Does An Expired Card Provide Section 4 Protections?

[Wild Bill]

Is there one or more main offices that are doctors offices, not just administrative headquarters.

Does the doctor do other things (not necessary but helpful), other kinds of medicine other than just certifications.

Does the doctor have a clear records on the state medical board license look up

Is the NAME of the doctor listed in the advertisements

Do you actually meet with the doctor, and do they require records of everyone

Is the doctor running the clinic, or are the money people running it

 

You might also ask yourself if you would trust the doctor perform a serious medical procedure on you.

 

Would you take your child to him for care?

[Restorium2]

You might also ask yourself if you would trust the doctor perform a serious medical procedure on you.

 

Would you take your child to him for care?

I think that's going a little too far. The line is whether they can make your case in court. I'm not having my cannabis specialist doing any serious medical procedures on me or having him see children in my family. I might someday, but that's not part of his qualifications to do my recs. We need good doctors who can successfully stand up in court for recommending cannabis.

[thecannabiskid]

The line is whether they can make your case in court.

I think thats pretty much all that matters for a patient. I think the problem is most patients do not realize their Doc. patient relationship can be challenged in court. They think if they have their card its legal, and dont realize the MMMA is being attacked from all angles by the courts.

[Dr. Bob]

Certifications through the mail will not withstand the challenge. That should be common sense. Had a bunch of patients show up to my clinic this weekend in the UP after being solicited for 'through the mail certifications'...

 

They thought it was fishy, especially in light of the new bills taking effect on 4-1-13. They are right. That was always a very marginal practice WHEN they could get away with it. After April it will be illegal. Don't fall for it.

 

Dr. Bob

[lawyercaregiver]

Certifications through the mail will not withstand the challenge. That should be common sense. Had a bunch of patients show up to my clinic this weekend in the UP after being solicited for 'through the mail certifications'...

 

They thought it was fishy, especially in light of the new bills taking effect on 4-1-13. They are right. That was always a very marginal practice WHEN they could get away with it. After April it will be illegal. Don't fall for it.

 

Dr. Bob

 

What if you had a legitimate 1st year visit and get 2nd and 3rd year mail e-mail certifications with updated records?

 

Also, Back To Topic: Although PB's original question was answered- Expired cards are NOT going to provide Section 4 protections- what about "otherwise invalid" cards. I think Dr. Bob is suggesting that if your card is invalidated because your Doctor was a fraudulent bum then you also do not have Section 4 protections.

 

What say we all on what happens to an "INVALID" card on Section 4 protections? Are you then left just with our friendly Section 8 Affirmative Defenses? What if it was no fault of the patient? Can law enforcement just seize the fraudulent doctor's records and then round up all his patients for having an "invalid" card?

[CaveatLector]

What say we all on what happens to an "INVALID" card on Section 4 protections? Are you then left just with our friendly Section 8 Affirmative Defenses? What if it was no fault of the patient? Can law enforcement just seize the fraudulent doctor's records and then round up all his patients for having an "invalid" card?

 

Mistake of fact can be a defense to a crime even when you have committed the physical acts that make up the elements of the crime. In a case like this it is highly unlikely that you could be prosecuted. There would be no intent (mens rea) to commit the crime without expecting the immunities affored by the card. So my opinion is that if you are issued a card then it is valid unless and until you actually know that it has been invalidated due to a defect in the process.

Edited January 30, 2013 by CaveatLector

[peanutbutter]

Also, Back To Topic: Although PB's original question was answered- Expired cards are NOT going to provide Section 4 protections- what about "otherwise invalid" cards. I think Dr. Bob is suggesting that if your card is invalidated because your Doctor was a fraudulent bum then you also do not have Section 4 protections.

 

Michael Komorn might disagree with that.

 

He contends that the card, by virtue of being issued by the states, validates the doctors letter. That once the state has done their checking and issued a card, there should be no question left about the validity of the doctors letter.

 

There is no provision in the law for the card to be voided simply because they didn't do their job.

 

They have 15 days to get it right. After that, it is locked in with the exceptions of very limited very specific reasons. And "OOPS" isn't one of them.

[peanutbutter]

They can void a card for fraud.

 

A card is voided if someone is selling to a non patient/caregiver.

 

Other than that, the card is SUPPOSED to remain valid. Zero exceptions to that. Not in the law.

 

No exceptions for a court order, probation, parole .. NOTHING else. Not in the law.

[CaveatLector]

A card can be voided for fraud OR mistake. If there is a clerical error that allows a card to issue for a pt whom should not otherwise be approved then the card will be no good. The rules have to be followed for a card to be good.

