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

[Highlander]

And here we are ..

 

We discuss possible outcomes. Everyone has their reasons to expect one or another outcome.

 

But we just have to wait to see.

 

On 1/5/2009 the MDCH established the seventy two plant count. In a public hearing. That would be the maximum under section four when the caregiver has five patients and the caregiver is a patient also.

 

It is POSSIBLE that the SC could reverse that and count the caregiver as one of the five allowed UNDER SECTION FOUR.

I don't believe that outcome is PROBABLE as the MDCH was given authority to make rules.

 

BTW .. Thanks to Matt Able for asking the question at the hearing. Awesome.

 

 

I don't know how you work plant count and "can a pt be a CG too" into the McQueen case, but the ruling we have seen so far out of the SC were unanimous and very narrow:

 

a defendant asserting the § 8 affirmative defense is not required to establish the requirements of § 4The 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

 

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, and we affirm the Court of Appeals in this regard

 

Very narrow:

 

Don’t need to satisfy Section 4 to use Section 8

 

Need Dr. statement after 12/9?/2008 but before you engage in medical use

[Restorium2]

I don't know how you work plant count and "can a pt be a CG too" into the McQueen case, but the ruling we have seen so far out of the SC were unanimous and very narrow:

 

a defendant asserting the § 8 affirmative defense is not required to establish the requirements of § 4The 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

 

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, and we affirm the Court of Appeals in this regard

 

Very narrow:

 

Don’t need to satisfy Section 4 to use Section 8

 

Need Dr. statement after 12/9?/2008 but before you engage in medical use

And how long does the Dr. statement last? 60 days, 90 days, forever? Does it depend on the diagnosis?

[Highlander]

And how long does the Dr. statement last? 60 days, 90 days, forever? Does it depend on the diagnosis?

 

I don't have a good answer for you but this is a good example of just how narrow the SC ruling is.

 

It seems to me that if your Dr. signed a cert three years ago but you never registered, got busted, and got a Dr. to testify AT YOUR TRIAL that you're still a qualifying patient, you'd be good to go.

Edited July 22, 2012 by Highlander

[Dr. Bob]

The doctor statement lasts as long as the registration would last. In other words, if the current registration lasts one year, your doctor statement is good for one year. If it changes to a two year registration, your doctor statement will last two years. The reason for this is that it must be a 'current' statement, and 'current' is defined in the registration process. Otherwords, if someone brought in something from the 70's saying MMJ could help them, they would not only be covered for the last 40 years, but for the rest of their lives. That dog won't hunt in court I suspect.

 

Hope that helps.

 

Dr. Bob

[peanutbutter]

The doctor statement lasts as long as the registration would last. In other words, if the current registration lasts one year, your doctor statement is good for one year. If it changes to a two year registration, your doctor statement will last two years. The reason for this is that it must be a 'current' statement, and 'current' is defined in the registration process. Otherwords, if someone brought in something from the 70's saying MMJ could help them, they would not only be covered for the last 40 years, but for the rest of their lives. That dog won't hunt in court I suspect.

 

Hope that helps.

 

Dr. Bob

 

Never seen that in the MMMA.

 

Note that the SC ruling said nothing about how recent the letter has to be. They listed the specific things that must be shown for the case to be dismissed. Was one of those things about the letter not being "expired?" I didn't notice, but maybe I missed it.

 

Just that it had to have been signed after the law went into effect and before an arrest.

[SFC]

Good luck with that PB, seriously man. This law is not and never will be a free for all man. It is not unreasonable to expect a time frame for a doctors rec to remain valid. It may not be specifically addressed but the question you better be asking is will it stand up in court and what is easier?

[AKenewell]

I don't think it would stand up in court..no way!!

[peanutbutter]

Can someone post the EXACT list that the SC said would trigger "case dismissed?" Does that list include any concept of "freshness?"

 

If it does not, then the SC would need to issue a new ruling that included the concept. And until then, it has been tested at the highest level of court.

 

Sorry, this has impact on patient flow thus income.

Edited July 22, 2012 by peanutbutter

[SFC]

I admire your zeal for this PB, I really do, but you and I both know there will be some common sense involved with these rulings and not all of it is what we would necessarily want.

[peanutbutter]

Is it safe to put your favorite words into the SC ruling? I think not.

