Patient To Patient Transfer-Legality

[Highlander]

With voter initiatives they have to look at the voters intent, since they were the legislators. If confusion still exist, then they have to break out the dictionary. I've seen some bizarre stuff when it comes to this law. I hope the courts live up to their responsibility or there will be chaos. Thanks, Bb

 

Isn't breaking out the dictionary done before voter intent is examined? Then if what the law says is still unclear, voter intent is considered.

[Highlander]

 

When you ask how does it help the patient, it depends on which patient you are talking about. As a CG I can assist "A patient" with medical use. it does NOT have to be my patient. So I am helping a patient with use because I am delivering it to them. Cedar

 

 

This position does have a lot of merit, but do understand that the COA opinion issued last year by Judge O'Connell in the Oakland district is that the phrase "to which he is connected through the dept's registration process" still applies - that the phrase is used at the beginning of the section to qualify "a patient" and that qualification runs through the entirety of the section. He likened it to tax law stating that husband and wife can file jointly (no pun intended) and that one might say that "a" husband can file jointly with "a" wife - not necessarily his wife, and that tax law doesn't say "a husband and wife, who are married to each other, may file jointly."

 

I'm not agreeing or disagreeing with this, but we know where the case law on this is likely to be established - in the Oakland district, since that is where the more advanced cases are, and we KNOW what how the judges will rule on the matter, since they already told us.

 

You can pretty much bet that case law will establish that "a patient" in this regard will be narrowed to mean "a patient registered to the CG."

[CedarSpringsCG]

This position does have a lot of merit, but do understand that the COA opinion issued last year by Judge O'Connell in the Oakland district is that the phrase "to which he is connected through the dept's registration process" still applies - that the phrase is used at the beginning of the section to qualify "a patient" and that qualification runs through the entirety of the section. He likened it to tax law stating that husband and wife can file jointly (no pun intended) and that one might say that "a" husband can file jointly with "a" wife - not necessarily his wife, and that tax law doesn't say "a husband and wife, who are married to each other, may file jointly."

 

I'm not agreeing or disagreeing with this, but we know where the case law on this is likely to be established - in the Oakland district, since that is where the more advanced cases are, and we KNOW what how the judges will rule on the matter, since they already told us.

 

You can pretty much bet that case law will establish that "a patient" in this regard will be narrowed to mean "a patient registered to the CG."

 

The tax law is an interesting argument, however last I checked the tax law doesn't say "a" husband and "a" wife, it says a husband and wife may file jointly. the MPP was smart in specifically adding that "a". Also when they look at other states that specifically allow this, in clear language, it adds to our case to allow it.

 

Also, case law will determine this, but eventually it will get past Oakland, to Appeals, and on up to the MI Supreme Court. Even the courts cannot change the wording of our law.

 

One of the best arguments I think that allows for transfer to anyone registered is that there is no defined way to get seeds, clones, or meds without it. You don't get a packet of seeds when you get your card, you can't go to a store and buy some, there is no legal way to obtain your meds from scratch without transfer.

 

Now one could ask how did it start then legally in the first place? Well they weren't caught, that's how. But now that it is started, if transfers are legal, we could make the argument that we now have the ability to keep the community 100% legal.

 

Anyway, it is possible Oakland is going to narrow it down, but I still believe that once it gets all the way to the top, the Supreme Court Justices will rule favorably for us. I am lucky to not be one of the people who have to take it all the way there to find out.

 

Cedar

[Highlander]

The tax law is an interesting argument, however last I checked the tax law doesn't say "a" husband and "a" wife, it says a husband and wife may file jointly. the MPP was smart in specifically adding that "a". Also when they look at other states that specifically allow this, in clear language, it adds to our case to allow it.

 

Also, case law will determine this, but eventually it will get past Oakland, to Appeals, and on up to the MI Supreme Court. Even the courts cannot change the wording of our law.

 

One of the best arguments I think that allows for transfer to anyone registered is that there is no defined way to get seeds, clones, or meds without it. You don't get a packet of seeds when you get your card, you can't go to a store and buy some, there is no legal way to obtain your meds from scratch without transfer.

