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Mmma Coa Opinion Re: Affirmative Defense - 08-30-11 - People V Reed


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The date on the attached opinion is a typo. It was actually released yesterday, although it says it was published on July 30. The court clerk told me she is going to issue an corrected version shortly. Also, here's a link to the opinion: http://coa.courts.mi.gov/documents/opinions/final/coa/20110830_c296686_31_296686.opn.pdf

 

"This case requires us, in part, to consider the applicability of the affirmative-defense portion of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. See MCL 333.26428(a). Defendant’s marijuana plants were discovered before any physician authorization, but defendant was not arrested until after he had obtained physician authorization, as well as a registry identification card from the Michigan Department of Community Health (MDCH). See MCL 333.26424. We stated in People v Kolanek, ___ Mich App ___; ___ NW2d ___; 2011 WL 92996 (2011), lv granted 489 Mich 956; 798 NW2d 509 (2011), slip op at 7, that the relevant deadline for obtaining the physician’s statement required to establish the affirmative defense in MCL 333.26428 was the time of a defendant’s arrest. We now extend that ruling and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense. We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense."<BR clear=all>

Eric L. VanDussen -

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"It would qualify as absurd if it were possible to assert the § 8 affirmative defense by obtaining a physician’s statement after the crime has been committed but before an arrest has been made.2 The law would provide less incentive to obtain a qualifying physician’s statement if it were construed the way defendant argues. This interpretation would also place too much emphasis on the police decision to arrest a suspect rather than the illegal conduct undertaken by that suspect."

 

God forbid police have to think about who they arrest.

 

"Here, it is undisputed that defendant did not acquire the required physician’s statement until after his marijuana had been discovered by HUNT. No reasonable jury could find that defendant is entitled to the § 8 defense, and thus defendant is barred from asserting it at trial."

 

They also reference the Oregon appelate court's ruling. I wonder if that means they will give as much weight to other states' findings that support medical marijuana?

 

Looks like they are continuing to affirm that the section 8 defense is not a separate protection from the registry card process. In essence, repeating that you must meet all of the requirements of the registry card program (including having a dr's recommendation and applying for a card) in order to exercise a section 8 defense. Of course, I have to ask if that were the case and the intent behind the law, why would section 8 have even been written? It would simply be redundancy, as the registry card progream is supposed to protect patients from arrest and prosecution. If, in following the registry card provisions, they were protected from arrest and prosecution, when would there ever be a time to exercisea section 8 defense?

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Res is correct. You have to actually see the doc prior to being caught. This makes sense as we don't people using a certification as a 'get out of jail free' card only after they are caught. The way it needs to go is that you don't use cannabis, you see a doctor with a qualifying condition, he gives you a certification, you send it to the registry, you wait your 21 days, THEN you start using cannabis. That is the way they want it to happen, so do it that way.

 

If you see the doctor, but refuse to participate in the registry, then be prepared to explain to a jury why they should accept that. Clearly once you have seen a doctor and been approved for a recommendation by that doctor, you have a case. It is up to you to make it. In my opinion, that is in the Act to account for terminal cancer patients that need relief in the last days of their life and may not live the 21 days. I think a jury would buy that. I wouldn't just go to a doc, get caught medicating for your knee pain 6 months later, and tell them I just didn't want to send the check in to the state for the registry because my interpretation of the Act says I don't need to.

 

Just my opinion, take it for what it is.

 

Dr. Bob

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Res is correct. You have to actually see the doc prior to being caught. This makes sense as we don't people using a certification as a 'get out of jail free' card only after they are caught. The way it needs to go is that you don't use cannabis, you see a doctor with a qualifying condition, he gives you a certification, you send it to the registry, you wait your 21 days, THEN you start using cannabis. That is the way they want it to happen, so do it that way.

 

If you see the doctor, but refuse to participate in the registry, then be prepared to explain to a jury why they should accept that. Clearly once you have seen a doctor and been approved for a recommendation by that doctor, you have a case. It is up to you to make it. In my opinion, that is in the Act to account for terminal cancer patients that need relief in the last days of their life and may not live the 21 days. I think a jury would buy that. I wouldn't just go to a doc, get caught medicating for your knee pain 6 months later, and tell them I just didn't want to send the check in to the state for the registry because my interpretation of the Act says I don't need to.

