Supremes Reverse Coa On King & Kolonek

[Northern Lab]

Excellent!

[trix]

I should print out the SC Rulings, and keep it in a mannila envelope in my car, and the next time I get stopped by a officer that says "I don't know what the law says directly, thats for you to take up in court". I would enjoy sitting up and nicely handing that law as stated by the courts today for him to read over while my rights are violated!

 

Awesome rulings to hear, this really should enlighten the community knowing we won huge today especialy some of our long standing members of this community. Now we still gotta focus on how to bring the legslators writing these bills to have a civil meeting and get them stopped and we will be in such a good place.

 

Were so close and so far away hopefully todays emotions will have a impact on how we can come together as a group all fighting for the same thing and really continue to place pressure on the opposed changes, and continue to win in court until they recognize its just a herb and to leave us alone... congrats again to everyone involved

 

Trix

[Frank R]

Hot diggity dog!

 

Awesome to see the MI SC concerned about the intentions of the VOTERS and the simple language of the Act, not the desires of the current legislators and AG.

[GregS]

Great stuff. Larry walks and rubs Schithead and O'Connel's nose in it. The SC b1tch slapped them both, and deservedly so. Kolanek gets half a loaf, bud did well in taking the issues to the n'th degree. In their unanimous decision and appendix, the Justices have demonstrated a sound understanding of our law. Thanks go out to them for maintaining intellectual integrity, rather than buying into the foolish COA and rabid AG diatribes.

 

We who have held that the law is quite clear in all of its tenets can take some pleasure in that we have been justified.

 

This does require that we ramp up our efforts to stop any and all legislation in play now.

Edited June 1, 2012 by GregS

[phaquetoo]

A great day for mm pt's, I hope this helps bob and torreys case!

 

Peace

Jim

[cristinew]

Nothing to be fixed in the legislature. the court read our law and the PALIN LANGUAGE OF OUR LAW IT IS EASY TO SEE,

 

Given the plain language of the statute

 

Permit registered and unregistered patients and primary caregivers to

assert medical reasons for using marijuana as a defense to any prosecution

involving marijuana.

 

28 The MMMA defines “medical use” to mean “the acquisition, possession, cultivation,

manufacture, use, internal possession, delivery, transfer, or transportation of marihuana

or paraphernalia relating to the administration of marihuana to treat or alleviate a

registered qualifying patient’s debilitating medical condition or symptoms associated

with the debilitating medical condition.” MCL 333.26423(e).

 

Although the MMMA does not define “bona fide physician-patient relationship,” a

joint statement by the Michigan Board of Medicine and the Michigan Board of

Osteopathic Medicine and Surgery advises that this term envisions “a pre-existing and

ongoing relationship with the patient as a treating physician.” Statement of the Board of

Medicine and Board of Osteopathic Medicine and Surgery Regarding Certification for

Medical Use of Marihuana by Michigan Physicians

<https://www.michigan.gov/documents/lara/lara_Medical_Marihuana_Final

_Written_Certification_Statement_8-15-11_376283_7.pdf> (accessed May 25, 2012).

Edited June 1, 2012 by cristinew

[Michael Komorn]

Kingpin. Thank you. Thank you for your courage to stand strong, to endure the battle of attrition, and to make it to the end, this point, this moment, this historic moment. This case vindicates you, and many who have suffered from the political interpretations of this act instead of the voters intent. I think it is fair to say that this case puts some faith back into the Michigan legal system, and creates a new hope that the will of the people will be implemented as it was intended. Thanks again.

[Beans]

Could be time to make some legal money

 

Quality dog kennel prices are about to soar

[AlternativeSolutionsPlus]

I know this article has been placed on other threads but here is a good write up from the news wires we subscribe to, they tend to be a little more detailed than the newspaper print and online versions:

 

 

 

Medical Marijuana Users' Affirmative Defense Affirmed

 

 

The Michigan Supreme Court unanimously ruled today to reaffirm the right to affirmative defense -- with conditions -- for medical marijuana patients.

 

To establish an affirmative defense, a defendant must show only that a physician stated after the Michigan Medical Marihuana Act (MMMA) was enacted and before a crime was committed that the defendant was likely to benefit from the use of marijuana, the justices wrote.