 

Now one could ask how did it start then legally in the first place? Well they weren't caught, that's how. But now that it is started, if transfers are legal, we could make the argument that we now have the ability to keep the community 100% legal.

 

Anyway, it is possible Oakland is going to narrow it down, but I still believe that once it gets all the way to the top, the Supreme Court Justices will rule favorably for us. I am lucky to not be one of the people who have to take it all the way there to find out.

 

Cedar

 

The Oakland judge who issued the opinion was a COA judge. He wasn't ruling on p2p transfer, but he added his opinion and said he was trying to help clear things up. I think he was sending a clear message to the LEOs and PAs in his jurisdiction - "Hand me an appeal on p2p transfer, and we'll make case law to make it illegal." With the current makeup of the Supreme Court in MI, I'm not at all confident they would even hear an appeal of such a COA ruling, let alone reverse it. Our best hope right now is the Burdick appeal. The judge in that case said p2p is OK, and the PA has appealed. My hope is that he COA will uphold this. It really is a race to see which way this goes.

[peanutbutter]

Given that the act defines medical use, the term, when used in the act, will always be used to mean what that specific definition indicates unless otherwise unambiguously indicated. That is statutory interpretation 101. Your position is that the reason they included "in accordance..." was to make it clear that it meant the act's definition and not a meaning decided by "the public in general." No.

 

Thank you very much for point out my error.

 

Your thoughts about the ballot language about unregistered caregivers?

[Dr. Bob]

One point hasn't been brought up. Consider this hypothetical situation....

 

I am a patient and want to become a caregiver.

Where am I to obtain my initial plants/seeds to start my garden?

Clearly, under the current opinion of mosts courts and LEO, I should obtain my plants from my caregiver, as he is the only one that can transfer MMJ to me, his patient. I don't think anyone could poke a hole in my caregiver giving me a clone or two so I could start a garden for my new patients.

 

Let's take this back to the first legal caregiver in Michigan, right as the law passed. How was he to obtain plants? Does the law specify that he, caregiver number one, was to obtain his plants from a state sanctioned greenhouse? Or from a caregiver in another legal state? Or did the state anticipate that they would spontaneously generate if a pot of dirt was put under a grow light.

 

My analysis, and I'd like to hear from a real lawyer, is as follows.

 

1. The law clearly intended that the first legal caregiver in Michigan would be able to obtain a plant or two to start his garden and that transaction would be considered a legal transfer, regardless of the source of the plant. It defies sense to assume that the MMMA would be initiated by an illegal act. This is another clear implication of the term 'any person may assist'.

 

2. Given the fact that first caregiver needed to obtain plants, and it is such a self evident and obvious event, it has to be assumed by any reasonable person that he had to get them from somewhere. Had a particular transfer method been desired (ie a state run greenhouse or a caregiver from a legal state) it would have been spelled out in the law.

 

3. Had a special provision existed for that first caregiver, it not only would be spelled out in the law, but it would have clearly been limited to just the first caregiver.

 

Let's digest this for a moment.....

 

Unless anyone can show an error in my logic, it is clear to me that the intent of the law was to allow the first caregiver to obtain plants as a legal transfer from any person, and since it was not specifically limited to just that first caregiver, any caregiver can still obtain his/her initial plants in the same way- from any source...any person.

 

The logical extension of this concept would be to not limit it simply to live plants. In terms of patient to patient transfer, can the same 'any person' transfer marijuana to a caregiver just as they can transfer plants? Can this same 'any person' transfer directly to a patient? I believe the answer is yes, but it clearly must stand the test of the courts.

 

What are the limits of any person?

 

Can a non-patient roll a joint for a patient? I think yes.

Can a non-patient get marijuana from another room in the house and bring it to the patient? I think yes again?

 

In both cases the possession of marijuana is 'incidental' to assisting the patient.

