Msp Update After Mcquen And Reed.

[Michael Komorn]

MICHIGAN STATE POLICE LEGAL UPDATE

NNO. 89 September 8, 2011 Past editions can be found at www.michigan.gov/msp-legal.

This update is published by the Michigan State Police, Office of the Director, Legal Resource

and Education Unit. Questions and comments may be directed to MSPLegal@michigan.gov.

CRIMINAL LAW The Michigan Medical Marihuana Act

does not permit the sale of marihuana

In State v. McQueen, the defendants owned and operated a medical marihuana dispensary. One of the defendants was a registered patient and a registered caregiver and the other defendant was a registered caregiver. Members of the dispensary were either registered patients or registered primary caregivers. Members were able to store marihuana at the dispensary inside lockers they rented from the dispensary. The stored marihuana was available for purchase to other members of the dispensary. The dispensary charged a service fee for each sale.

In July 2010, the Isabella County Prosecuting Attorney filed a complaint to shut down the dispensary alleging the operation of the dispensary was a public nuisance because it was operated in violation of the provisions of the Michigan Medical Marihuana Act (MMMA) and the Public Health Code (PHC). The defendants argued the MMMA authorizes patient-to- patient sales of marihuana. The trial court concluded the dispensary was in compliance with the MMMA and denied the complaint. The prosecutor appealed.

The Michigan Court of Appeals stated the MMMA does not legalize the possession, use, or delivery of marihuana; rather, the MMMA sets forth very limited circumstances in which persons involved in marihuana use, and who are thereby violating the PHC, may avoid criminal liability.

The Court concluded the MMMA does not authorize marihuana dispensaries and the MMMA does not permit the sale of marihuana. The Court reasoned the “delivery” and “transfer” of marihuana allowed under the definition of “medical use” contained in the MMMA is not equivalent to

sale of marihuana. Sale consists of delivery or transfer plus the receipt of compensation which is not allowed under any provision of the MMMA.

The Court ruled that, because the defendants’ operation of the dispensary was not in accordance with the MMMA and was in violation of the PHC, the dispensary was a public nuisance for which the prosecutor could obtain an order to stop the nuisance and prohibit the defendants from continuing to operate the dispensary.

The Michigan Medical Marihuana Act requires the physician’s statement occur before the illegal conduct in order for the affirmative defense to apply and in order for the person to be immune from arrest, prosecution, or penalty

As discussed in MSP Legal Update No. 69, the medical purpose for using marihuana may be asserted as an affirmative defense to any prosecution involving marihuana. MCL 333.26428(b) requires dismissal of charges if a person proves the following:

1.A physician has stated the patient is likely to receive a medical benefit from marihuana use;

2. The person did not possess more marihuana than reasonably necessary to ensure the uninterrupted availability for treating a patient; and

3. The possession, manufacture, or delivery was done for the purpose of treating the patient.

In People v. Reed, undercover officers observed marihuana plants growing at the defendant’s residence. The defendant suffered from chronic back pain. Prior to officers observing the marihuana, the defendant had not obtained certification from a physician stating the defendant was likely to receive benefit from the medical use of marihuana. After the marihuana was observed, but before the defendant was arrested, the defendant obtained written

This update is provided for informational purposes only. Officers should contact their local prosecutor for an interpretation before applying the information contained in this update.

MSP Legal Update No. 89 Page 2 of 2

certification and he also obtained a registry identification card. Ten days after receiving the registry identification card, the defendant was arrested and charged with the manufacture of marihuana. The defendant filed a motion to dismiss the charges based on the affirmative defense section of the MMMA, MCL 333.26428(b), and MCL 333.26424(a). The trial court denied the motion.

Previously, in the case of People v. Kolanek, the Court held the physician’s statement required in order to assert the affirmative defense had to occur prior to arrest. In Kolanek, the discovery of the crime and the arrest were simultaneous. The Kolanek Court stated it was reasonable to assume the affirmative defense contained in the MMMA was intended to protect those who had an actual medical basis for marihuana use recognized by a physician prior to the marijuana use and was not intended to provide an after-the-fact exemption for otherwise illegal conduct.

Following the same rationale used in Kolanek, the Court held for the affirmative defense section of the MMMA to apply, the physician’s statement must occur before the illegal conduct. In this case, the defendant did not obtain the physician’s statement until after the illegal conduct (manufacturing marihuana) had occurred; therefore, the affirmative defense did not apply. In other words, a person must obtain a physician’s statement before violating the PHC.

The Court also held the defendant was not immune from prosecution under MCL 333.26424(a), which prohibits the arrest or prosecution of a patient who has been issued and possesses a registry identification card for the medical use of marihuana in accordance with the MMMA. The Court reasoned the defendant was not immune from arrest, prosecution, or penalty because the defendant had not been issued a registry identification card at the time he engaged in the cultivation of marihuana.