 

Just my opinion, take it for what it is.

 

Dr. Bob

 

AD might apply for those with just enough money to see a doctor but not necessarily have money to register. Another twist to this would be one who registered last year but couldn't afford either a doctors visit or the registration fees this year. If they want to push the fact you would have had to have the doctors recommendation prior to charges the above scenarios may apply. All in all everything I read and hear lately is disappointing!

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Res is correct. You have to actually see the doc prior to being caught. This makes sense as we don't people using a certification as a 'get out of jail free' card only after they are caught. The way it needs to go is that you don't use cannabis, you see a doctor with a qualifying condition, he gives you a certification, you send it to the registry, you wait your 21 days, THEN you start using cannabis. That is the way they want it to happen, so do it that way.

 

If you see the doctor, but refuse to participate in the registry, then be prepared to explain to a jury why they should accept that. Clearly once you have seen a doctor and been approved for a recommendation by that doctor, you have a case. It is up to you to make it. In my opinion, that is in the Act to account for terminal cancer patients that need relief in the last days of their life and may not live the 21 days. I think a jury would buy that. I wouldn't just go to a doc, get caught medicating for your knee pain 6 months later, and tell them I just didn't want to send the check in to the state for the registry because my interpretation of the Act says I don't need to.

 

Just my opinion, take it for what it is.

 

Dr. Bob

 

The very first item that should be considered: "Does this patient have a real condition?"

 

The condition exists before the doctor recognizes the condition and issues a letter.

 

The voters said stop putting sick people in jail. This court is twisting everything it can to do the opposite.

 

Past tense and section 4.

 

A person is supposed to be immune from arrest and prosecution if they have the card.

They said that the arrest is the line that the ID card must be received before.

So they wish to apply past tense to arrest but not to prosecution .. As in "must have the card before prosecution."

 

This is simply a small group of people that have decided that people should be in jail no matter what.

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The very first item that should be considered: "Does this patient have a real condition?"

 

The condition exists before the doctor recognizes the condition and issues a letter.

 

The voters said stop putting sick people in jail. This court is twisting everything it can to do the opposite.

 

Past tense and section 4.

 

A person is supposed to be immune from arrest and prosecution if they have the card.

They said that the arrest is the line that the ID card must be received before.

So they wish to apply past tense to arrest but not to prosecution .. As in "must have the card before prosecution."

 

This is simply a small group of people that have decided that people should be in jail no matter what.

 

I had a patient in this position a couple of months ago. Nail Patella, a congenital condition he clearly had from birth. He is in jail because he was certified after the cops showed up, I wrote a letter to the judge and everything explaining it was life long. N'uff said.

 

Dr. Bob

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Res is correct. You have to actually see the doc prior to being caught. This makes sense as we don't people using a certification as a 'get out of jail free' card only after they are caught. The way it needs to go is that you don't use cannabis, you see a doctor with a qualifying condition, he gives you a certification, you send it to the registry, you wait your 21 days, THEN you start using cannabis. That is the way they want it to happen, so do it that way.

 

If you see the doctor, but refuse to participate in the registry, then be prepared to explain to a jury why they should accept that. Clearly once you have seen a doctor and been approved for a recommendation by that doctor, you have a case. It is up to you to make it. In my opinion, that is in the Act to account for terminal cancer patients that need relief in the last days of their life and may not live the 21 days. I think a jury would buy that. I wouldn't just go to a doc, get caught medicating for your knee pain 6 months later, and tell them I just didn't want to send the check in to the state for the registry because my interpretation of the Act says I don't need to.

 

Just my opinion, take it for what it is.

 

Dr. Bob

 

 

I think following your advice is very wise . Yet I am sure the law didn't intend for the recommendaiton to be more important then the conditions existance and saftey of the patient . The whole point is if you have a qualifying condition and can prove it exists at the time of arrest or your violation of normal State cannabis Laws you should have your charges dropped . We know this helps people who would otherwise break the suicide law which personally I find more serious being raised Catholic though being a pain patient with severe pain I fear being held in jail or foster care without adaptable comforts and pain control more .