 

Here are a couple of other thoughts- Can a non-patient hold marijuana at another building where the patient can 'visit' and get medication without that non-patient being charged with possession when the patient is not present? Can a non-patient drive to a remote spot, get marijuana and bring it back to the patient? I think both situations carry an unacceptable risk and are a bit shaky because the non-patient cannot legally 'possess' marijuana in any amount other than incidental to directly helping a patient. But a patient can be an 'any person' too, and is allowed to possess marijuana in limited quantities to boot. If the non-patient in these two situations is instead a legal patient himself, allowed to possess MMJ, the level of risk goes down exponentially to the point it is a solid legal argument.

 

Dr. Bob

[Guest Happy Guy]

The law expected you to buy your first supplies, and any there after, from any source you want. The law didn't protect your source. You can't hold it against a law that it didn't have any common sense. Blame it on the people that wrote it. They wrote it that way to have the least objections to it, so it could pass. So it did not provide the protections it should have... so it could get less opposition. I believe that is the truth. I'm not an attorney, but I have listened to Karen a lot.

[Dr. Bob]

The law expected you to buy your first supplies, and any there after, from any source you want. The law didn't protect your source. You can't hold it against a law that it didn't have any common sense. Blame it on the people that wrote it. They wrote it that way to have the least objections to it, so it could pass. So it did not provide the protections it should have... so it could get less opposition. I believe that is the truth. I'm not an attorney, but I have listened to Karen a lot.

 

So your response to my argument is that the Act is designed to be started with an illegal act? Is it more logical to assume that the law was designed to create a criminal, or figure out how the Act prevented people from being criminals while following the clear intent of the law and gave them the tools they needed to be legal? That is what my arguments are based on.

 

Dr. Bob

[peanutbutter]

The law expected you to buy your first supplies, and any there after, from any source you want. The law didn't protect your source. You can't hold it against a law that it didn't have any common sense. Blame it on the people that wrote it. They wrote it that way to have the least objections to it, so it could pass. So it did not provide the protections it should have... so it could get less opposition. I believe that is the truth. I'm not an attorney, but I have listened to Karen a lot.

 

I would disagree. The source was intended to be protected.

 

This law intended patients to be enabled to get their medicine from somewhere.

 

Patients are NOT required to have a caregiver. And a large percentage don't have a caregiver?

 

The actions of acquire and transfer are lawful actions if done in accordance with the act. It's not that the person is legal, the action is legal.

 

Now then .. courts are deciding such things. We don't know one way or the other what the courts will say. Not yet.

[Dr. Bob]

I would disagree. The source was intended to be protected.

 

This law intended patients to be enabled to get their medicine from somewhere.

 

Patients are NOT required to have a caregiver. And a large percentage don't have a caregiver?

 

The actions of acquire and transfer are lawful actions if done in accordance with the act. It's not that the person is legal, the action is legal.

 

Now then .. courts are deciding such things. We don't know one way or the other what the courts will say. Not yet.

 

I would clarify that patients are required to have a caregiver, either another qualified patient or themselves. Test that for yourself by leaving the caregiver section blank and you will not get a card. Same if a 'qualifying diagnosis' box isn't checked. They do not read the remarks and if you don't follow the form they will not issue a card.

 

Peanutbutter, I am glad you see exactly the point I am making. Laws do not create conditions that foster a criminal act. Therefore, if the law requires you to do something, that something must be legal. Name ONE law that requires someone to 'take one for the team' and commit a crime. That is the basis of my argument. Since the first caregiver in Michigan HAD to obtain plants from a 'person' that person and the transfer are implicitly legal as the situation is unavoidable under the act. As that same act, the first caregiver getting plants, was not 'carved out' as an isolate, one time event, it is still there and a key example of an argument for patient to patient as I outlined.

 

We are not going to beat logical people (lawyers, judges, the AG) by getting emotional or bull headed. We need to match their logic with our own and get it in front of a jury. I have presented a logical argument. Play prosecutor and try and out think me. How am I wrong? Don't just get cynical and say it was a poor law and someone had to commit a crime along the line. I don't use, and voted for it based on my understanding of what is right for patients. Don't worry about what political wiggling needed to be done to get it on the ballot, worry instead about why I voted for it, along with 63% of the general population that didn't have access to the inner workings of some smoke filled room in Washington.

