Supremes Reverse Coa On King & Kolonek

[+Annnie]

I think this is a great victory for everyone, But I think the future still lies in the hands of LEO, we really need to educate them on the law. Now more than ever, also I think this may be that time we have been looking for to meet with our reps, I liked the "picnic" idea. What better time to try and accomplish that task, then now right after this huge decision has been dealt towards legislation.

 

Otherwise Pt's will still be arrested, and will still face that dreaded day in court while they wait to hear what a Judge has to say, all the while having to exhaust their finacial resources to pay for a lawyer. Court is expensive and very hard on ones mental state.

 

(IMO)This is a good time for that legal fund setup by donations from within the community, we can't afford to let these cases get held to a plea any longer, now that we can use are cards as a defense in court. A Plea bargin should not be acceptable anymore, that takes money in order to acomplish. been there done that...Its a hard task to acomplish for those on a fixed income.

 

I wouldn't advise anyone to flaunt their grow, like stated "grow it in your front yard" that isn't a smart route unless you want to tinkle off LEO more than they already are. Keep your grow and status to yourself and keep it under the limit and don't push your luck to much otherwise it may backfire and bite everyone in the arse.

 

Again another congrats to King, Bob, and everyone else that has been stuck in that "gray area" for so long now!

 

Trix

 

Trix

Our compassion Club ( Clare County Compassion Club.ning) invited our local Sheriff and a local Attorney to one of our meetings..For Questions and answers..As i see it..This is a way yo EDUCATE our LAw enforcement also.. From talking to OUR local Sheriff, he needs some education on our law..He is willing to ocme and listen..We will let everyone know what meeting they will be at..This is/will be a good chance to help the Sheriff and police see our side if nothing else..HOPEFULLY we can educate them on our law..

[bobandtorey]

LOL me

 

The way this is set up by the SC now, this is what I see as legal:

 

Patient finds out they have stage four cancer. Their doctor writes their letter and mentions Simpson oil to them.

That day they start the Simpson program.

 

Do you think the patient should have to wait longer to start?

 

OK I'm sure you agree that a patient that has a doctors letter should be able to start that day.

 

Who may legally supply such a patient? Section eight talks about the patients caregiver. Even those that aren't registered.

 

Ignore the caregiver for just a split second. The unregistered patient. That patient can not have a registered caregiver.

Section eight does not require the registry to function.

What is a caregiver in section eight? Who is the caregiver for the unregistered patient? Section eight protects them also.

 

Medically speaking, how long should persons wait to hand such a patient RSO to try to keep them alive? Would you suggest the patient wait twenty days?

 

The unregistered patient that part has already be ruled on by the C.O.A in are case but it didn't help us

WHY?

[peanutbutter]

What is an 'unregistered caregiver'? There is no such thing. Where are these ideas coming from, certainly not the act or the administrative rules.

 

A caregiver must have patients that are associated through the registry to be a caregiver. They must be named by a patient and approved by the state to be a caregiver. To do that, the state must have the application, ie register both the patient and the caregiver. There is simply no way to legally be a 'free range' caregiver, wandering the land in search of patients needing your services.

 

In case you didn't notice, there is NO WAY to become a caregiver alone, as you can simply become a patient. You cannot get a license as a caregiver and then go out and find patients. You can get a license as a patient.

 

Dr. Bob

 

BTW I asked a lawyer about out of state patients.

 

I found out that LARA sends ID cards to out of state addresses.

 

Medicine is your field of expertize. As you deviate from that field, your error rate goes up.

[peanutbutter]

The unregistered patient that part has already be ruled on by the C.O.A in are case but it didn't help us

WHY?

 

Section eight protects unregistered patients ... and their caregivers.

[peanutbutter]

Great. I finally read most of the posts here.

 

I had thought it was obvious it was settled. I guess not.

 

There is no way the voters of Michigan intended a terminal cancer patient to wait one moment longer than needed to get their medicine.

 

Acquire, transfer .. these are things that the unregistered patient is allowed to do.

 

So now folks are saying "it is legal for the patient to purchase but a crime to sell to that patient."