 

As for probation or parole the card may be irrelevant. If a judge orders you not to use, but you use anyway, then you have violated prob/parole regardless of whether you had a card. The card may protect you from new criminal charges in that situation but it WILL NOT protect you from a probation or parole violation.

[CaveatLector]

I do know the reality of this situation, and don't wish to start an argument, but how is it that a judge can get away with penalizing a person for medical use in accordance with the Act, when 4(a) and 4(b) say they can't?

 

The constitution guarantees us all sorts of rights. However, those can be curtailed while on probation/parole. One that comes to mind is the right to travel. That is a constitutionally protected right but can be limited while on prob/parole.

 

 

Probation and parole are alternatives to jail/prison. Generally a judge can limit a probationer/parolee's rights significantly. 4a and 4b tell us that you cannot be penalized for the medical use. Limiting use while on probation/parole isn't a penalty it is a condition.

 

Similarly, disallowing travel isn't a penalty it is a condition. Conditions are designed to, in part, rehabilitate a person. If you violate a condition, and thus probation/parole, then you can be thrown back in jail/prison. That isn't a penalty for the activity you engaged in, rather it is a revocation of the privilege of probation/parole. Violating means you can go back to prison but NOT for MORE time that you would be there for the underlying crime. So you aren't being penalized for violating you are having probation/parole revoked. In other words a privilege suspended. If I say I'll give you a cookie for every day you shower and then one day you don't shower so I don't give you a cookie, that isn't a penalty that is me just withholding the cookie privilege.

[peanutbutter]

That isn't a penalty for the activity you engaged in, rather it is a revocation of the privilege of probation/parole.

 

Shall not be denied any right or privilege for the medical use of marihuana in accordance with this act.

[CaveatLector]

Shall not be denied any right or privilege for the medical use of marihuana in accordance with this act.

You're equivocating on the word "privilege." Maybe it is my fault though. I was using the word colloquially. Probation isn't really a privilege in the eyes of the law. A privilege is something granted upon fulfillment of a condition. You can get an operator's license if you fulfill the conditions. If you fulfill the conditions then you SHALL be given the license. There is no discretion involved.

 

You cannot get probation on fulfillment of a condition. It isn't a "shall issue" sort of "right." Probation is purely at the discretion of the judge. Therefore it isn't a privilege. It is purely discretionary. So, call it a benefit as a result of not being a threat to society. I think the law actually calls it a "matter of grace." The court has HUGE and WIDE discretion when it comes to revoking probation. A probation violation hearing doesn't even require a formal hearing, use of the rules of evidence, or proof beyond a reasonable doubt.

[peanutbutter]

Probation is purely at the discretion of the judge.

 

I believe it is possible for a law to be passed which would limit that.

[Dr. Bob]

Mistake of fact can be a defense to a crime even when you have committed the physical acts that make up the elements of the crime. In a case like this it is highly unlikely that you could be prosecuted. There would be no intent (mens rea) to commit the crime without expecting the immunities affored by the card. So my opinion is that if you are issued a card then it is valid unless and until you actually know that it has been invalidated due to a defect in the process.

 

You are the expert on this, but let me ask this.

 

Currently the deal is on Section 8 defenses that they try and attack the bona fide dr/pt relationship. If they can show a problem with the certification, and a cert through the mail with no doctor visit is a BIG problem, the prosecution can penetrate the Section 8 defense. I do agree with you that in a Section 4 immunity case, the card is the final word on the relationship.

 

One other interesting point. Recently a case was heard in Lansing were people would go in, drop off an application, give money or agree to sign up with a particular caregiver, and get a certification a couple of weeks later from a doctor they never saw, had contact with, or gave any records to.

 

In this case I would think that no prudent person that had ever been to a doctor would believe this to be a relationship with that doctor, much less a bona fide one. Do you think that this might have any bearing on a section 4 immunity case? Or a section 8 defense?

 

Dr. Bob

Edited January 30, 2013 by Dr. Bob

[CaveatLector]

,

 

In this case I would think that no prudent person that had ever been to a doctor would believe this to be a relationship with that doctor, much less a bona fide one. Do you think that this might have any bearing on a section 4 immunity case? Or a section 8 defense?