 

A defendant who fails to establish a case for affirmative defense in a motion to dismiss may not reassert the affirmative defense at trial, however.

 

The ruling stems from two separate cases analyzed in the same opinion.

 

Alexander KOLANEK was charged with marijuana possession on April 6, 2009. Kolanek, who claimed that he had the marijuana for medical purposes as allowed by the MMMA, did not have a registry identification card at the time of his arrest. He submitted an application for a registry card on April 12, 2009, along with a qualifying patient certificate from his doctor. His Marijuana Registry Patient ID Card was issued on May 1, 2009 -- nearly a month after his arrest.

 

Kolanek moved to dismiss the charges against him, asserting an affirmative defense under the MMMA, which provides an affirmative defense for patients who have not been issued a registry identification card yet meet certain criteria.

 

The district judge denied Kolanek's motion to dismiss the pending charges. The court said that because he had not obtained a physician statement authorizing the medical use of marijuana until after his arrest, he was not entitled to the statutory presumption that the marijuana was for medical use.

 

Kolanek appealed to the circuit court, which reversed, concluding that the district court's interpretation of the affirmative defense language was erroneous. The prosecutor appealed, and the Court of Appeals (COA) reversed the circuit court opinion, remanding the case to the district court for reinstatement of the charges against Kolanek. The COA held that, to present a valid defense to the charges, Kolanek had to establish that he discussed the medical use of marijuana with a physician after the enactment of the MMMA but before his arrest. The COA concluded, however, that nothing in the statute expressly precluded Kolanek from arguing affirmative defense to the jury. Both Kolanek and the prosecutor appealed to the Supreme Court.

 

The unanimous opinion, written by Justice Mary Beth KELLY, ruled Kolanek's case was affirmed in part and reversed in part. While the justices affirmed the COA decision that Kolanek did not have to meet all the requirements about the broader immunity of the MMMA, they reversed the COA decision that would have allowed Kolanek to reassert the affirmative defense at trial despite failing to establish a timely physician statement during his motion to dismiss.

 

The second case started with Larry KING being charged with two counts of manufacturing marijuana after police found plants growing in a locked chain-link dog kennel in his backyard and in an unlocked closet in his home. The court denied King's motion to dismiss the case. The case worked its way to the COA, which reversed and remanded holding that because the places King kept his plants did not qualify as enclosed, locked facilities, he could not properly establish the affirmative defense.

 

The King case was remanded to the circuit court for an evidentiary hearing on the motion to dismiss so he could argue the fact of whether the marijuana was in an enclosed, locked facility to meet the requirements of affirmative defense.

 

The American Civil Liberties Union of Michigan (ACLU) applauded the high court's decision.

 

“Across the state, patients have not been able to assert their rights under the Medical Marihuana Act because the Court of Appeals in this case misinterpreted the law," said Dean KOROBKIN, ACLU staff attorney. "This decision makes it very clear: A patient who uses marijuana to treat their medical conditions with the approval by their doctor should not be punished for mere technical errors regarding the number of plants or how they were secured.”

 

The cases were The People of the State of Michigan vs Larry Steven King, case number 142850, andThe People of the State of Michigan vs Alexander Edward Kolanek, case numbers 142695 and 142712.

[AlternativeSolutionsPlus]

Please allow us to add to the good news by posting the story we found on our news wire service this morning. It may be redundant but in our opinion worth repeating and reading again.

 

 

Medical Marijuana Users' Affirmative Defense Affirmed

 

 

The Michigan Supreme Court unanimously ruled today to reaffirm the right to affirmative defense -- with conditions -- for medical marijuana patients.

 

To establish an affirmative defense, a defendant must show only that a physician stated after the Michigan Medical Marihuana Act (MMMA) was enacted and before a crime was committed that the defendant was likely to benefit from the use of marijuana, the justices wrote.

 

A defendant who fails to establish a case for affirmative defense in a motion to dismiss may not reassert the affirmative defense at trial, however.

 

The ruling stems from two separate cases analyzed in the same opinion.