 

THAT'S THE STATE LINE IN OAKLAND COUNTY.

[trix]

Our compassion Club ( Clare County Compassion Club.ning) invited our local Sheriff and a local Attorney to one of our meetings..For Questions and answers..As i see it..This is a way yo EDUCATE our LAw enforcement also.. From talking to OUR local Sheriff, he needs some education on our law..He is willing to ocme and listen..We will let everyone know what meeting they will be at..This is/will be a good chance to help the Sheriff and police see our side if nothing else..HOPEFULLY we can educate them on our law..

 

Thats great, LEO needs to be our first line of defense when it comes down to it, the more education we can provide the better off the community will be (imo) If law enforcement understand the SC rulings, maybe just maybe they will leave us alone, and go after the illegal grows and stay away from the small time grows that are used to help sick patients and are not out for profit but compassion.

 

Maybe we can appoint a spokesperson to go to meetings held by law enforcement on the topic of what Medical Marijuana is and how the law benefits as well and hinders the community as a whole. With respect comes respect, Just like those D.A.R.E classes, but for law enforcement. not sure that will go over well cause of the ego that cops have, but someone has to show them what is the right way to handle things and how NOT to handle a patient that has just misunderstood a part of the law. without the fear of arrest.

 

Good luck at your meeting, please let us know how they handle themselves and what their talking points were/are. Should help us understand how they see they interperate the law through the eyes of a officer of the state.

 

Trix

[Dr. Bob]

I think that, if people are going to depend on a letter only, they should carry the letter AND a copy of this ruling.

 

It's a crap shoot. It might work, it might not.

 

 

 

You see, this is the correct way to qualify this type of discussion, rather than present it as gospel. I don't agree with the position, but you make it clear it carries with it some risk, so I have no issue with you presenting it as an opinion. No argument from me on that.

 

Dr. Bob

[Dr. Bob]

We are big people who can make our decisions depending on the facts as we see them. I do not appreciate your condescending tone, and this is not the first time. I will continue to encourage the most liberal rendering of the law that I can manage. There is nothing in what I said that would indicate that people should not be careful.

 

There is no reason for a mod to stop this conversation.

 

Not a mod, hoping a LAWYER might clear it up.

[+Annnie]

Thats great, LEO needs to be our first line of defense when it comes down to it, the more education we can provide the better off the community will be (imo) If law enforcement understand the SC rulings, maybe just maybe they will leave us alone, and go after the illegal grows and stay away from the small time grows that are used to help sick patients and are not out for profit but compassion.

 

Maybe we can appoint a spokesperson to go to meetings held by law enforcement on the topic of what Medical Marijuana is and how the law benefits as well and hinders the community as a whole. With respect comes respect, Just like those D.A.R.E classes, but for law enforcement. not sure that will go over well cause of the ego that cops have, but someone has to show them what is the right way to handle things and how NOT to handle a patient that has just misunderstood a part of the law. without the fear of arrest.

 

Good luck at your meeting, please let us know how they handle themselves and what their talking points were/are. Should help us understand how they see they interperate the law through the eyes of a officer of the state.

 

Trix

 

We have already met with sherrif wilson a few times.. He voted for our law and has not been arresting pts in compliance Or their Caregivers.. :-) Cant wait to have him at a meeting.. Hes cool.. Vote for him!!

[+Annnie]

Oh Great .. another topic we could argue over if we wanted to.

 

I think that, if people are going to depend on a letter only, they should carry the letter AND a copy of this ruling.

 

It's a crap shoot. It might work, it might not.

 

I know a doctors letter and copy of Greg Schmidts breakdown of the law kept my friend out of jail. In Livingston county in December of '08.

Many times leo is hungry for solid information.

 

It might be a while before their bosses tell them what is up or down.

 

I'd suggest having the right ammo to fill in the void whenever possible.

 

Clearly the letter and copy of the judgement wouldnt work for section 4 imunity but rather a section 8 defense.. Unless the officer felt like giving the imunity..