When questioning suspects regarding incidents involving marihuana where the suspect does not have a registry identification card, officers are encouraged to inquire as to whether the suspect has

seen a physician regarding the medical use of marihuana and whether the doctor has stated the suspect is likely to receive a medical benefit from marihuana use. Officers should document in their report that such questions were asked, the suspect’s answers, the name of the physician, if any, and the date the suspect sought the physician’s opinion.

SUBSCRIPTIONS

In order to receive the Update via e-mail, click here or go to www.michigan.gov/msp-legal and click on “subscribe to legal updates.”

CRIMINAL LAW AND PROCEDURE MANUAL

The 2010 edition of Michigan Criminal Law and Procedure: A Manual for Michigan Police Officers is available for purchase.

The manual is published by Kendall Hunt Publishing Co. Copies may be ordered by calling Kendall Hunt Customer Service at (800) 228-0810, or through their online catalog (search by title or ISBN: 978-0-7575- 8710-8).

This update is provided for informational purposes only. Officers should contact their local prosecutor for an interpretation before applying the information contained in this update.

 

 

posted by

Michael Komorn

18006563557

[+Annnie]

bump'

[Shredder]

I can't wait for the next memo after this case hits the supreme court. It will say something like, ughh forget the other memo, and call your lawyer were about to be sued, the sheet has hit the fan......shredder

[peanutbutter]

This is the first time I've seen this.

 

We HAVE to get this fixed ASAP.

 

There is obvious bad information in this memo. Bad information that will lead to false arrests.

[AmishRnot4ganja]

As discussed in MSP Legal Update No. 69, the medical purpose for using marihuana may be asserted as an affirmative defense to any prosecution involving marihuana. MCL 333.26428(b) requires dismissal of charges if a person proves the following:

 

 

If "the medical purpose for marihuana may be asserted as an affirmative defense to any prosecution involving marihuana", then why are some people being denied the opportunity to use the medical marijuana defense in court?

[bobandtorey]

MICHIGAN STATE POLICE LEGAL UPDATE

NNO. 89 September 8, 2011 Past editions can be found at www.michigan.gov/msp-legal.

This update is published by the Michigan State Police, Office of the Director, Legal Resource

and Education Unit. Questions and comments may be directed to MSPLegal@michigan.gov.

CRIMINAL LAW The Michigan Medical Marihuana Act

does not permit the sale of marihuana

In State v. McQueen, the defendants owned and operated a medical marihuana dispensary. One of the defendants was a registered patient and a registered caregiver and the other defendant was a registered caregiver. Members of the dispensary were either registered patients or registered primary caregivers. Members were able to store marihuana at the dispensary inside lockers they rented from the dispensary. The stored marihuana was available for purchase to other members of the dispensary. The dispensary charged a service fee for each sale.

In July 2010, the Isabella County Prosecuting Attorney filed a complaint to shut down the dispensary alleging the operation of the dispensary was a public nuisance because it was operated in violation of the provisions of the Michigan Medical Marihuana Act (MMMA) and the Public Health Code (PHC). The defendants argued the MMMA authorizes patient-to- patient sales of marihuana. The trial court concluded the dispensary was in compliance with the MMMA and denied the complaint. The prosecutor appealed.

The Michigan Court of Appeals stated the MMMA does not legalize the possession, use, or delivery of marihuana; rather, the MMMA sets forth very limited circumstances in which persons involved in marihuana use, and who are thereby violating the PHC, may avoid criminal liability.

The Court concluded the MMMA does not authorize marihuana dispensaries and the MMMA does not permit the sale of marihuana. The Court reasoned the “delivery” and “transfer” of marihuana allowed under the definition of “medical use” contained in the MMMA is not equivalent to

sale of marihuana. Sale consists of delivery or transfer plus the receipt of compensation which is not allowed under any provision of the MMMA.

The Court ruled that, because the defendants’ operation of the dispensary was not in accordance with the MMMA and was in violation of the PHC, the dispensary was a public nuisance for which the prosecutor could obtain an order to stop the nuisance and prohibit the defendants from continuing to operate the dispensary.

The Michigan Medical Marihuana Act requires the physician’s statement occur before the illegal conduct in order for the affirmative defense to apply and in order for the person to be immune from arrest, prosecution, or penalty

As discussed in MSP Legal Update No. 69, the medical purpose for using marihuana may be asserted as an affirmative defense to any prosecution involving marihuana. MCL 333.26428(b) requires dismissal of charges if a person proves the following:

1.A physician has stated the patient is likely to receive a medical benefit from marihuana use;

2. The person did not possess more marihuana than reasonably necessary to ensure the uninterrupted availability for treating a patient; and

3. The possession, manufacture, or delivery was done for the purpose of treating the patient.

In People v. Reed, undercover officers observed marihuana plants growing at the defendant’s residence. The defendant suffered from chronic back pain. Prior to officers observing the marihuana, the defendant had not obtained certification from a physician stating the defendant was likely to receive benefit from the medical use of marihuana. After the marihuana was observed, but before the defendant was arrested, the defendant obtained written

This update is provided for informational purposes only. Officers should contact their local prosecutor for an interpretation before applying the information contained in this update.