 

Alexander KOLANEK was charged with marijuana possession on April 6, 2009. Kolanek, who claimed that he had the marijuana for medical purposes as allowed by the MMMA, did not have a registry identification card at the time of his arrest. He submitted an application for a registry card on April 12, 2009, along with a qualifying patient certificate from his doctor. His Marijuana Registry Patient ID Card was issued on May 1, 2009 -- nearly a month after his arrest.

 

Kolanek moved to dismiss the charges against him, asserting an affirmative defense under the MMMA, which provides an affirmative defense for patients who have not been issued a registry identification card yet meet certain criteria.

 

The district judge denied Kolanek's motion to dismiss the pending charges. The court said that because he had not obtained a physician statement authorizing the medical use of marijuana until after his arrest, he was not entitled to the statutory presumption that the marijuana was for medical use.

 

Kolanek appealed to the circuit court, which reversed, concluding that the district court's interpretation of the affirmative defense language was erroneous. The prosecutor appealed, and the Court of Appeals (COA) reversed the circuit court opinion, remanding the case to the district court for reinstatement of the charges against Kolanek. The COA held that, to present a valid defense to the charges, Kolanek had to establish that he discussed the medical use of marijuana with a physician after the enactment of the MMMA but before his arrest. The COA concluded, however, that nothing in the statute expressly precluded Kolanek from arguing affirmative defense to the jury. Both Kolanek and the prosecutor appealed to the Supreme Court.

 

The unanimous opinion, written by Justice Mary Beth KELLY, ruled Kolanek's case was affirmed in part and reversed in part. While the justices affirmed the COA decision that Kolanek did not have to meet all the requirements about the broader immunity of the MMMA, they reversed the COA decision that would have allowed Kolanek to reassert the affirmative defense at trial despite failing to establish a timely physician statement during his motion to dismiss.

 

The second case started with Larry KING being charged with two counts of manufacturing marijuana after police found plants growing in a locked chain-link dog kennel in his backyard and in an unlocked closet in his home. The court denied King's motion to dismiss the case. The case worked its way to the COA, which reversed and remanded holding that because the places King kept his plants did not qualify as enclosed, locked facilities, he could not properly establish the affirmative defense.

 

The King case was remanded to the circuit court for an evidentiary hearing on the motion to dismiss so he could argue the fact of whether the marijuana was in an enclosed, locked facility to meet the requirements of affirmative defense.

 

The American Civil Liberties Union of Michigan (ACLU) applauded the high court's decision.

 

“Across the state, patients have not been able to assert their rights under the Medical Marihuana Act because the Court of Appeals in this case misinterpreted the law," said Dean KOROBKIN, ACLU staff attorney. "This decision makes it very clear: A patient who uses marijuana to treat their medical conditions with the approval by their doctor should not be punished for mere technical errors regarding the number of plants or how they were secured.”

 

The cases were The People of the State of Michigan vs Larry Steven King, case number 142850, andThe People of the State of Michigan vs Alexander Edward Kolanek, case numbers 142695 and 142712.

Edited June 1, 2012 by AlternativeSolutionsPlus

[WDJ]

It is about time....my hat is off to the Supreme Court for applying the law as it was written. Further the court "clarified" the function of the defenses for the lessor Courts. From my perspective, and as an attorney, former elected County PA,former member of the Sault tribe Appellate Court. For the most part, trial courts applied MMMA within the statute far better (I know that there were/are exceptions) than lower appellate courts. I hope that this opinion makes clear judicial activism is inappropriate. Many times I have heard courts state that we all must follow the law even if we do not like it. Now that the shoe is on the other foot, various appelate Judges exercised their dislike of the law and acted against it....in my humble opinion. On the other hand, the law is probably one of Michigan's worst worded laws since we gained statehood. So perhaps some slack should be given. This opinion should reign that in.

[Dr. Bob]

Good victory for patients. We'll see many more affirmative defenses now, I am curious as to how the courts will treat them.

 

Other posters are correct. Looks like the date of the doctor rec will be the key factor. As for the need to participate in the registry once the rec is obtained, it is an interesting concept, but I would have a good reason you opted out of registering.