[peanutbutter]

Thats great, LEO needs to be our first line of defense when it comes down to it, the more education we can provide the better off the community will be (imo) If law enforcement understand the SC rulings, maybe just maybe they will leave us alone, and go after the illegal grows and stay away from the small time grows that are used to help sick patients and are not out for profit but compassion.

 

Maybe we can appoint a spokesperson to go to meetings held by law enforcement on the topic of what Medical Marijuana is and how the law benefits as well and hinders the community as a whole. With respect comes respect, Just like those D.A.R.E classes, but for law enforcement. not sure that will go over well cause of the ego that cops have, but someone has to show them what is the right way to handle things and how NOT to handle a patient that has just misunderstood a part of the law. without the fear of arrest.

 

Good luck at your meeting, please let us know how they handle themselves and what their talking points were/are. Should help us understand how they see they interperate the law through the eyes of a officer of the state.

 

Trix

 

I would like to see an attempt to construct a middle of the road view of this ruling. Neither liberal or conservative.

 

Put together a point by point breakdown and present to officers across the state.

 

They always seem to want valid information. It is a void we can fill first.

[peanutbutter]

Clearly the letter and copy of the judgement wouldnt work for section 4 imunity but rather a section 8 defense.. Unless the officer felt like giving the imunity..

 

And THAT is the basis for the crap shoot.

 

The officer can make life hell for people. And in the end have the case tossed.

The people still have their lives turned upside down.

 

The officer can also realize it will become a bad case and that this is a person the law was intended to protect.

 

Much depends on the officer at that point .. thus the crap shoot.

 

You might be able to tilt the odds in your favor by providing high quality information about this law.

Edited June 1, 2012 by peanutbutter

[peanutbutter]

The unregistered patient that part has already be ruled on by the C.O.A in are case but it didn't help us

WHY?

 

I believe that the Supreme Court has just ruled that court to be overly restrictive.

 

So why? They are overly restrictive.

[peanutbutter]

A middle of the road interpretation of this ruling does not protect most of the scenarios you discuss. Do we really want to express that as the rules to law enforcement or let juries come down where they come down and let the social change work itself out?

 

Great .. where are the existing breakdowns?

[peanutbutter]

A middle of the road interpretation of this ruling does not protect most of the scenarios you discuss. Do we really want to express that as the rules to law enforcement or let juries come down where they come down and let the social change work itself out?

 

How about this .. are there existing cases where this ruling would benefit that case?

I'm thinking about Rich Neil.

 

But if there are several cases I think we should get a list together.

 

This ruling applies to Barb Agro

[Dr. Bob]

This is a great victory. But what is the victory?

1. If you have a card, and are following the law, you cannot be arrested.
   
2. If you have a card, and are suspected of violating the law, you can be arrested, and this decision confirms your ability to use the Section 8 defense (again, paraphrased)
   
3. If you don't have a card (by this I mean the 21 days hasn't elapsed but have been seen by the doc), you can use the Section 8 defense to justify your violation.
   
4. If you haven't seen the doc prior to the raid, you can't use the defense (the before the Act became effective doesn't really apply to folks having new issues in 2012).
   

Point one is self explainatory.

Point two comes into play when you have small errors, like an unlocked front door, or have 14 plants because you are a cancer patient using simpson oil and NEED that many to keep your supply. You are violating the Act, you can claim patient status, and try and get the jury to agree you need 14 plants. But you still go to court. The jury decides the validity of your story, but they get to hear it.

Point three is same pretty much as point two, Point four is self explainatory.

 

Problems and misconceptions.

 

Just having a card does not mean you can do what you want. You can't violate the basic provisions of the act and expect the police to ignore the violation. You can't grow in your front yard, you can't have 2 pounds, nothing has changed with that.. You can just defend yourself a little better, and it is up to the jury to buy that defense.

