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edit: oops, i'm wrong. pb is right.

 

the 'must raise the sec 8 defense at a pretrial motion' is in the appendix of the king ruling.

 

Accordingly, the Court of Appeals erred by permitting Kolanek a “‘second bite at the

apple’” by allowing him to present his defense to the jury despite its conclusion that he

failed to present sufficient evidence that his use of marijuana was for medical purposes

under § 8. We therefore reverse this portion of the Court of Appeals’ judgment.

 

this is bad. if the judge rules that you dont have sufficient evidence to support your MEDICAL use of marijuana, you wont be able to instruct the jury at all.

 

If a circuit court denies a defendant’s motion to dismiss under § 8 and there are no material

questions of fact, then the defendant may not reassert the defense at trial; rather, the

appropriate remedy is to apply for interlocutory leave to appeal.

 

yep, sec 8 affirm defense is 'all or nothing'.

so the supreme court says if you get a bad judge you can appeal.

Edited by teethpain
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Anything PRE-TRIAL is your best bet (imo), unless you have a mean ole marijuana hating Judge.. then let the lawyer do all the work, well let him/her do it all anyways but from my own experince your Prelim, defense is your best chance at any leway for or against MM case or anyother for that matter.. If you wave your rights to it, your going to circuit court and passed on the chance to have it heard before you get to big boy court.. thats where the $$$ start's racking up.. I think thats why the PA says "hey you have a better shot there" liars, big fat liars in my own personal veiw of it.

 

I'm not sure if it was cause I fired my lawyer that the Judge re heard my case, I can tell you after I hired Michael K The Judge faught him, on why we didn't want to present our case in front of him, and the Judge (David Viviano,Macomb) was NOT going to let it back to City Court for it to be re heard again.. He wanted control and a conviction...Just saying in my eyes This is your chance to win right now in the lowest court, City Court. I'm not a lawyer just been there done that, watched it happen, changed my pants after it happenned ..

 

I'm not sure on all the legal quotes on what stage and sections are for what, I can look but most of these guys know what their talking about, I was on the bench watching the game the whole time so I'm just a PT with a story is all.

 

Trix

:bong2:

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pb: you misread it. the msc opinion doesnt require a 'preliminary hearing' but a 'motion to dismiss' followed by an 'evidentiary hearing' (to validate the motion).

 

the opinion just says motion to dismiss. and you can motion at any time (i'm pretty sure but am no lawyer).

 

 

of course, doing a pre-trial motion to dismiss is the best idea.

 

THIS is what the SC said

 

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.

 

Here is where the opinion is located:

http://publicdocs.co..._Kolanek-OP.pdf

 

I am POSITIVE some courts will apply this as the motion MUST be filed pre trial. If you wait until during the trial, they WILL disallow it based on that section of the ruling.

 

I was upset by this as the law says "may." Here it has been changed to "must." That may be fixed later. I hope so. Meanwhile, until another case goes before the Supreme Court, it is "must." So if Joel wants to avoid a fight all the way to the SC, do it pre trial.

 

That said, I am NOT a lawyer. This is just what I believe.

 

I have directly asked CL if he is a lawyer. He, or she, has never answered that question. Not that I'm aware of.

 

WAY to many people saying to relax and let it slide until later. Following that advice could result in not being able to present the defense.

Edited by peanutbutter
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So, again, I ask, where did you come up with that? No where is it written that you need to bring a section 8 defense at prelim. No where. You are making that up. There is no reason why a person cannot bring a sec 8 defense, for the first time, in circuit court.

 

Dodging the lawyer question again, I see.

 

I quoted what the SC said and provided a link to the ruling.

 

Again .. what they said:

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.

 

And the link:

 

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20120531_S142695_55_Kolanek-OP.pdf

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Dodging the lawyer question again, I see.

 

I quoted what the SC said and provided a link to the ruling.

 

Again .. what they said:

 

 

And the link:

 

http://publicdocs.co..._Kolanek-OP.pdf

Dodging a question? What does that question have to do with the price of tea in China? It isn't relevant. I'm asking why you are giving bad advice. My situation has nothing to do with that.

 

And, AGAIN, I ask, where are you coming up with your original statement? Quoting the supreme court isn't answering the question. You said the S Ct said that a sec 8 defense must be brought up at prelim or be lost. WHERE ARE YOU GETTING THAT?

