Some Stuff On Sec. 8 But Also Some Other Stuff And Some Bickering, Off Topic Stuff And Some Name Calling-sprinkled With A Pinch Of Tangential Opinions

[+Annnie]

Thanks CL.. We appreciate what you do for us.. :-)

[Dr. Bob]

I never ever recommended that folks simply do the minimun and hope for the best.. You said i said that.. the thread is here to read..

 

I didn't say you did, but it is becoming a common theme in this discussion.

[Dr. Bob]

Think you're in the clear to rely on just a cetification or recommendation and employ the affirmative defense after the recent Sup Ct opinions in King and Kolanek? Thing again!

 

 

That was the very first line of this thread. I love it when people pop in the middle of a conversation and toss out their own opinions without looking at the entire thread. How did we go for that statement from a QUALIFIED individual to me getting my ox gored and 2009 certifications give you a free ride forever? Folks need to take a step back and listen before going off on tangents.

 

Dr. Bob

Edited June 1, 2012 by Dr. Bob

[+Annnie]

Listen to your common sense.. and common reading of the law.. that is now what MUST happen..

 

We understand the other two pts of the aff defense must be met.. and then it SHALL be dismissed!!

[+Annnie]

Unambiguous in public, compassionate in private.

 

Ambiguous compliance is only for people with lawyers and an iron will to see it through to the happy ending.

 

True that..

[CaveatLector]

Loving this great input!

Edited June 27, 2012 by CaveatLector

[CaveatLector]

There is some discussion in another thread regarding whether one can use a certification from 2009 to satisfy an aff def today. So let's analyze this here as I think this thread is more appropriate for the content.

 

Section 8 requires:

 

(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 to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

 

 

So, from the quoted section above it is clear you need some sort of Dr statement that you would receive a medical benefit from use. The courts have interpreted this section to mean that the Dr statement must be made after the act went into effect and before arrest. This was done by analyzing the word "has" and its modifcation of "stated." Has, being past tense, was what the court used in arriving at their conclusion.

 

So, how old can the statement be? Well the section requires a full assessment of the pt's medical history and current medical condition. That would tend to indicate that the act expects that the statement not be so old so as to be obselete. For illustrative purposes let's look at a patient with asthma. Asthma is incurable. However, a Dr does not generally give you a standing, unlimited prescription to asthma meds for your entire natural life. The Dr expects you to be re-evaluated from time to time. Why? Because there is a chance that the meds could be interacting negatively with other medical conditions or other medicines. Or there is a chance that the meds are no longer the best meds for you. Maybe they have been shown to be damaging or maybe newer meds are better. So, with this in mind, apply that same theory to marijuana.

 

It would seem to me that, given the fact that mj is not yet over-the-counter medicine, a Dr would want to reassess you from time to time. See if the meds are still working. Discuss whether they have bad side effects or whether mj is working against other prescribed meds. See if there is a new med out there that would work better for you. This is especially important if the meds are prescribed for palliative measure. For example, if you had scurvy (haha, not the best example but it works to illustrate the point) and the Dr prescribed mj for palliative purposes the Dr would want to take you off mj after it was discovered that vitamin C would cure scurvy. Then the Dr would tell you to just go eat an orange.

 

Given all of this I think there is a line to be drawn somewhere when deciding whether a Dr statement is still any good for section 8 purposes. I don't know where that line is but it is probably safe to say a year is good. Maybe you could get by on 2 years if your condition was such that it wasn't expected to change. At any rate, a prescription is usually good to be filled for one year. One reason behind that is because if you fill it beyond that maybe your medical condition has changed such that that script is no longer the best option. I would guess that the word "current" in regard to the medical condition would be interpretated to mean a reasonable amount of time in regard to the practice of medicine. I would guess that a 3 year old recommendation would probably be insufficient because it doesn't deal with your current condition or state.

 

It is hard to say how that would be interpreted but I think it is fair to say that it will not be interpretated to allow for no sunset on a recommendation. Fast forward 40 years. Would the court accept a rec. that is 40 years old? Haha, probably not. I think "current" will be the defining word in this discussion. I also think current will be interpreted as "reasonably contemporaneous" based on standard of care in regard to prescribing meds or recommending treatments for your specific condition. In other words, it may turn on whether a Dr testifies that it was still reasonable to be using mj based on a recommendation made for a condition x months or years ago.