 

Dr. Bob

[peanutbutter]

I would clarify that patients are required to have a caregiver, either another qualified patient or themselves. Test that for yourself by leaving the caregiver section blank and you will not get a card. Same if a 'qualifying diagnosis' box isn't checked. They do not read the remarks and if you don't follow the form they will not issue a card.

 

I left it blank on both my first app and my re-up. Got my cards both times.

[Guest Happy Guy]

So your response to my argument is that the Act is designed to be started with an illegal act? Is it more logical to assume that the law was designed to create a criminal, or figure out how the Act prevented people from being criminals while following the clear intent of the law and gave them the tools they needed to be legal? That is what my arguments are based on.

 

Dr. Bob

Logical or not, if you ask the writers, that's what they say. They say it on tape.

If you want to argue otherwise to make a point then you can make the point that it was wrong not to protect the suppliers. But there was no secret legal supply in the wording.

[Dr. Bob]

I left it blank on both my first app and my re-up. Got my cards both times.

 

You are your own caregiver then.

 

Dr. Bob

[peanutbutter]

You are your own caregiver then.

 

Dr. Bob

 

No .. in big bold letters on the back of the card it says "NO CAREGIVER."

 

Lets see how that would work out ..

 

As a caregiver, I'm not allowed to have plants. My patient is the one that may have the plants.

 

And .. only the caregiver part of me may transfer to the patient part of me .. and the patient part can not transfer to the caregiver part of me ..

 

This just turned into a gray area.

[Dr. Bob]

Logical or not, if you ask the writers, that's what they say. They say it on tape.

If you want to argue otherwise to make a point then you can make the point that it was wrong not to protect the suppliers. But there was no secret legal supply in the wording.

 

That is because it was assumed as the only course of action. To state otherwise only weakens the law and makes the entire Act something that is based on a criminal act from the get go. Further discussion down this road only will give LEO ammunition so I am resting on my argument as to why they are protected.

 

One thing constantly came up in the probation case Eric recorded and placed on the forum. The judge constantly reminded the patient's lawyer that he was in court and needed to put forth a legal argument, not opinion, and the ruling would be based on the arguments of the defense and the prosecutor. I've put forth a legal (as best I can as a non-attorney) argument and I'll leave it to others to judge. But I am done with this discussion if the counterpoint is that the Act was based on criminal activity from the start.

 

Dr. Bob

[Dr. Bob]

No .. in big bold letters on the back of the card it says "NO CAREGIVER."

 

Lets see how that would work out ..

 

As a caregiver, I'm not allowed to have plants. My patient is the one that may have the plants.

 

And .. only the caregiver part of me may transfer to the patient part of me .. and the patient part can not transfer to the caregiver part of me ..

 

This just turned into a gray area.

 

Pb, you are mistaken. The caregiver is the one responsible for providing your medication to you. If you have your own plants, and no caregiver, you are your own caregiver. No Caregiver stamped on the back of the card is the confirmation you may have your own plants. You have no outside caregiver. It is confirmation if you are found to have a garden, and a card, that you don't have any other plants elsewhere with a caregiver.

 

In general, the caregiver is the one that possesses the plants. There are only two possibilities for who has the plants, patient/applicant and caregiver. While it is possible for the patient to have their own plants, and have someone come over to tend them, I've only seen a couple do that.

 

Patient cards are blue as I recall, and caregiver cards are green. I am not sure if a patient that is his own caregiver will have a blue or a green card, but if you are a caregiver for others it is green with their name on it and yours.

 

Not challenging your word Pb, but with something like this the language needs to be precise. The caregiver is what he is. He may or may not be the patient, or even a patient at all. He is a grower or responsible somehow to obtain the medication for his designated patient (including himself if he is his own caregiver).

 

As for leaving your caregiver blank on the form, I've heard of that getting through on folks that checked applicant/patient as the possessor of the plants because it is clear the patient is his own caregiver. But for safety sake I always have self caregivers like you write 'self' in the caregiver box to take out one chance for them to reject the application.