 

I don't believe my God would send me to hell for not be able to face the thought of increased pain and the torture jail or foster care would cause . True severe chronic pain patients fear not having the alternative of ending life as easy as it is on the outside . We just don't do it because we respect life and know if we hang in there ..there are better times . A hour ,or longer somewhere in the future that makes living worthwhile . Were going to be dead forever ....and God asks us not to take our own life as short as it is .

 

No technicallities should not put patients in jail and what prosecutors and many are doing is wrong . You always err on the side of the customer , citizen , patient . I think many are having trouble with where to draw the line . Thats where I have trouble but I dont feel unqualified I assure you . I just hate to think of anyone in jail for simple cannabis use . Nothing good comes from it .

Edited by Croppled1
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I think following your advice is very wise . Yet I am sure the law didn't intend for the recommendaiton to be more important then the conditions existance and saftey of the patient . The whole point is if you have a qualifying condition and can prove it exists at the time of arrest or your violation of normal State cannabis Laws you should have your charges dropped . We know this helps people who would otherwise break the suicide law which personally I find more serious being raised Catholic though being a pain patient with severe pain I fear being held in jail or foster care without adaptable comforts and pain control more .

 

I don't believe my God would send me to hell for not be able to face the thought of increased pain and the torture jail or foster care would cause . True severe chronic pain patients fear not having the alternative of ending life as easy as it is on the outside . We just don't do it because we respect life and know if we hang in there ..there are better times . A hour ,or longer somewhere in the future that makes living worthwhile . Were going to be dead forever ....and God asks us not to take our own life as short as it is .

 

No technicallities should not put patients in jail and what prosecutors and many are doing is wrong . You always err on the side of the customer , citizen , patient . I think many are having trouble with where to draw the line . Thats where I have trouble but I dont feel unqualified I assure you . I just hate to think of anyone in jail for simple cannabis use . Nothing good comes from it .

 

:goodjob: :goodjob: :goodjob:

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"It would qualify as absurd if it were possible to assert the § 8 affirmative defense by obtaining a physician’s statement after the crime has been committed but before an arrest has been made.2 The law would provide less incentive to obtain a qualifying physician’s statement if it were construed the way defendant argues. This interpretation would also place too much emphasis on the police decision to arrest a suspect rather than the illegal conduct undertaken by that suspect."

 

God forbid police have to think about who they arrest.

 

"Here, it is undisputed that defendant did not acquire the required physician’s statement until after his marijuana had been discovered by HUNT. No reasonable jury could find that defendant is entitled to the § 8 defense, and thus defendant is barred from asserting it at trial."

 

They also reference the Oregon appelate court's ruling. I wonder if that means they will give as much weight to other states' findings that support medical marijuana?

 

Looks like they are continuing to affirm that the section 8 defense is not a separate protection from the registry card process. In essence, repeating that you must meet all of the requirements of the registry card program (including having a dr's recommendation and applying for a card) in order to exercise a section 8 defense. Of course, I have to ask if that were the case and the intent behind the law, why would section 8 have even been written? It would simply be redundancy, as the registry card progream is supposed to protect patients from arrest and prosecution. If, in following the registry card provisions, they were protected from arrest and prosecution, when would there ever be a time to exercisea section 8 defense? i think that is bobandtorey's case

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"It would qualify as absurd if it were possible to assert the § 8 affirmative defense by obtaining a physician’s statement after the crime has been committed but before an arrest has been made.2 The law would provide less incentive to obtain a qualifying physician’s statement if it were construed the way defendant argues. This interpretation would also place too much emphasis on the police decision to arrest a suspect rather than the illegal conduct undertaken by that suspect."

 

God forbid police have to think about who they arrest.

 

"Here, it is undisputed that defendant did not acquire the required physician’s statement until after his marijuana had been discovered by HUNT. No reasonable jury could find that defendant is entitled to the § 8 defense, and thus defendant is barred from asserting it at trial."

 

They also reference the Oregon appelate court's ruling. I wonder if that means they will give as much weight to other states' findings that support medical marijuana?