[trix]

Lastly, don't be naive and think that you can scream sec 8 and the prosecutors will drop everything. I personally have seen prosecutors continue to pursue cases that were bound to be dismissed due to constitutional violations. They won't come out and say it but I think it is clear that they feel if they make the defendant pay through the nose to the atty by drawing out the case then that is punishment in itself even if the case is later dismissed.

 

 

Be safe. Do smart things.

 

 

The court system will drag their feet, in my case I can vouch for the above underlined statement, they knew my case was a 50/50 shot at trial, but they never had any intention of letting me go until the very last few minutes in the back room between the PA, and Mr. Komorn. They milked me for everything before saying dismissed, without any way to recoupe my losses from not taking a plea like they insisted.

 

BE SMART. MAKE WISE CHOICES!!

 

Trix

[man of steel]

There is some discussion in another thread regarding whether one can use a certification from 2009 to satisfy an aff def today. So let's analyze this here as I think this thread is more appropriate for the content.

 

Section 8 requires:

 

(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 to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

 

 

So, from the quoted section above it is clear you need some sort of Dr statement that you would receive a medical benefit from use. The courts have interpreted this section to mean that the Dr statement must be made after the act went into effect and before arrest. This was done by analyzing the word "has" and its modifcation of "stated." Has, being past tense, was what the court used in arriving at their conclusion.

 

So, how old can the statement be? Well the section requires a full assessment of the pt's medical history and current medical condition. That would tend to indicate that the act expects that the statement not be so old so as to be obselete. For illustrative purposes let's look at a patient with asthma. Asthma is incurable. However, a Dr does not generally give you a standing, unlimited prescription to asthma meds for your entire natural life. The Dr expects you to be re-evaluated from time to time. Why? Because there is a chance that the meds could be interacting negatively with other medical conditions or other medicines. Or there is a chance that the meds are no longer the best meds for you. Maybe they have been shown to be damaging or maybe newer meds are better. So, with this in mind, apply that same theory to marijuana.

 

It would seem to me that, given the fact that mj is not yet over-the-counter medicine, a Dr would want to reassess you from time to time. See if the meds are still working. Discuss whether they have bad side effects or whether mj is working against other prescribed meds. See if there is a new med out there that would work better for you. This is especially important if the meds are prescribed for palliative measure. For example, if you had scurvy (haha, not the best example but it works to illustrate the point) and the Dr prescribed mj for palliative purposes the Dr would want to take you off mj after it was discovered that vitamin C would cure scurvy. Then the Dr would tell you to just go eat an orange.

 

Given all of this I think there is a line to be drawn somewhere when deciding whether a Dr statement is still any good for section 8 purposes. I don't know where that line is but it is probably safe to say a year is good. Maybe you could get by on 2 years if your condition was such that it wasn't expected to change. At any rate, a prescription is usually good to be filled for one year. One reason behind that is because if you fill it beyond that maybe your medical condition has changed such that that script is no longer the best option. I would guess that the word "current" in regard to the medical condition would be interpretated to mean a reasonable amount of time in regard to the practice of medicine. I would guess that a 3 year old recommendation would probably be insufficient because it doesn't deal with your current condition or state.

 

It is hard to say how that would be interpreted but I think it is fair to say that it will not be interpretated to allow for no sunset on a recommendation. Fast forward 40 years. Would the court accept a rec. that is 40 years old? Haha, probably not. I think "current" will be the defining word in this discussion. I also think current will be interpreted as "reasonably contemporaneous" based on standard of care in regard to prescribing meds or recommending treatments for your specific condition. In other words, it may turn on whether a Dr testifies that it was still reasonable to be using mj based on a recommendation made for a condition x months or years ago.

 

Would a verbal statement count? I ask this for all who have a primarys approval for use but can't sign rec.

[+Malamute]

A "Full Assessment" is not too hard to accomplish.

 

This means, any attainable medical records, the patient(or person legally responsible) filling out themselves a medical history of themselves and quite often direct family members(we all fill these out when we see a doctor the first time), and the doctor speaking with the patient about their medical history and documenting it in the charts.

 

That is how i understand it.

[man of steel]

I am not a lawyer, but am just making a guess before CaveatLector, who is a lawyer, weighs in on this issue.

 

I think verbal will be a test case, which will lose at the COA, and will ultimately be resolved by the Supreme Court using the ballot language, and win.

 

I also understand this would not be good to use against doctors.