 

That's why I asked for the EXACT words used by the SC. Not "common sense" about those words.

 

I'm sure that plenty of PAs would be very happy to claim "the SC really didn't mean THAT."

 

And a judge might agree to ignore the MMMA and the SC at the same time. True that. Judges ignoring the law are a danger to the entire public.

Edited July 22, 2012 by peanutbutter

[+Malamute]

Can someone post the EXACT list that the SC said would trigger "case dismissed?" Does that list include any concept of "freshness?"

 

If it does not, then the SC would need to issue a new ruling that included the concept.

 

So far, only 2 factors released on "freshness":

 

1) Must have been after the Act passed

2) Must have been before the arrest

 

That doesnt mean there are not more issues around "freshness" nor does it mean both of those factors will remain true in future S.C. rulings. The S.C. may be the final arbitor, but each session can overrule the previous. So even that ruling may not be final and absolute word on the topic.

 

We can play the cat and mouse game forever. I mean.. the Derror and Feezel decisions are a perfect example.

 

:-)

 

Just because we have Feezel, does not mean Koon might not impact that decision.

 

When it comes to courts, it is a neverending process.

[+Malamute]

I can add, i would say most physicians would consider a 4 year old "recommendation" to be ancient. Would have to find a real friendly physician willing to put their donkey ont he line to defend one that old.

[Dr. Bob]

Never seen that in the MMMA.

 

Note that the SC ruling said nothing about how recent the letter has to be. They listed the specific things that must be shown for the case to be dismissed. Was one of those things about the letter not being "expired?" I didn't notice, but maybe I missed it.

 

Just that it had to have been signed after the law went into effect and before an arrest.

 

Sec. 8. (a) Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

 

(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;

 

There ya go PB glad to help. If you are interested in the legal implications of this section of the law, and don't want to have me explain it again, why don't you review the excellent presentation CL did on it last month.

 

Dr. Bob

[peanutbutter]

That's fairly twisted, to view that as meaning the document expires.

 

Case law COULD convert it that way.

 

Still .. what EXACTLY did the SC say?

Edited July 22, 2012 by peanutbutter

[CaveatLector]

That's fairly twisted, to view that as meaning the document expires.

 

Case law COULD convert it that way.

 

Still .. what EXACTLY did the SC say?

 

The supreme court did not give us an all-encompassing and navigable path through the MMA. The court dealt with the issues before it as it is required by law. The court isn't allowed to deal with issues not presented on appeal. Doing that is known as an advisory opinion and generally an advisory opinion is unconstitutional. Furthermore, any advisory opinions that come out of a court's opinion cannot set precedent.

 

Dr. Bob is 100% correct in his analysis. The act indicates that the Dr opinion must be based on your "current" medical condition. This is the same reasoning behind drs not giving a lifetime prescription for your asthma medicine. Asthma is generally accepted as a lifetime condition but there are OTHER factors involved when prescribing meds. We've been down this road before and this is a rehashed argument.

 

If your recommendation is 10 years old (in 2019 let's say) then that is not based on your CURRENT condition. A dr could very well tell you that marijuana is not good for you because of interactions with other drugs for other conditions or maybe because it raises or lowers your BP too much and you've grown older and, along with that, are experiencing hypo or hypertension. Maybe there even is a better drug now available and your dr would not prescribe mm because s/he would rather prescribe some other magic bullet.

 

Those are a FEW of the reasons why a rec. has a shelf life. What is the shelf life? That is to be determined based on interpretations of the act when, and if, it comes before a court. Remember, "current" isn't an "extra" word in the act. It has meaning.

[Restorium2]

If you keep treating with the doctor, on a regular basis, that did your first rec, then you should be covered. You could easily make that case with the help of the doctor. But lets say you saw Dr. Eisenbud on 12-08, you laminated the rec., have not seem him since, and expect that to hold up with sec. 8. I think you might have quite an uphill climb in court.

[peanutbutter]

If you keep treating with the doctor, on a regular basis, that did your first rec, then you should be covered. You could easily make that case with the help of the doctor. But lets say you saw Dr. Eisenbud on 12-08, you laminated the rec., have not seem him since, and expect that to hold up with sec. 8. I think you might have quite an uphill climb in court.

