Michigan Court Of Appeals Rules In Favor Of Medical Marijuana Patient

[Fat Freddy]

Just in from the DFP http://www.freep.com...7021/1001/rss01

 

 

By Dawson Bell

 

Detroit Free Press Lansing Bureau

• FILED UNDER
  

• Local News
  
• Michigan
  
• Medical Marijuana
  

 

Related Links

• PDF: Michigan Court of Appeals decision
  

By Gorge I think they are starting to get it. But I did note some tap dancing there.

 

 

LANSING – A Michigan medical marijuana patient cannot be prosecuted for illegal drug possession, despite not having proof of his registration at the time of arrest, the Michigan Court of Appeals said in a decision released this morning.

The court said, however, that police were within their rights to arrest the patient, identified in court records as James RG Nicholson, of Ottawa County, because he was unable to establish proof of registration on the spot.

Prosecutors had argued that Nicholson was not protected by the medical marijuana law because he did not “possess” a registry identification card at the time of arrest. He told police at the time, May 2011, that his registration card was in a car at his residence.

But the court found that, since Nicholson was a registered patient before his arrest and had the registration card in his possession when he appeared in court, he was immune from prosecution.

[Dr. Bob]

My concern is that once they have you arrested, they will feel the need to justify it. A section 8 hearing before dismissing the charges is a real possibility even if you show up with your card to court.

 

Dr. Bob

[Croppled1]

My concern is that there are many patients who may not be physically able to tolerate arrest and the disruption of medications that it will cause . Arrest at a minumum requires 48 hours without ones normal medical routine whether that be pillows to sleep on , temperature control , a myriad of behaviors people truly suffering utilize to remain sane and cope . People who are too ill to defend themselves who live one step away from a terrible foster care system that will bancrupt them the same as the medical , legal systems leaving nothing for life supporting nomral living expenses . We are creating a program for patients that often is taking away all quality of life and hurting individuals physically and menatlly . I can say after 4 years I feel things are becoming worse from what I read here and how the legislators are focusing on abusers and not on protecting patients first . Their efforts are keeping the price of cannabis elevated and thus as usual creating incentive for criminals to go after that profit . Exactly why we ended alchohal prohibition though the percentage of Americans that drink is higher then the 6% of the population the Goverment says uses cannabis despite it's illegal status for all but a few under medical relief .

Edited June 27, 2012 by Croppled1

[Dr. Bob]

My concern is that we are losing sight of the fact no one is telling you that you HAVE to leave your paperwork at home. It is pretty obvious from reading the ruling that had he had his paperwork on him, he should not have been arrested. That is great news and protects patients. I am sorry if folks end up in jail for 48 hours because they remember to bring their meds, but forgot to bring their paperwork/card.

 

People can complain about the ruling and potential to be arrested, but what are they really asking for? Trust me officer, I'm a patient? Is that realistic? Can you cite another example of the police overlooking a possible felony simply because the patient says 'take me at my word'?

 

How about the real lesson here??? If you have your cannabis with you, have your documentation with you. At least the good part of this ruling is that even if you violate rule number 1, at least they should drop the case when you show your proof of compliance at a later time.

 

Dr. Bob

[quietone]

After reading the decision I think it is a win for the community, but I see it also brings up another question. If I understand it correctly the defendant is going back to circuit court to prove he was complying with the "Medical Use" of marijuana. This could open up a whole new can of worms for patients I fear. Having to prove you were in the medical use of marijuana at the time you are arrested could be a problem. I see the defendant was in a car by a treatment plant. He was out in the open on a public road which doesn't sound like medical use and that is what a jury might think. And if i didn't understand it correctly chalk it up to too much medication.

[GregS]

If there is a refusal by police to afford reasonable accommodation to a qualified individual with a disability under the Title I of the Americans with Disabilities Act (ADA), they can be held responsible if other conditons of that law are met.

[GregS]

After reading the decision I think it is a win for the community, but I see it also brings up another question. If I understand it correctly the defendant is going back to circuit court to prove he was complying with the "Medical Use" of marijuana. This could open up a whole new can of worms for patients I fear. Having to prove you were in the medical use of marijuana at the time you are arrested could be a problem. I see the defendant was in a car by a treatment plant. He was out in the open on a public road which doesn't sound like medical use and that is what a jury might think. And if i didn't understand it correctly chalk it up to too much medication.

 

The COA remanded in a chickenschit kind of way, in that they ruled that the defendant was not in compliance with the act in not having his card in possession at the point of medical use. Subseqently he was not compliant with section 4. Use the AD, appeal, or plead. Those are his options, but registry protection is out the window.

Edited June 27, 2012 by GregS

[cristinew]

Freep: "Michigan Court of Appeals rules in favor of medical marijuana patient"

 

 

News: "Court: Medical marijuana users can be arrested if they don't have paperwork"

 

headlines do work ....

[Dr. Bob]

I think you should read it again. He still has a protection from prosecution or any penalty if the prosecutor is unable to rebut medical use.

 

Read the ruling? Posters have to be told to read the ruling they are posting about???? Oh yeah, never mind.

 

Your read is correct in my, non-legal opinion Zap, it is right there in the ruling.

 

Dr. Bob

[GregS]

I think you should read it again. He still has a protection from prosecution or any penalty if the prosecutor is unable to rebut medical use.

 

If that is the case it should be appealed.

[Dr. Bob]

I read that to be within the Act when it comes to medical use. Medical use is presumed as you noted with a card and at or under the limits of 2.5 oz, 12 plants. I think they are talking about a prosecutor having to show there was a violation of the limits or the card was invalid. Just how I looked at it, but you might be right.

 

Dr. Bob

[Dr. Bob]

If that is the case it should be appealed.