 

Getting the certification but refusing to participate in the registry means you will have to defend yourself if arrested, even if you were fully compliant with the Act (see point three). It is absurd to think that by refusing to participate in the registry you somehow have more rights than someone who does. If a registered patient has to re-register annually, why on Earth would anyone assume someone who doesn't register would have an unlimited certification? Perhaps an actual lawyer might be able to answer as to how the courts generally deal with this type of situation. My non-lawyer opinion is that they would view it as the same as a registration- annual. The reason for this is the caregiver change form. There is technically NO waiting period on the change form, no 21 days. It is not addressed in the Act or the Rules. Speaking with attorneys they mentioned a concept called construction, similar activities within an act are assumed to be enforced in a similar way, and most likely they would require a 21 day waiting period on the change form if the issue went to court. Same with certified patients that elect not to participate in the registry, and that is the way a lawyer I know handles his unregistered card.

 

The information is presented as a non-legal opinion. If it makes sense to you, use it when you decide what you do. I know what I would do if I wanted to be safe.

 

Dr. Bob

Edited June 1, 2012 by Dr. Bob

[Dr. Bob]

Ok, this issue of the 2009 cert and such has been answered by the lawyer, so time to put it to rest. No, it isn't going to fly. Your condition in 2009 is not your CURRENT condition, and the renewal interval defines what is 'current' enough. Excellent point. A similar example would be seizures. If you had childhood seizures that occured during a fever at age 4, and NEVER had another for 40 years, you do not qualify for a card because of seizures. Granted there are many chronic conditions such as the prostate cancer listed. BUT is the cancer was addressed 10 years ago, no relapse and was completely asymptomatic, would you really still qualify? Is there any intent in the Act that it be an active condition?

 

http://michiganmedicalmarijuana.org/topic/39974-hitchhikers-guide-to-relying-on-the-aff-defense-in-section-8/page__st__20 Link to what a REAL LAWYER says about this issue.

 

Dr. Bob

[FLOWERING ANNUALS]

What is an 'unregistered caregiver'? There is no such thing. Where are these ideas coming from, certainly not the act or the administrative rules.

 

A caregiver must have patients that are associated through the registry to be a caregiver. They must be named by a patient and approved by the state to be a caregiver. To do that, the state must have the application, ie register both the patient and the caregiver. There is simply no way to legally be a 'free range' caregiver, wandering the land in search of patients needing your services.

 

In case you didn't notice, there is NO WAY to become a caregiver alone, as you can simply become a patient. You cannot get a license as a caregiver and then go out and find patients. You can get a license as a patient.

 

Dr. Bob

THIS IS RIGHT OUT OF THE RULING.

Permit registered and unregistered patients and primary caregivers to

 

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

 

involving marijuana.

[bobandtorey]

This is a great victory. But what is the victory?

1. If you have a card, and are following the law, you cannot be arrested.
   
2. If you have a card, and are suspected of violating the law, you can be arrested, and this decision confirms your ability to use the Section 8 defense (again, paraphrased)
   
3. If you don't have a card (by this I mean the 21 days hasn't elapsed but have been seen by the doc), you can use the Section 8 defense to justify your violation.
   
4. If you haven't seen the doc prior to the raid, you can't use the defense (the before the Act became effective doesn't really apply to folks having new issues in 2012).
   

Point one is self explainatory.

Point two comes into play when you have small errors, like an unlocked front door, or have 14 plants because you are a cancer patient using simpson oil and NEED that many to keep your supply. You are violating the Act, you can claim patient status, and try and get the jury to agree you need 14 plants. But you still go to court. The jury decides the validity of your story, but they get to hear it.

Point three is same pretty much as point two, Point four is self explainatory.

 

Problems and misconceptions.

 

Just having a card does not mean you can do what you want. You can't violate the basic provisions of the act and expect the police to ignore the violation. You can't grow in your front yard, you can't have 2 pounds, nothing has changed with that.. You can just defend yourself a little better, and it is up to the jury to buy that defense.

 

Getting the certification but refusing to participate in the registry means you will have to defend yourself if arrested, even if you were fully compliant with the Act (see point three). It is absurd to think that by refusing to participate in the registry you somehow have more rights than someone who does. If a registered patient has to re-register annually, why on Earth would anyone assume someone who doesn't register would have an unlimited certification? Perhaps an actual lawyer might be able to answer as to how the courts generally deal with this type of situation. My non-lawyer opinion is that they would view it as the same as a registration- annual. The reason for this is the caregiver change form. There is technically NO waiting period on the change form, no 21 days. It is not addressed in the Act or the Rules. Speaking with attorneys they mentioned a concept called construction, similar activities within an act are assumed to be enforced in a similar way, and most likely they would require a 21 day waiting period on the change form if the issue went to court. Same with certified patients that elect not to participate in the registry, and that is the way a lawyer I know handles his unregistered card.