 

Up hill fight? agree.

 

THIS is interesting "Doing that is known as an advisory opinion and generally an advisory opinion is unconstitutional."

Do you ask the SC to declare their own unanimous ruling unconstitutional???

Edited July 22, 2012 by peanutbutter

[CaveatLector]

Up hill fight? agree.

 

THIS is interesting "Doing that is known as an advisory opinion and generally an advisory opinion is unconstitutional."

Do you ask the SC to declare their own unanimous ruling unconstitutional???

Your trouble is your failure to differentiate between the ruling of the case and dictum contained therein. You calling dictum a ruling does not make it so. The court can say anything it wants in dictum. Dictum is not binding precedent. The court can tell us black is white within the body of its opinion and that does not then mean that black is then legally white. You wouldn't need the court to overrule itself to declare black is not white.

 

Highlander, above, quoted the ruling and told you that the ruling was narrow. He was correct but you ignored that. You tend to do that a lot on this forum. Things you don't want to hear you simply ignore and then act as if they weren't stated and act as if your premise is still valid.

 

Again, dictum does not create law anymore than banter between 2 SC justices at the local coffee shop creates law. If you are going to interpret a court opinion you need to learn how first. Not everything written in a court opinion becomes caselaw.

[CaveatLector]

Parenthetically, the supreme court does change its mind form time to time and reverse prior decisions. That is not at all unheard of...

[peanutbutter]

I think the dictum is a pretty good indicator how they will rule on each of those points they carefully listed.

[CaveatLector]

It can be perilous to predict exactly what the SC will say in the near future.

 

Many of us have ideas about that. Fact is, we just have to wait and see.

 

But "transfers" is clearly on the agenda to be ruled on. And soon.

Again .. predicting what the SC will or won't do .. I HOPE they cover more.

 

If the go with p2p, that would cover most situations.

I can't force them to hurry up. I have no choice but to wait to know for sure exactly what they will say.

 

Is your crystal ball perfect? Of course not.

 

Aside from waiting, exactly how do you KNOW what they will say? You don't. Neither do I.

 

So far, the SC has said that the COA reasoning has faulty foundations. I think they are probably right there.

I think the dictum is a pretty good indicator how they will rule on each of those points they carefully listed.

 

You don't know when to stop do you? We need an emoticon where the smiley guy shoves his foot in his mouth.

I am sitting here literally laughing and shaking my head. Love it when you post in that circular fashion though. It does provide comic relief.

 

Look, over there! Look closely. See it? You don't? Look BETWEEN the trees! See it now? Yes, that's it. There's the forest. Hard to see when those pesky trees get in the way, huh?

[peanutbutter]

You don't know when to stop do you? We need an emoticon where the smiley guy shoves his foot in his mouth.

I am sitting here literally laughing and shaking my head. Love it when you post in that circular fashion though. It does provide comic relief.

 

Look, over there! Look closely. See it? You don't? Look BETWEEN the trees! See it now? Yes, that's it. There's the forest. Hard to see when those pesky trees get in the way, huh?

I figure the last one is the best crystal ball we have right now.

 

That's why I wanted to look at those again.

 

BTW .. thanks for the implied "go fish."

[CaveatLector]

I figure the last one is the best crystal ball we have right now.

 

That's why I wanted to look at those again.

 

BTW .. thanks for the implied "go fish."

That's the point. What we have currently as caselaw can be looked at to take our best guesses. But when people (Highlander) did that above you ridiculed them over and over. Then you end with a statement in your defense that is doing the same thing---guessing the outcome of a future case based on past cases. Hypocrite much? (Yes I'm aware that hypocrite is a noun but in this case it makes for the perfect verb).

Edited July 22, 2012 by CaveatLector

[ozzrokk]

Highlander my point was that the appeals court have gotten nearly if not all MMJ situations in the past and the SC had to set them straight. And hopefully they will do it again on those supposed good points you talk about.

 

I disagree

 

They are not good points the law was written for patients. If providing meds to a patient is not medical use then I do not know what is.

[peanutbutter]

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

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.

 

It SOUNDS like a jury would get to determine if the condition is obviously still there. Current medical condition is what the doctor is supposed to evaluate. Not about the value of the document from that moment forward.

Edited July 22, 2012 by peanutbutter