Medical Marijuana Use On Probation - Video Of Oral Arguments In Benzie Circuit Court - May, 25, 2011

[Eric L. VanDussen]

Here's the video: http://www.upnorthmedia.org/watchupnorthtv.asp?SDBFid=3175#vid

 

Mr. Halloway’s attorney, Jesse L. Williams, argued that his client, Alan Halloway, should be allowed to treat his debilitating seizures, with medical marijuana, while he’s on probation. Benzie County Prosecutor John B. Daugherty opposed the motion and 19th Circuit Judge James M. Batzer presided over the hearing.

 

Produced by Eric L. VanDussen - ericlvandussen@gmail.com

[sho]

Thank you for filming, I'm about 20 min into it...

[Dr. Bob]

Fortunately it turned out well.

 

Dr. Bob

[Royal Smoke]

Seemed like the Twilight Zone to me in that court room.

 

 

So the judge says wait until your probation officer violates you and then we will have a show case case. Then he will rule later....

 

Kinda defeats the purpose they were there. They wanted the OK, so the risk would be removed.

It's not removed though, because the judge said he would deal with it later, if the probation officer violated him.

[sho]

I wish Mr Cox was still in office, at least then probationers could write for an opinion and have something to bring to their meeting.

[sho]

1. Cox was no friend to medical mj.

2. There are certain rules that pertain to getting an AG opinion on something and the rules wouldn't permit a probationer to ask for one. It would have to be submitted by your state senator, etc.

thank you for correcting me

[Dr. Bob]

1. Be prepared with the probation order, the original certification, a letter from the primary doctor.

2. Anticipate the common sense things the judge asked and have answers for them.

3. Be prepared to explain the difference between a recommendation and a prescription and why in this example they should be one and the same before the court. Cite examples.

4. Note that the requirements of probation is intended to regulate 'recreational' not medical use.

5. Try very hard not to tinkle off the judge.

 

Example of an argument.

 

Your honor, this is a case where a probationer has a valid recommendation for the medical use of marijuana to control his seizures. It is not a request to use marijuana recreationally. This gentleman has a long history of seizures due to trauma to his brain. Prior to getting a Michigan Medical Marijuana Card, his primary doctor had him on Marinol with excellent results as noted in these medical records. When the State of Michigan passed the MMMA, he was one of the first to get a card to use MMJ in the natural state. He has had excellent results. To prevent him from using MMJ as medication is arbitrary and capricious without benefit either to society or to 'rehabilitate' the defendant.

 

Frequently terms of probation restrict what is normally allowed under law. An example would be the consumption of alcohol. Clearly if the patient required medical treatment with alcohol, such as would be if he ingested rubbing alcohol as was treated with an ethanol drip, the court would not consider that consumption of a prohibited substance. Marijuana in the case of this defendant should be viewed in the same light.

 

Federal law indeed does make possession or use of marijuana a criminal offense, as does state law. The MMMA, which was the result of a voter initiative, is the direct voice of the people of Michigan to the courts, both state and federal. This defendant is the patient those voices were speaking of. As for the right of local courts to enforce federal law in the absence of federal courts, that certainly may be the case. But the federal courts are not absent and clearly the federal authorities have stated they have no interest in prosecuting bona fide medical patients such as the defendant who are using marijuana for medical reasons and in compliance with state law. State law in this case is clear, patients who are compliant with the Act should not be prosecuted or penalized, such as with a violation of probation.

 

Finally, the entire matter boils down to the prescription vs recommendation issue. In common use both share the element of a physician recommendation of treatment with medication for a condition. The elements of a prescription include a medication, a dosage, a frequency and a total amount. While with a case such a vicodin may have very strict adherence to this formula 'take 1 vicodin es every 6 hours by mouth dispense 120 per month', other legitimate prescriptions allow some patient control- 'take one every 6 hours AS NEEDED' and still be as legitimate. Other, such as colchicine are prescribe for effect rather than at specific dosages 'take one tab every 2 hours until symptoms resolve, vomiting occurs or 12 total tablets are taken'. Others such as coumadin are taken, blood levels monitored, until a particular lab target is reached (therapeutic blood level).

 

How is a 'recommendation' for medical marijuana truly different? It is merely a recommendation for a self administered drug to be used to effect- in this case relief of symptoms, to be held at a maximum dose end point (sleep occurs). Vicodin, colchicine and coumadin have significant adverse effects- up to and including death. Marijuana is self administered and titrated to effect because it is extremely safe and well within the ability of a patient to manage day to day, especially if a physician is available for guidance and to answer questions.

 

The only true distinction between a prescription and a recommendation for the use of marijuana is one of semantics- we cannot call it a prescription because it is illegal for a physician to actually prescribe. The state in the MMMA recognizes this by using the substitute term 'recommendation' and so should this court when it comes to the medical use of MMJ.

 

Dr. Bob

[Dr. Bob]

If that argument might have worked better, I don't know. I do know in this case the judge did deny the motion, but very clearly did so because he did not want to modify probation after the fact. Had the case been made at the time the terms of probation were made, it may well have been specifically allowed. In the event he was violated and a show cause was ordered I think the message was pretty clear that I as a PO would have to make a pretty good case to overcome the 'medical use with a card' argument.

 

So yes, I think it turned out ok.

 

Dr. Bob

[Dr. Bob]

All very good points. If you notice the def. atty didn't push the issue of script v. rec. The judge didn't fully understand that issue I believe. His hands were still tied but the point is that the atty didn't clear up the issue.

 

I am not an attorney, but given a choice I would go with my argument. When it was announced it was a 'poster case' I was looking forward to a very solid case. I kind of felt like I did when Sarah Palin went on Saturday Night with Tina Fey. Anticipated it all day with anticipation of a really funny episode. Didn't seem to turn out that well, in fact was rather humorless.

 

Dr. Bob

 

PS the script vs recommendation point was the key to the WHOLE argument. At least IMHO.