 

The information is presented as a non-legal opinion. If it makes sense to you, use it when you decide what you do. I know what I would do if I wanted to be safe.

 

Dr. Bob

In People v Redden, ___ Mich App ____; ___ NW2d ___ (2010) (slip op at 8-10), the majority rejected the prosecution’s argument that the affirmative defense under section 8 was unavailable to the defendants because they did not possess valid registry identification cards at the time of the offense. The prosecution argued that section 7(a), incorporated by reference into section 8, required a defendant to have complied with section 4 in order to invoke section 8. The majority agreed with the defendants that “the MMMA provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act. Individuals may either register and obtain a registry identification card under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in § 8.” Id. at 10. It declined to address the prosecution’s argument that a section 8 defense was not available because the marijuana was not kept in an “enclosed, locked facility” because defendants had not raised the issue on appeal and it had not been fully briefed by the parties. It noted, however, “that the language concerning an ‘enclosed, locked facility’ is set forth in the context of § 4, not in the context of § 8.” Redden, ___ Mich App at ____ (slip op at 11 n 8.)

[restlesslegs]

There are certain cases where section 8 could be used, case in point diseases that don't go away.

 

I am a caregiver, my patients paperwork has not been completed by the state, it has been over 60 days but no record of me being the patients caregiver in the registry. I am arrested and in their eyes an unregistered caregiver if they were to rely on the state system registry. Is it 4 or section 8?

[Dr. Bob]

You folks are really missing the point here. The physician certification confirms the patient has a qualifying condition and would benifit from marijuana. We all agree on that right?

 

As for caregivers, there are other requirements, age 21 and no felony drug offenses, does everyone agree on that?

 

Are you somehow suggesting that caregivers can 'self qualify themselves'????? I promise I am 21 and not a drug felon....yeah right.

 

Then how are you going to connect this self proclaimed caregiver to a patient, or assure they have no more than 5 patients?

 

So imagine this, you get arrested for selling meds to a patient. You go to court and claim you are a medical marijuana caregiver. They go to your house and find 50 plants.

 

Now here is what you have to prove.

1. You are 21 and don't have a drug related felony.
   
2. You have enough patients (and yourself if need be and you have the documents to prove it) to justify 50 plants.
   
3. Are these all your patients, they are no one elses patients, and they just have you as their caregiver.
   
4. Why you didn't follow the rules like everyone else, what are you hiding?
   

Ok, now play prosecutor, how would you convict this person?

1. we found 1 guy with 50 plants and no paper trail to explain the extra 32 (assuming you are a patient)
   
2. we can't find anyone claiming to be his patient
   
3. we have no way of knowing, for sure, that this patient belongs to this caregiver, it appears as though there may be some sharing of patients and caregivers depending on who has what, who needs what, and who is caught with what.
   
4. There is a registry program to keep track of these things, this 1 patient with 50 plants has not participated in that registry, has no caregiver card, and has 32 plants more than he can prove.
   

There are those of you that love the idea of a great knight's quest to fight the good fight. With what money, what lawyers, and how long are you prepared to sit in jail for the good fight? Is this really an issue worth the cost, both personally, for the program and in general the public perception of patients, caregivers, etc.

 

Dr. Bob

[GregS]

If you know a lawyer that is a patient, you can have a special arrangement for court appearances. Apparently some among us are satisfied enough with section 8 protection. Some are not. The risks are well enough explained, and reasonable people will make reasonable decisions.

 

I choose to believe that the absence of any responses from lawyers that counter mine is an indication that they are correct.

 

Section 8 does require that a primary caregiver be over 21 and without any prior felony drug convictions.

[GregS]

All that remains is to stay under the federal radar.