 

As for simpson oil and higher amounts of cannabis, it may well allow you to have an opportunity to justify it using the medical defense in court, but you will still be in court. I can see ways of doing that, but the first cases should be VERY clear- a caregiver making simpson oil for a terminal cancer patient for example, something very sympathetic to the jury.

 

Dr. Bob

[Shredder]

Dr Bob, i think the real near term effect will be prosecutors being very reluctant to arrest first and ask questions later. Having the right to present a defense to a jury is a very big thing that was taken from us. A wise prosecutor would instruct the police to ask for a card and if one is shown, they should go back to the donut shop. I think this will also have direct effect on the ways warrants have been issued too. And many more cases will go to court over being plead out as has happened lately. That will effect prosecutors further as a cost benefit calculation will come into play. Drug task forces will have to go after real law breakers not grandpas and grandmas. Seizures will dramatically decline. Hopefully this may even loosen up some tight in the shorts doctors who would deny their own patients therapies that work.......IOW common sense has made a come back in MI......shredder

Edited June 1, 2012 by Shredder

[GregS]

Nothing to be fixed in the legislature. the court read our law and the PALIN LANGUAGE OF OUR LAW IT IS EASY TO SEE,

 

Given the plain language of the statute

 

Permit registered and unregistered patients and primary caregivers to

assert medical reasons for using marijuana as a defense to any prosecution

involving marijuana.

 

28 The MMMA defines “medical use” to mean “the acquisition, possession, cultivation,

manufacture, use, internal possession, delivery, transfer, or transportation of marihuana

or paraphernalia relating to the administration of marihuana to treat or alleviate a

registered qualifying patient’s debilitating medical condition or symptoms associated

with the debilitating medical condition.” MCL 333.26423(e).

 

Although the MMMA does not define “bona fide physician-patient relationship,” a

joint statement by the Michigan Board of Medicine and the Michigan Board of

Osteopathic Medicine and Surgery advises that this term envisions “a pre-existing and

ongoing relationship with the patient as a treating physician.” Statement of the Board of

Medicine and Board of Osteopathic Medicine and Surgery Regarding Certification for

Medical Use of Marihuana by Michigan Physicians

<https://www.michigan.gov/documents/lara/lara_Medical_Marihuana_Final

_Written_Certification_Statement_8-15-11_376283_7.pdf> (accessed May 25, 2012).

 

Don't fool yourself. The people in the legislature will continue working to amend the law. make further changes, and things could be quite different. They have clearly shown that they are incapable or unwilling to read the plain language in the law and accept it for what it is. Yes there is much here that changes things in our behalf, but we are far from out of the woods. Their aim is to change our clear language to something that the money people and the police can like. Maybe they will drop it, but don't count on it. These are prima donnas that do not realize when they are being stupid.

Edited June 1, 2012 by GregS

[+Annnie]

Nothing about it having to be current? For example, would a patients recommendation from 2009 allow use of section 4 defense for a 2012 arrest?

 

No.. but they could use the Sec 8 defense.. which would not be cheap or fun..

[+Annnie]

Dr Bob, i think the real near term effect will be prosecutors being very reluctant to arrest first and ask questions later. Having the right to present a defense to a jury is a very big thing that was taken from us. A wise prosecutor would instruct the police to ask for a card and if one is shown, they should go back to the donut shop. I think this will also have direct effect on the ways warrants have been issued too. And many more cases will go to court over being plead out as has happened lately. That will effect prosecutors further as a cost benefit calculation will come into play. Drug task forces will have to go after real law breakers not grandpas and grandmas. Seizures will dramatically decline. Hopefully this may even loosen up some tight in the shorts doctors who would deny their own patients therapies that work.......IOW common sense has made a come back in MI......shredder

 

These are my thoughts as well shredder.. this is a huge win..

[GregS]

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?

 

YUP! Teeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

 

Aand plant it in your front yard. HAHAHAHAHAHAHAHAHHHHHHHHHHHHAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA(coffee vectors from nose)

 

My coffee and hash tase especially good this morning.

Edited June 1, 2012 by GregS

[Spartyon]

I own a small package delivery company consisting of one 26' straight truck. The law that may go into effect where they run my plate and its comes up medical mary j user on a registered commerical vehicle. Zero tonerance has me scraced to death. This lastest sc ruling has me thinking my best way is to aviod this would be one put the truck in someone elses name or dont register with the state just use my doc rec. What about being a care giver off just doc recomendations? Any thoughts on that?