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Umm .. I just posted it.

So basically you are saying that the car is black and you are proving that by showing me a white car and then just saying that it is black.

 

You said a sec 8 defense is lost unless it is first brought at prelim. Posting OTHER things about a section 8 defense does not back up your statement. What the H-E-double toothpicks are you talking about?

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So basically you are saying that the car is black and you are proving that by showing me a white car and then just saying that it is black.

 

You said a sec 8 defense is lost unless it is first brought at prelim. Posting OTHER things about a section 8 defense does not back up your statement. What the H-E-double toothpicks are you talking about?

 

Here is the section in the ruling:

 

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.

 

I quoted that section and provided the link that it came from.

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Other items of interest in that ruling:

 

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

defense under § 8.

 

And this list of distinct items required to have a case dismissed under section 8:

 

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.

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Yes, still alive and kicking.

 

As I stated before, I do not trust the lawyer I was assigned. I may indeed have to fire him if he does not file a motion to dismiss at the prelim, but I want to be ready in case the judge denies the request. I don't trust her much either.

 

I would like to have in my possession a motion to dismiss I can draw up myself.

 

Anyone know where I can get a copy of an existing one where I can plug in my particulars? I have been looking online but so far no joy.

 

I thank you all for your efforts as well. I don't know if I would still be breathing were it not for all of you. Thanks!

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I think I can add in the details myself. I would certainly show it to the lawyer before I (or he) presents it.

 

Also, I plan on asking the judge's clerk just how the judge likes her motions filed. This was suggested on one of the law websites.

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It's weird. The lawyer dismissed me as if I were the villiage idiot, yet claims to be on my side. He knows nothing about defending a MM case, yet had just about no questions for me.

 

Also, he escaped before I could get copies of the discovery, which I really wanted, badly. He also made it clear that I was not to contact him at all. I would see him next at the prelim.

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wow wow wow... what a tool, sounds to me like you should maybe retain a cheapo lawyer just to get rid of the court appointed lawyer.

 

I hate that man, my first lawyer was the same way hush lemme do my job, he sucked at his job. js cost me a cpl grand to find that out, but he was cutting deals in the back, and coming out telling me no way I'll get off any of this, and still insisted he was right and I was wrong and take the plea.. uggh sucks man..once the system gets a hold of you they milk you till your dry and start messing with your head and having them crazy life changing thoughts, $$$ is the root of all evil imo..

 

Trix

:bong2:

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Was back in court today, and it was very upsetting.

 

While waiting for my court appointed attorney, I listened to the judge chastise a youg man over his smoking marijuana.

 

It was like listening to Ronald Reagan. Adicting, kills brain cells, causes lung cancer, etc. I couldn't help shaking my head. I was going in front of that judge?

 

Then my attorney arrived. He was treating me like a child. A very bad child. One who dared use marijuana. This guy was suppose to represent me?

 

I asked him whose side he was on. Oh, "I'm on your side.". He got very mad when I told him I thought the prosecutor was misinterpreting the law. "It means whatever they say it means."

 

When I asked him when we are going to get together to discuss strategy, he said we weren't. He was the lawyer, not me.

 

I think I am going to prison.

 

He asked me for the names of my patients and got very upset when I told him I had to keep that information confidential.

 

Sorry, but the judge doesn't seem any better. She is running for MSC and doesn't have my vote. Well, maybe if she dismisses the charges without prejudice.

 

I kinda know the format for a motion to dismiss, but want to see one designed for the section 8 (how do you make that symbol?).

 

Starting to feel somewhat better thanks to the cardiac rehab. Wish I could take my meds for the nausea though. Bummer.

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hah, the site we're on has _some_ info and forms for you to fill out:

 

http://michiganmedic...dls/legal-forms

 

at least these two are starters:

The Patients Affidavit in Support of Motion form is for patients to complete. It is your affidavit that you are using the Affirmative Defense and requesting that the case against you be dismissed.

 

This is a sample of a real motion to dismiss document. You may download and use this Model Affirmative Defense and Motion to Dismiss and use it if you choose to represent yourself in a court of law.

 

 

needs some updates tho... :)

Edited by teethpain
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