 

Wow, what a fantastic idea. We should appeal a good ruling for patients. Maybe we can have the Supreme Court rule that if you don't have the card you are fair game. Then we can appeal it to the Feds, and they can negate the entire act with supremacy.

 

Seriously, you want to appeal this? Really?

 

Do you ever think before you post? Apparently not. I'm not even convince you even read the case.

 

But you are very good at this. The thread is derailed to stunned silence.

 

Dr. Bob

[+Malamute]

The COA remanded in a chickenschit kind of way, in that they ruled that the defendant was not in compliance with the act in not having his card in possession at the point of medical use. Subseqently he was not compliant with section 4. Use the AD, appeal, or plead. Those are his options, but registry protection is out the window.

 

Simply wrong.

 

If the state can't prove on rebutting that it was not medical use, it will be dismissed with prejudice. :-) This is a Sec. 4 defense.

[+Malamute]

Yea.

 

I found this to be dicky and i actually think that can be appealed. The burden is on the state to prove Sec. 4(d) subsection (2). I am guessing the court will dismiss this case quickly.

 

The COA is still not our friend. They are giving the State any possible angle to pursue.

Edited June 27, 2012 by Malamute

[Fat Freddy]

Ok, here is my take on this ruling:

 

The CoA is basically telling the prosecution that they will have to prove that the patient in question was not using medical marijuana in compliance with the act.

Which begs the question: Was the patient using meds in a public place or was he merely in possession of the medical marijuana? ( In which case he is covered by the act )

Without a copy of the sentencing court's records we can only speculate as to what the outcome of testimony was. I say this is an instructional win for us.

[Dr. Bob]

Ok, here is my take on this ruling:

 

The CoA is basically telling the prosecution that they will have to prove that the patient in question was not using medical marijuana in compliance with the act.

Which begs the question: Was the patient using meds in a public place or was he merely in possession of the medical marijuana? ( In which case he is covered by the act )

Without a copy of the sentencing court's records we can only speculate as to what the outcome of testimony was. I say this is an instructional win for us.

 

With respect to Zap and Mal, two excellent thinkers on this board, I think Fat Freddy got it right. Just my non-legal opinion, but I think this is a win for us, and it is still up to the prosecution to show that the patient was NOT engaged in medical use, with the presumption being that they were engaged in medical use.

 

Dr. Bob

[Dr. Bob]

Why do you think they used this odd wording to describe the scenario you are talking about:

 

"Defendant still has one more hurdle to overcome to be entitled to

§ 4(a) immunity from prosecution; he must also establish that at the time of his arrest he was

engaged in the medical use of marijuana in accordance with the MMMA."

 

It seems that it could have the unintended (or possibly intended) effect of switching the burden to the defendant.

 

You have a point with this, but I don't think you are taking into account the presumption of medical use the patient will start with if he/she is within limits and using in an appropriate setting.

 

Example: I am a passenger in a car carrying 1 oz of cannabis. The driver is stopped, I am searched and they find the meds. I don't have my card with me (left it on the dresser at home). I am arrested, released, and provide the court with a copy of my card showing I was legal at the time of the stop.

 

My read of this is that as I had only 1 oz, well within my limits, and I was not medicating in the car, the charges must be dismissed because the prosecutor has no evidence I was not engaged in medical use. I may have to have a hearing first to give the prosecutor a chance to make a case I wasn't engaged in medical use, but the only way I can possibly think he could try was to question the bona fide relationship in my cert.

 

If on the other hand I had 3 oz on me, I would be arrested, and since I exceeded the limits I'd have to mount a full section 8 defense to prove I needed that much for medical use under the Act.

 

Dr. Bob

 

PS, I don't see anything in either situation.

Edited June 28, 2012 by Dr. Bob

[GregS]

Are not defendants required to only bear proof, and prosecutors required only to rebut?

 

I undeerstand that the burden of proof is always on the defendant.,

[bobandtorey]

section 8 defense ? no one that i have heard of has been able to use Sec 8 as of yet i was at a case yesterday and he was told he could not use or say medical marihuana

in court still

[knucklehead bob]

What does this Judge know of the S C decision on Kolanek & KIng ?

[+Malamute]

Are not defendants required to only bear proof, and prosecutors required only to rebut?

 

I undeerstand that the burden of proof is always on the defendant.,

 

Dyslexia?

[Dr. Bob]

Dyslexia?

 

Don't feed in to this joker.

[GregS]

But the card carries with it the presumption that the bearer is engaged in medical use. I hope that they are not saying the presumption is gone completely if they do not bear the card at the time of arrest. I do not think that was the intent.

 

The court appears to be trying to set up complications that are intended to confound the defense. It is a ruling that would probably best, for purposes of legitimacy, be appealed, but has a potentially easier out using a section 8 defense on remand. Your observation that section 4 provides protections that the court has now ruled to be illegitimate provisions that are a necessary part of the law is not without merit. It might be best to appeal and to expect that if the case were lost, that it would likewise be remanded, leaving the defendant to bring a section 8 defense. He has no more section 4 protection because the COA ruled that hands on possession is a section 4 requirement, and to take this decision as written is to concede that.

 

I have earlier said that I did not think this a bad ruling, and have come around on it, having more closely seen its implications.

Edited June 28, 2012 by GregS

[GregS]

I have to consider that Dbob is working hard to put a stop to vigorous debate. He admits he does not debate, and interjects unfounded hyperbole and impermissible personal attacks rather than measured commentary. It could be that he too is trying to diminish the communities' involvement in the issues by shouting down anyone and everyone who suggests that there is a perspective he does not share. There are a lot of people in the state who will do just about anything to remove our opposition to their intention to screw us, and putting their people on the inside of opposition groups like this cannot be discounted.

[GregS]

Dyslexia?

 

Typo.