 

Dr. Bob

[Dr. Bob]

I have just reviewed the administrative rules again. While the section discussing primary caregivers and applicants without caregivers clearly states the activities of a primary caregiver for a patient is the same as what a patient may do themselves are both subject to the same limitations as far as plant counts, etc, the term 'primary caregiver' clearly refers to someone growing for another. The patient that grows themselves is not termed a 'caregiver'. So I stand corrected PB.

 

Dr. Bob

[peanutbutter]

I have just reviewed the administrative rules again. While the section discussing primary caregivers and applicants without caregivers clearly states the activities of a primary caregiver for a patient is the same as what a patient may do themselves are both subject to the same limitations as far as plant counts, etc, the term 'primary caregiver' clearly refers to someone growing for another. The patient that grows themselves is not termed a 'caregiver'. So I stand corrected PB.

 

Dr. Bob

 

You may find it interesting to note that caregiver cards have been issued that say the caregiver is not allowed to have plants. At the same time patient cards have bee issued where the patient has the right to have plants yet there is a caregiver listed on the back.

[Dr. Bob]

You may find it interesting to note that caregiver cards have been issued that say the caregiver is not allowed to have plants. At the same time patient cards have bee issued where the patient has the right to have plants yet there is a caregiver listed on the back.

 

I have seen the latter.

 

Dr. Bob

[+Green Cross]

...caregiver cards have been issued that say the caregiver is not allowed to have plants....patient cards have been issued where the patient has the right to have plants yet there is a caregiver listed on the back.

 

Both scenarios are true and legit. Here's why. If a patient/applicant submits an app or renewal indicating they want to possess their own plants -and- have a caregiver (who supplies all bona fides and is approved), MMMP issues two cards:

1) a blue patient ID card on front saying YES to possessing plants; on the rear it displays the caregiver name, address, DOB, and caregiver ID number.

2) a green caregiver ID on front saying NO to possessing plants; on the back it displays the patient's name, address, DOB, and patient ID number.

 

Folks, this legit admin action has helped a lot of patients maintain 5 ozs. of meds legally. It's based on the fact that each card allows its owner to possess 2.5 ounces of usable meds. For example, say a wife applies for a patient ID card allowing her to possess the plants while husband signs up as her caregiver. No extra charge from the state to issue two cards, and both persons may possess 2.5 ounces of meds for use by the qualified patient. However, note that the husband/caregiver is not permitted to use mmj just because he has a caregiver card -- in order to use meds legally he'd also need to have a patient card. But for a lot of people these days with low incomes, both of 'em being able to possess 2.5 ozs legally may be their only way to get a card at all if they lack valid medical records and funds supporting getting a patient card. Hope this helps.

[Scooter]

There is one state of mind that believes, according to the statute, a CG who is not a patient can only transfer to his registered patients. This makes sense somewhat, but can be easily sidestepped by the CG transferring to a patient who then transfers to a patient. Just my 2 cents. But the MSP did state they saw legality is P to P transfers last year, and have been following that rule mostly (mostly, says the little girl in Poltergeist )And I myself have had run ins with LEO while making transfers to other patients and had no issues once I showed them my copy of the law with the pertinent sections highlighted. I advise EVERY patient and CG to carry a copy of the entire law with them any time they are transporting. I even keep a copy at my front door at home as well.

 

And the method GC and others described is 100% legal in the law. It allows for 5 ounces of possession in the same household. Just keep the 2.5s in separate areas, of course:) I have informed many patients to make their wives/girlfriends or husbands/boyfriends their CGs to (a) give them protection and (b) allow for larger amounts on hand. Most sent in change forms, and all is well.

[MORE COWBELL]

And I myself have had run ins with LEO while making transfers to other patients and had no issues once I showed them my copy of the law with the pertinent sections highlighted. I advise EVERY patient and CG to carry a copy of the entire law with them any time they are transporting. I even keep a copy at my front door at home as well. And the method GC and others described is 100% legal in the law. It allows for 5 ounces of possession in the same household. Just keep the 2.5s in separate areas, of course:)

 

 

Scooter... wise advice all should follow

[Scooter]

ALL should read it. Then read it again, and so on. When you can show LEO you have a good understanding of it ( most times far better than they LOL ) they will be taken aback and rethink their position of "authorita "( as Cartman would put it )