[Dr. Bob]

I seem to recall there was a case down around Adrian or thereabouts where a doctor DID come in and testify they had discussed it with the patient, but because the statutory language was not used in the chart- there was nothing to the effect of 'I evaluated this patient and feel they have a qualifying condition and would benifit from MMJ' it was NOT accepted as a certification.

 

Dr. Bob

[CaveatLector]

Edited June 27, 2012 by CaveatLector

[man of steel]

I seem to recall there was a case down around Adrian or thereabouts where a doctor DID come in and testify they had discussed it with the patient, but because the statutory language was not used in the chart- there was nothing to the effect of 'I evaluated this patient and feel they have a qualifying condition and would benifit from MMJ' it was NOT accepted as a certification.

 

Dr. Bob

Thats why I said verbal and understand what you are saying, I don't think the conversations are on the record.

Is there a difference between cert(sec4) and statement(sec8) to qualify?

[peanutbutter]

Think you're in the clear to rely on just a cetification or recommendation and employ the affirmative defense after the recent Sup Ct opinions in King and Kolanek? Thing again!

 

If that is your plan, to rely on your certification or recommendation, then you may be in for some trouble and a rude awakening. So let's clear this up so you make an informed decision.

 

First off, if you don't have a card and are relying on your certification only then plan on being arrested. Plan on spending up to 48 hours in jail before be arraigned and bond being set. Then plan on either getting a court appointed attorney or spending a lot on a retained attorney.

 

Then what? Well, if it's a felony you're charged with, then expect to go to your preliminary examination. If the judge there will hear your aff def then maybe s/he will dismiss the case. But maybe not. If not, then plan on going to circuit court. It is there that your attorney will file and argue the aff def. Expect to either subpoena your doctor to testify (and tinkle him off) or expect to pay him as an expert witness. Also expect to be able to prove that you needed x ounces (or plants) to ensure a continuing supply.

 

Lastly, and most importantly, be prepared for proving the heightened requirements of the sec 8 defense. Keep in mind that the administrative rules require less of a dr for the certification than sec 8 requires for an aff def. What does that mean? It means that you could end up in circuit court with a signed cert or card and still be convicted.

 

The administrative rules state:

 

(22) “Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

That written certification is what is needed for a card under section 4.

 

On the other hand, Section 8 requires:

 

(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 to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

So section 8 requires a full assessment of the patient's history whereas the rules don't require that for a card. Section 8 also requires the bona fide dr/pt relationship but that seems a foregone conclusion if a dr signs the certification.

 

At any rate a bare bones section 4 certification probably isn't adequate to cover for a section 8 defense. So if you have your card and are relying on that, or a recommendation or certification, make darn sure that your Dr made a full assessment of your history. In other words, a few months of medical records may be adequate for a card but not so much for a sec 8 defense.

 

So what does all this mean? It means you should make sure you get that full assessment of your history and make sure you have a bona fide relationship (don't buy a cert. from the back of an appliance store!)

 

Lastly, to qualify all of this, I will concede that sec 4f requires the same thing as sec 8 in order for a doctor to be immune from prosecution but those elements in sec 8 are not all required to get the card anywhere else. So, a doc may lose his immunity from prosecution for not conducting a full assessment of your history BUT that doesn't mean you wouldn't be entitled to a card. In other words there is a hypothetical situation where a doc could certify you and you get your card and your card is valid but the doc isn't immune from prosecution.

 

The point here is don't be tricked into thinking you are safe and able to utilize sec 8 just because you have a card or a cert. I can easily see this being the next bone that the prosecutors pick if we start seeing sec 8 defenses!

 

Lastly, don't be naive and think that you can scream sec 8 and the prosecutors will drop everything. I personally have seen prosecutors continue to pursue cases that were bound to be dismissed due to constitutional violations. They won't come out and say it but I think it is clear that they feel if they make the defendant pay through the nose to the atty by drawing out the case then that is punishment in itself even if the case is later dismissed.

 

There is more than sec 8 than the issues presented here but you need to be mindful of the presented issues in particular. Will prosecutors accept the card or a cert or recommendation as fulfilling the medical and dr requirements of sec 8? Maybe. In fact I'm sure a lot would but don't be the one fighting this exact issue and left holding the bag for 3 years as it is appealed up to the Sup Ct.

 

If you have your card and think it wouldn't hurt to grow 2 more plants and expect your card will cover for you in regard to the medical requirements of sec 8 then at least be sure you have covered yourself in regard to ALL of the elements required in sec 8.

