVEN – A 24-year-old man may find himself facing felony charges of growing marijuana in a case that was thrown out by an Ottawa County Circuit Court judge more than a year ago.

 

Acting on a tip, police arrested Benjamin Curtis Walburg in 2009 and charged him with having 25 marijuana plants in his Grand Haven Township home.

 

The case was filed in Grand Haven in June of 2009 and Walburg faced a maximum of seven years in prison for manufacturing marijuana.

 

According to police, Walburg was cooperative and did not try to conceal the plants.

Walburg defended himself saying the marijuana was for medical use and permissible under the Medical Marijuana Act passed by Michigan voters in November of 2008.

 

Walburg claimed he used the marijuana to combat severe anxiety disorder and insomnia, according to court records.

 

By November of 2009, Ottawa County Circuit Court Judge Edward Post dismissed the case saying even though had not obtained his registration card authorizing him to grow marijuana.

 

The Ottawa County Prosecutor's Office appealed the decision saying that even if he was growing pot for medical use, the act only allows for 12 plants – he was found with 25.

 

Court records show that Walburg disputes the number of plants police claim he possesed.

 

Assistant Prosecutor Gregory Babbitt also wrote in his appellate brief that Walburg had failed to get a doctor's authorization prior to his arrest and therefore violated the law even though he received a de facto prescription after the case went to court.

 

“I was expecting this decision personally,” Babbitt said today.

 

Babbitt said the Court of Appeals panel decision does not belittle the decision made by Post. He said the law was new and vague as it was passed allowing for a broad range of interpretation.

 

“There was no Appeals Court rulings to rely on at the time,” Babbitt said.

 

He said over the past two years since the law was passed, the court has worked to provide direction to police and prosecutors regarding the applicable law.

 

The three-member Court of Appeals panel did not agree with Babbitt's argument about there being a defined number of 12 plants that were allowed under the act.

 

The appeals court ruled that there was no set number but instead called for a reasonable number in order to keep a continuous supply on-hand.

 

“Unfortunately, the Legislature neglected to define the term 'reasonably necessary' within the statute, leaving it open to interpretation based on the individual circumstances of each case,” the court wrote in its opinion made public today.

 

No decision has been made at this point as to whether Walburg will ask the State Supreme Court to hear the case. If the state high court does not hear the case, Ottawa County prosecutors could refile the charges.

 

Walburg's attorney Bradford Springer said his client is considering his options.

 

 

E-mail Barton Deiters: bdeiters@grpress.com and follow him on Twitter at twitter.com/GRPBarton

 

 

 

 

 

http://www.mlive.com/news/grand-rapids/index.ssf/2011/02/state_court_of_appeals_rejects.html

 

 

This is both good news and bad news, I think. Apparently the coa says if you haven't a card then the affirmative defense cannot be used. The good news is that the coa recognizes the "reasonable amount" in the affirmative defense. I'm sure if I'm wrong, I'll hear about it.