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Supremes Reverse Coa On King & Kolonek


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After reading the cases, I am not sure "we won" applies personally to King or Kolonek. As I read the reversals, the court has come down on our side and allows us to assert the "affirmative defense" even if we have a card. This is truly a win for someone that needs larger amounts for the production of oils and such. For King and Kolonek personally it seems like a loss. Neither seemed to have had a doc's certification prior to being arrested. The supremes state this as a requirement for seeking protection under Sec. 8 (affirmative defense).

 

On another issue, the court did not address the "closed, locked" issue of outdoor growing. Would have been nice.

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Here are the links to PDFs of the Supreme Court decisions overturning the Court of Appeals in People v King and People v Kolanek: http://courts.michigan.gov/supremecourt/Clerk/11-12-Term-Opinions/142695.pdf

 

The court held, in part, that:

 

We granted leave in these cases to consider substantive and procedural aspects of

the affirmative defense of medical use of marijuana under § 8, MCL 333.26428, of the

Michigan Medical Marihuana Act (MMMA).1 Given the plain language of the statute,

we hold that a defendant asserting the § 8 affirmative defense is not required to establish

the requirements of § 4, MCL 333.26424, which pertains to broader immunity granted by

the act. The Court of Appeals erred by reaching the opposite conclusion in People v

King,2 and we therefore reverse the Court of Appeals’ judgment in King.

Further, to establish the affirmative defense under § 8, we hold that a defendant

must show under § 8(a)(1) that the physician’s statement was made after enactment of the

MMMA but before commission of the offense. The Court of Appeals reached this

conclusion in People v Kolanek,3 and we affirm the Court of Appeals in this regard.

However, the Court of Appeals also held that defendant could reassert the affirmative

defense at trial, despite his failure at the evidentiary hearing to establish the existence of a

timely physician’s statement under § 8(a)(1). This was error, and we reverse that portion

of the Court of Appeals’ holding.

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http://www.freep.com/article/20120531/NEWS06/120531054/Michigan-Supreme-Court-rules-medical-marijuana-law-protects-patients-from-prosecution?odyssey=tab|topnews|text|FRONTPAGE

 

 

 

 

The Michigan Supreme Court, in its first major ruling on a case arising out of the use of medical marijuana, said today that the voter-approved law provides relatively broad legal protection from prosecution, even for patients who do not register for a state medical marijuana card.

In a pair of cases out of Oakland and Shiawassee counties the court ruled unanimously that lower court interpretations of the marijuana statute had been too restrictive.

In the Oakland County case, the court said the law allows a person arrested on a marijuana-related offense to assert a medical marijuana defense, as long the use of marijuana was recommended by a doctor after the law was enacted in 2008 and before the arrest. Unfortunately for the defendant in the case, Alexander Kolanek, the court said he could not avail himself of the so-called affirmative defense because his doctor’s recommendation was post-arrest.

In the Shiawassee case, the Supreme Court said defendant Larry King was entitled to an evidentiary hearing on the question of whether his medical marijuana was kept in a secure facility as defined by the law.

Detroit-area medical marijuana advocate Tim Beck, who had not yet reviewed the decision this afternoon, said it sounded like the Supreme Court had overturned some of the more onerous and mis-guided interpretations of the law by the lower courts.

The state Court of Appeals, Beck said, had taken “way too narrow a view…not something that could be construed as the plain meaning of the law.”

Contact Dawson Bell: 517-372-8661 or dbell@freepress.com

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We granted leave in these cases to consider substantive and procedural aspects of

the affirmative defense of medical use of marijuana under § 8, MCL 333.26428, of the

Michigan Medical Marihuana Act (MMMA).1 Given the plain language of the statute,

we hold that a defendant asserting the § 8 affirmative defense is not required to establish

the requirements of § 4, MCL 333.26424

 

Love it thank you

 

Now can the Senate just follow the law and leave us alone, Given the plain language of the statute, NOTHING TO FIX MICHIGAN SENATORS

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After reading the cases, I am not sure "we won" applies personally to King or Kolonek. As I read the reversals, the court has come down on our side and allows us to assert the "affirmative defense" even if we have a card. This is truly a win for someone that needs larger amounts for the production of oils and such. For King and Kolonek personally it seems like a loss. Neither seemed to have had a doc's certification prior to being arrested. The supremes state this as a requirement for seeking protection under Sec. 8 (affirmative defense).

 

On another issue, the court did not address the "closed, locked" issue of outdoor growing. Would have been nice.

 

No .. King had his card. So not in both cases.

 

In the case of King, the court noticed that "enclosed" is not a requirement for section 8

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Read below for a very important part of the court's opinion. I have discussed this ad nauseum with associates and I am happy to see that the court has adopted the same interpretation that I and many others have in regard to the interplay of sections 4 and 8.

 

 

 

 

We also reject the argument that § 8 must incorporate § 4 because otherwise

unregistered patients could possess more than 2.5 ounces of usable marijuana and keep

more than 12 marijuana plants outside an enclosed locked facility while registered users

cannot do so in an enclosed locked facility. The prosecution asserts that this result

affords unregistered patients more protection under the MMMA than registered patients.

This assertion is false and premised on a basic misunderstanding of how the differing

protections of § 4 and § 8 operate. The stricter requirements of § 4 are intended to

encourage patients to register with the state and comply with the act in order to avoid

arrest and the initiation of charges and obtain protection for other rights and privileges. If

registered patients choose not to abide by the stricter requirements of § 4, they will not be

able to claim this broad immunity, but will be forced to assert the affirmative defense

under § 8, just like unregistered patients.

 

44 In that instance, registered patients will be

entitled to the same lower level of protection provided to unregistered patients under § 8.

This result is not absurd, but is the consequence of the incentives created by the wider

protections of § 4.

Accordingly, we hold that to establish the elements of the affirmative defense in

§ 8, a defendant need not establish the elements of § 4. Any defendant, regardless of

registration status, who possesses more than 2.5 ounces of usable marijuana or 12 plants

not kept in an enclosed, locked facility may satisfy the affirmative defense under § 8. As

long as the defendant can establish the elements of the § 8 defense and none of the

circumstances in § 7(b) exists, that defendant is entitled to the dismissal of criminal

charges.

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So no matter how badly you "enclosed" the grow area, that is NOT a required element of section 8.

 

So for getting it tossed out of court, it doesn't matter if it's enclosed or not.

 

The "enclosure" prevents the police from taking the plants. The "enclosure" has NOTHING to do with a court case.

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They definitely blasted a hole in alot of "O'Connells" arguments in his concurring opinion via Redden.

 

This may give hesitiation to other Justices on following his other opinions in that non binding concurring opinion.

 

It's a start.

 

Let us not forget Kolanek....

 

May a slap on the wrist follow your decision.

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So if I am registered with that state I can only have 2.5 ounces, but if I am not and only have a doctors recommendation I can have more?

 

Not quite ..

 

If you have a card:

You can't be ARRESTED if you have less than 2.5 and 12 and etc..

Doesn't matter if you have a card or not:

If it's for medical purpose, case dismissed.

 

Having the Card is SUPPOSED to protect you from being abused by the cops and courts.

 

Section 8 gets your case dismissed if they ignore section 4.

 

Section 8 is the "catch everything" section of the law.

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