 

 

Be safe. Do smart things.

 

All of that is interesting, however there is no such thing as a section 4 defense.

 

Section eight is the tool for courts.

 

Please correct me if I get this next part wrong:

 

To use the section eight defense, it must first be presented at pretrial. Then it MIGHT still be able to be presented to the jury.

 

There are distinct elements of a section eight defense.

"locked facility" isn't one of those elements. Correct?

ID card isn't one of those elements. Correct?

[Dr. Bob]

All of that is interesting, however there is no such thing as a section 4 defense.

 

Section eight is the tool for courts.

 

Please correct me if I get this next part wrong:

 

To use the section eight defense, it must first be presented at pretrial. Then it MIGHT still be able to be presented to the jury.

 

There are distinct elements of a section eight defense.

"locked facility" isn't one of those elements. Correct?

ID card isn't one of those elements. Correct?

 

Nice of you to correct the Attorney PB> Let's just concentrate on what the lawyer is telling us. Let it sink in.

 

Dr. Bob

[Shredder]

As I understand it, at trial a judge must grant an evidentiary hearing. If the three things section 8 require are met the judge must drop the charge. If he feels like any of the three parts to section 8 are a question of law, he must allow a jury to hear it and decide. The only way a judge can deny a section 8 defense is if the case is outside of section 8 requirements, and if he rules you can not use section 8, that decision is appealable........shredder

[peanutbutter]

The Biggest thing in this ruling is that you don't have to fulfill the requirements of four to use eight.

 

So ignore four when you are talking about court.

 

This is like two different laws in one.

[peanutbutter]

12 and 2.5 are section four.

 

reasonable amount is section eight

 

12 and 2.5 are the bare minimum amounts that are reasonable .. I figure.

 

So then .. how much topical oil, that you can't get high on, is a reasonable amount?

 

Hi Annie

[Dr. Bob]

12 and 2.5 are the bare minimum? I believe they are actually the maximum that would be considered reasonable without having to be justified. To exceed that amount would result in a charge and need to be justified to the jury, or so I would think.

 

Dr. Bob

[peanutbutter]

12 and 2.5 are the bare minimum? I believe they are actually the maximum that would be considered reasonable without having to be justified. To exceed that amount would result in a charge and need to be justified to the jury, or so I would think.

 

Dr. Bob

 

Interesting .. did we both just say the same things?

 

When we're talking about things like Simpson oil, larger quantities are required.

 

In CA they do juicing. It takes 90 plants per patient. Every day the patient harvests one plant and starts another new one. All plants stay in veg cycle. they never flower them.

Is 90 plants reasonable?

 

It just needs to be shown that much is being rationally used.

[man of steel]

12 and 2.5 are the bare minimum? I believe they are actually the maximum that would be considered reasonable without having to be justified. To exceed that amount would result in a charge and need to be justified to the jury, or so I would think.

 

Dr. Bob

What about enough to fill a tub to soak feet in?

My wife has one of those warm wax things for your feet. If I could use an infused solution it would be wonderfull and would be willing to perfume it as to no other use.

I got real bad feet. Diabetic neuropathy and more

Edited June 1, 2012 by man of steel

[Dr. Bob]

Interesting .. did we both just say the same things?

 

When we're talking about things like Simpson oil, larger quantities are required.

 

In CA they do juicing. It takes 90 plants per patient. Every day the patient harvests one plant and starts another new one. All plants stay in veg cycle. they never flower them.

Is 90 plants reasonable?

 

It just needs to be shown that much is being rationally used.

 

No we did not. You said 12 and 2.5 are the minimum needed, I said they are maximum allowed without justification. If you have more than that, expect to be arrested and have to justify why you need them to a jury that doesn't know the difference between simpson oil and wesson oil. But they can count to 2.5 and 12.

 

Dr. Bob

[Dr. Bob]

What about enough to fill a tub to soak feet in?

My wife has one of those warm wax things for your feet. If I could use an infused solution it would be wonderfull and would be willing to perfume it as to no other use.

I got real bad feet. Diabetic neuropathy and more

 

Whatever you can safely justify to a jury. But you may have to justify it to a jury at no small expense in time, legal fees, and irritation.

 

Dr. Bob

[GregS]

Loking at this prospectively, as long a a patient continues to treat for the qualifying condition there are clinical notes regarding the details of the condition that are readily available to establish current medical condition. The initial consultation would have been the one and only time a certification would be required.