[GregS]

And for what it's worth, anyone reading the opinions should first read the appendix found in the last three pages.

 

APPENDIX

 

In light of the need for guidance regarding the medical use of marijuana in

Michigan, the following is designed to summarize our numerous holdings in these cases.

1. Section 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26424,

provides qualified registered patients broad immunity from “arrest, prosecution, or

penalty in any manner” and protection from the denial of “any right or privilege,

including but not limited to civil penalty or disciplinary action by a business or

occupational or professional licensing board or bureau, for the medical use of marihuana

in accordance with this act . . . .”

2. To be entitled to the broad immunity of § 4, a qualifying patient with a registry

identification card who has not specified a primary caregiver must possess no more than

2.5 ounces of usable marijuana and 12 marijuana plants, which must be kept in “an

enclosed, locked facility.”

3. Registered patients who do not qualify for immunity under § 4, as well as

unregistered persons, are entitled to assert in a criminal prosecution the affirmative

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

4. Section 8 of the MMMA provides a limited protection for the use of medical

marijuana in criminal prosecutions, which requires dismissal of the charges if all the

elements of the defense are established.

5. A defendant need not establish the elements of § 4 to have a valid affirmative

defense under § 8.

6. A defendant who moves for the dismissal of criminal charges under § 8 must

raise the defense in a pretrial motion to dismiss and for an evidentiary hearing.

33

7. A defendant is entitled to the dismissal of criminal charges under § 8 if, at the

evidentiary hearing, the defendant establishes all the elements of the § 8 affirmative

defense, which are (1) “[a] physician has stated that, in the physician’s professional

opinion, after having completed a full assessment of the patient’s medical history and

current medical condition made in the course of a bona fide physician-patient

relationship, the patient is likely to receive therapeutic or palliative benefit from the

medical use of marihuana,” (2) the defendant did not possess an amount of marijuana that

was more than “reasonably necessary for this purpose,” and (3) the defendant’s use was

“to treat or alleviate the patient’s serious or debilitating medical condition or

symptoms . . . .” As long as a defendant can establish these elements, no question of fact

exists regarding these elements, and none of the circumstances in § 7(b), MCL

333.26427(b), exists, then the defendant is entitled to dismissal of the criminal charges.

8. With regard to the physician’s statement required by § 8(a)(1), the defendant

must have obtained the physician’s statement after enactment of the MMMA, but before

the commission of the offense.

9. If a defendant moves for dismissal of criminal charges under § 8 and at the

evidentiary hearing establishes prima facie evidence of all the elements of the § 8

affirmative defense, but material questions of fact exist, then dismissal of the charges is

not appropriate and the defense must be submitted to the jury.

10. If a defendant moves for dismissal of criminal charges under § 8 and at the

evidentiary hearing fails to present evidence from which a reasonable jury could conclude

that the defendant satisfied the elements of the § 8 affirmative defense, and there are no

questions of fact, then the circuit court must deny the motion to dismiss the charges. In

34

this instance, the defendant is not permitted to present the § 8 defense to the jury. Rather,

the defendant’s remedy is to apply for interlocutory leave to appeal.

Edited June 1, 2012 by GregS

[Dr. Bob]

If you know a lawyer that is a patient, you can have a special arrangement for court appearances. Apparently some among us are satisfied enough with section 8 protection. Some are not. The risks are well enough explained, and reasonable people will make reasonable decisions.

 

I choose to believe that the absence of any responses from lawyers that counter mine is an indication that they are correct.

 

Section 8 does require that a primary caregiver be over 21 and without any prior felony drug convictions.

 

What are you implying about 'special arrangement for court appearances'? I didn't set it up, he did because he has worked specifically with cases where the certification paperwork was used in a case and there was no attempt to participate in the registry.

 

To answer your questions, why don't you head over to this thread and get the answers you need from a lawyer.

 

http://michiganmedicalmarijuana.org/topic/39974-hitchhikers-guide-to-relying-on-the-aff-defense-in-section-8/page__st__20

 

You will see rather quickly what the truth is.

 

Dr. Bob