[Dr. Bob]

Absolutely Not. One certification does not give you a 'lifelong get out of jail free' card. This is a really bad idea.

 

The reason being is that IF you go through the certification process and register, you must do so on an annual basis. If the new bills pass, it may be every two years.

 

To rely on the the certification alone, you would really need to meet the same construction. IE you would have to be re-evaluated just as if you were getting a new license.

 

This is not legalization, if you rely on the Section 8 you will must accept the possibility that you will be jailed and have to go to court. Your case by be dismissed, and should be dismissed, but you never know.

 

This is a great win, but we can't just look at it superficially and say this means we get seen once and we are good forever, and the power of that cert is like a cross and holy water for the leo vampire.

 

The last thing we need is a bunch of people with overages that they 'medically need' showing up in court with certifications from 2009 and trying to push this issue. Even if they somehow win, there are those that will point it out as an abuse of the system, which is why we need this new bill that restricts the act. Or have you forgotten that is how we got the last set of bills?

 

Dr. Bob

Edited June 1, 2012 by Dr. Bob

[cristinew]

YUP! Teeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

 

yes and you will be arrested taking to court pay an attorney and if you do not prove your AD you will be convicted

[cristinew]

To Prove an AD in court may take 3 years 50 thousand dollars in attorney fees .. depends how far your county wants to prosecute you

[CaveatLector]

I own a small package delivery company consisting of one 26' straight truck. The law that may go into effect where they run my plate and its comes up medical mary j user on a registered commerical vehicle. Zero tonerance has me scraced to death. This lastest sc ruling has me thinking my best way is to aviod this would be one put the truck in someone elses name or dont register with the state just use my doc rec. What about being a care giver off just doc recomendations? Any thoughts on that?

Start an LLC for your delivery service. Give your truck to the LLC. Register the truck through the LLC.

[GregS]

YUP! Teeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Absolutely Not. One certification does not give you a 'lifelong get out of jail free' card. This is a really bad idea.

 

The reason being is that IF you go through the certification process and register, you must do so on an annual basis. If the new bills pass, it may be every two years.

 

To rely on the the certification alone, you would really need to meet the same construction. IE you would have to be re-evaluated just as if you were getting a new license.

 

Dr. Bob

 

Not to gore your ox Dbob, but these decisions say that you could not be more wrong. Sections 4 and 8 have been affirmed as being separate and distinct. Section 4 requirements, to include annual certification are not required of patients who do not register, but only a pre-existiing recommendation that was rendered after the law was effected. Only under the registry is annual certification required. That may change to two years per legislative bills. And it makes going commando without a card much more appealing. :lol: :lol:

Edited June 1, 2012 by GregS

[+Annnie]

YUP! Teeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

 

Aand plant it in your front yard. HAHAHAHAHAHAHAHAHHHHHHHHHHHHAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA(coffee vectors from nose)

 

My coffee and hash tase especially good this morning.

 

Teehee.. mine too..

 

The thing to remember here is there are many many pts who did qualify for a sec 4 defense lost all their immunity a long time ago.. the card was not honored and the cops let the courts sort it out .. In essence taking their immunity whether they deserved it or not.. So then these ppl went in and were told they did not get a defense.. So now they do get a defense and this is going to stop ALOT of arrests.. WOOT..

[Dr. Bob]

Not to gore your ox Dbob, but these decisions say that you could not be more wrong. Sections 4 and 8 have been affirmed as being separate and distinct. Section 4 requirements, to include annual certification are not required of patients who do not register, but only a pre-existiing recommendation that was rendered after the law was effected. Only under the registry is annual certification required. That may change to two years per legislative bills. And it makes going commando without a card much more appealing. :lol: :lol:

 

Bad advice. Are you willing to personally fund the legal team to defend a patient that follows it? Care to have a discussion about construction and cite a few examples of court cases?

 

Dr. Bob

 

PS my ox is still plowing the fields. Hopefully CL will address this properly before someone gets hurt.

Edited June 1, 2012 by Dr. Bob