MSP Legal Update No. 89 Page 2 of 2

certification and he also obtained a registry identification card. Ten days after receiving the registry identification card, the defendant was arrested and charged with the manufacture of marihuana. The defendant filed a motion to dismiss the charges based on the affirmative defense section of the MMMA, MCL 333.26428(b), and MCL 333.26424(a). The trial court denied the motion.

Previously, in the case of People v. Kolanek, the Court held the physician’s statement required in order to assert the affirmative defense had to occur prior to arrest. In Kolanek, the discovery of the crime and the arrest were simultaneous. The Kolanek Court stated it was reasonable to assume the affirmative defense contained in the MMMA was intended to protect those who had an actual medical basis for marihuana use recognized by a physician prior to the marijuana use and was not intended to provide an after-the-fact exemption for otherwise illegal conduct.

Following the same rationale used in Kolanek, the Court held for the affirmative defense section of the MMMA to apply, the physician’s statement must occur before the illegal conduct. In this case, the defendant did not obtain the physician’s statement until after the illegal conduct (manufacturing marihuana) had occurred; therefore, the affirmative defense did not apply. In other words, a person must obtain a physician’s statement before violating the PHC.

The Court also held the defendant was not immune from prosecution under MCL 333.26424(a), which prohibits the arrest or prosecution of a patient who has been issued and possesses a registry identification card for the medical use of marihuana in accordance with the MMMA. The Court reasoned the defendant was not immune from arrest, prosecution, or penalty because the defendant had not been issued a registry identification card at the time he engaged in the cultivation of marihuana.

When questioning suspects regarding incidents involving marihuana where the suspect does not have a registry identification card, officers are encouraged to inquire as to whether the suspect has

seen a physician regarding the medical use of marihuana and whether the doctor has stated the suspect is likely to receive a medical benefit from marihuana use. Officers should document in their report that such questions were asked, the suspect’s answers, the name of the physician, if any, and the date the suspect sought the physician’s opinion.

SUBSCRIPTIONS

In order to receive the Update via e-mail, click here or go to www.michigan.gov/msp-legal and click on “subscribe to legal updates.”

CRIMINAL LAW AND PROCEDURE MANUAL

The 2010 edition of Michigan Criminal Law and Procedure: A Manual for Michigan Police Officers is available for purchase.

The manual is published by Kendall Hunt Publishing Co. Copies may be ordered by calling Kendall Hunt Customer Service at (800) 228-0810, or through their online catalog (search by title or ISBN: 978-0-7575- 8710-8).

This update is provided for informational purposes only. Officers should contact their local prosecutor for an interpretation before applying the information contained in this update.

 

 

posted by

Michael Komorn

18006563557

 

We will be FREE soon

[newbie313]

What is it about Marijuana that makes them so angry?

[Morhawk]

What is it about Marijuana that makes them so angry?

 

If they can't go after marijuana, they will have to spend more time on violent criminals. Marijuana is an easy paycheck for them and not as "scary" as trying to bust a gang.

[AmishRnot4ganja]

What is it about Marijuana that makes them so angry?

 

 

No one seems to know. They have yet to come up with any fact based reasons. They spout generalizations about how it will cause the downfall of society much like the alcohol prohibitionists did around the turn of the century, but they have no evidence. There is a lot of evidence showing that alcohol is more dangerous than marijuana, but they seem to want to ignore this. Go figure.

 

I think there is more truth to Morhawk's statement ("If they can't go after marijuana, they will have to spend more time on violent criminals. Marijuana is an easy paycheck for them and not as "scary" as trying to bust a gang.") than many of the haters would like to admit.

[Mememe]

What is it about Marijuana that makes them so angry?

 

Loss of profit.

[cindy48647]

Cops aren't Doctors, what gives them the right to ask me anything about my doctor and my condition, wtf?

[cindy48647]

I'll be telling them to ask my attorney, remember folks, you don't gotta tell them squat!

[WalledLakePatient]

At least its out there in the open for everyone to know, no needing to guess any more...

 

WLP

[peanutbutter]

What is it about Marijuana that makes them so angry?

 

It's all auto pilot now.

 

The government projected nasty images about cannabis, back in the 30s, to keep law enforcement working after prohibition against alcohol was ended. This and the leftovers of the Mexican American war.

 

In 1969 Timothy Leary fought and won against the marijuana tax stamp act. At that point there was no federal law against it.

 

Then Nixon decided to "get" the anti war movement. He figured that the hippies couldn't be arrested for what they were saying. Pesky first amendment stuff .. so he hatched a plan. "What about marijuana? Don't they all smoke it? We could toss them all in jail for pot!!"

 

So they put out propaganda. Lots of it. All to justify why it was made illegal.

 

It's the lies, told to us by our government many years ago, that we are up against now.

[newbie313]

so many other things for them to do... Like lock up violent criminals!!!

[petoskeystoned]

It concerns me that I never see any directions to the Prosecutor's or other law enforcement officials that an application for registration with the State is as valid as the card itself with proof of it's mailing. The PA and LEO in Emmet STILL don't understand.