 

Looks like they are continuing to affirm that the section 8 defense is not a separate protection from the registry card process. In essence, repeating that you must meet all of the requirements of the registry card program (including having a dr's recommendation and applying for a card) in order to exercise a section 8 defense. Of course, I have to ask if that were the case and the intent behind the law, why would section 8 have even been written? It would simply be redundancy, as the registry card progream is supposed to protect patients from arrest and prosecution. If, in following the registry card provisions, they were protected from arrest and prosecution, when would there ever be a time to exercisea section 8 defense?

This makes no sense what so ever, If you had a registry card, you wouldn't have to use section 8. These judges should be ordered to undergo psychiatric evaluations!

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AD might apply for those with just enough money to see a doctor but not necessarily have money to register. Another twist to this would be one who registered last year but couldn't afford either a doctors visit or the registration fees this year. If they want to push the fact you would have had to have the doctors recommendation prior to charges the above scenarios may apply. All in all everything I read and hear lately is disappointing!

But wouldn't the recommendation expire after one year like the card does. Isn't that the purpose of a dr/pt relationship.

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People Vs Reed has nothing to do with plastic or paper, but timing. The defendant waited until after arrest to obtain his cert. Section 8 was applied correctly. You can't use the affirmative defense without satisfying the necessary prongs of the defense. Reed failed because he waited until after arrest to obtain his card. This court affirmed unregistered patients. It is a win for people who get certified prior to arrest. Thanks, Bb

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Blueberry he had his care before the arrest but not before the commission of the purported offence. As part of his defence he used decision of People V Kolanex "The relevant deadline for obtaining the physicians statement required to establish the affirmative defence was time of defendants arrest".

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  • 3 weeks later...

AD might apply for those with just enough money to see a doctor but not necessarily have money to register. Another twist to this would be one who registered last year but couldn't afford either a doctors visit or the registration fees this year. If they want to push the fact you would have had to have the doctors recommendation prior to charges the above scenarios may apply. All in all everything I read and hear lately is disappointing!

 

This will be put to the test today in Emmet, as was the exact situation here in my case. Received Dr.'s Rec June 3rd, Raided June 17th, Arrested much after. Wish me luck!onguard.gif

 

 

 

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My only question is the time frame. From when they saw the said cannabis plants to the time of his arrest. Why the wait? Just curious. If they saw plants and saw him and the plants together why not confront the person immediatly no rec go to jail. Plain but spotting said plants and not coming for the person seems odd to me. Perhaps they were hoping for a distribution charge as well but it seems to me if they did not act in time to catch him growing illegally that is on the Leo. However yet again the courts rule on the side of Leo no surprise to me. Especially from the current schuette lackies holding the COA as his personal hit squad.

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People Vs Reed has nothing to do with plastic or paper, but timing. The defendant waited until after arrest to obtain his cert. Section 8 was applied correctly. You can't use the affirmative defense without satisfying the necessary prongs of the defense. Reed failed because he waited until after arrest to obtain his card. This court affirmed unregistered patients. It is a win for people who get certified prior to arrest. Thanks, Bb

 

It is a win for people who get certified prior to arrest. Thanks, Bb

this would be great if it was true then we would not still be in court IMHO

Peace From The Front

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any one see the vid with Karen O'Keife. She was one of the main lawyers working on the Act we enacted. Her opinion, is the intention of the wording of both a section 4 defense, and the section 8, was intended to cover non registered patients as long as the prongs of the defence were satisfied. ie, Need as in qualified ailment, Drs recomendation that the need is factual, and that cannabis would likely be helpfull, and was within the alloted allowed amounts pertaining to the act, even if they were not registered With the registry list, even at the time of arrest. in her opinion, it should also be retroactive from the date of passing in 08.

 

accordering to her statments on the video i seen, the way the proposal was written for the petetion, which was successfully satisfied, and the wording of the ballot initative, as it would of been generally understood by the public that read, and subsequently voted yes too.

 

Infact, she even mentions the actual wording that we seen on the ballot to vote on, was actaully introduced by the committee that handles how the ballots are governed here in the state. I dont recall the name of the actual commitee atm, but it will come to me if i dont look it up first.

 

very interesting opinion, by the lawyer that admistered much of the law as we enacted it. If only our darn ELECTED officials would just implement it as it was offered for vote, and "We the Voting Peoples of this great State of Michigan" Passed the initative into the 2008 Michigan Medical Marihuana Act.

Edited by Timmahh
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