 

Dr. Bob

Absolutely. The bona fide dr/pt relationship is not something formed by the doc alone. The pt has a duty to divulge necessary info to a doc and to act as a reasonable person. If you reasonably should know that a mail order cert. is no good then how could you hold up your end of the relationship such that it becomes a bona fide relationship? You cannot. Similarly, if you lie to a doc or provide fraudulent records and are not really qualified for a card that isn't on the doc. and does not create criminal liability for the doc under 4f. It's a 2 way street. If a pt gets a presigned cert. or gets a cert. with no visit they definitely have the requisite intent in regard to using while knowingly holding an invalid card.

 

Furthermore, should you ever need to rely on sec.8 you need to be sure you meet the heightened scrutiny. There is something to be said for developing standards designed to defeat a prosecutor's volley of different act-based attacks on you and/or your card or qualifications.

[CaveatLector]

I believe it is possible for a law to be passed which would limit that.

Possible? Of course. Does the MMA? Not likely. Maybe someday someone will challenge that and walk it through the court system. They would be highly unlikely to win in my opinion.

[peanutbutter]

Possible? Of course. Does the MMA? Not likely. Maybe someday someone will challenge that and walk it through the court system. They would be highly unlikely to win in my opinion.

 

The law was constructed to protect patients from the system.

 

It does so by placing limits on what the system is allowed to do, provided the patient is within limits.

 

It restricts police, prosecutors and judges.

 

Example: "shall be dismissed" is a direct order to judges.

Edited January 31, 2013 by peanutbutter

[CaveatLector]

The law was constructed to protect patients from the system.

 

It does so by placing limits on what the system is allowed to do, provided the patient is within limits.

 

It restricts police, prosecutors and judges.

 

Example: "shall be dismissed" is a direct order to judges.

Ohhhhhhh, well now that you explain that I guess all of that supersedes everything else.

[peanutbutter]

Ohhhhhhh, well now that you explain that I guess all of that supersedes everything else.

 

The problem is getting judges to agree that they have been constrained.

[CaveatLector]

The problem is getting judges to agree that they have been constrained.

I don't believe they have. I know you really, really want to believe they have. Is it possible that the issue could go to the supremes and they come down with such an interpretation? Yes. But that just is not likely at all. The law gives huge breadth of discretion to a judge in regard to prob/parole. It isn't likely that prob/parole will be found as a legal privilege such that the MMA can dictate whether a probationer/parolee can use. And for the MMA to restrict a judge's discretion the status (prob/par) would need to be found a "privilege."

Edited January 31, 2013 by CaveatLector

[Dr. Bob]

Absolutely. The bona fide dr/pt relationship is not something formed by the doc alone. The pt has a duty to divulge necessary info to a doc and to act as a reasonable person. If you reasonably should know that a mail order cert. is no good then how could you hold up your end of the relationship such that it becomes a bona fide relationship? You cannot. Similarly, if you lie to a doc or provide fraudulent records and are not really qualified for a card that isn't on the doc. and does not create criminal liability for the doc under 4f. It's a 2 way street. If a pt gets a presigned cert. or gets a cert. with no visit they definitely have the requisite intent in regard to using while knowingly holding an invalid card.

 

Furthermore, should you ever need to rely on sec.8 you need to be sure you meet the heightened scrutiny. There is something to be said for developing standards designed to defeat a prosecutor's volley of different act-based attacks on you and/or your card or qualifications.

 

This is an important post for folks to review if they are considering getting a cert or renewal through the mail.

 

Dr. Bob

[peanutbutter]

The law gives huge breadth of discretion to a judge in regard to prob/parole.

 

And the MMMA provides exceptions to existing law.

 

Why would the MMMA only provide exceptions to a single specific law, the PHC? Is that stated in the MMMA? No .. instead the MMMA claims to trump ANY other law.

Edited January 31, 2013 by peanutbutter

[CaveatLector]

And the MMMA provides exceptions to existing law.

 

Why would the MMMA only provide exceptions to a single specific law, the PHC? Is that stated in the MMMA? No .. instead the MMMA claims to trump ANY other law.

If the "other" law is inconsistent with the MMA. That is the key component. You are arguing that a judge's discretion in regard to probation is inconsistent with the MMA if she orders no use. As already explained, you aren't very likely to win on that argument as the probation law is not inconsistent. You can argue that probation is a privilege but you won't get anywhere.

 

Using your same logic everyone and anyone in the US should be allowed to own arms. Why? Because the US Const. trumps anything else, right? Read the 2nd Am.:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

So using your logic it is illegal for the gov. to infringe on anyone's right to bear arms. Even convicted felons. Even people in prison or schools or anywhere. Right? Well, that may have been true at one point but the Supremes have interpreted the const. to allow the gov. to infringe on your right to bear arms in many instances. Right?

 

Same thing here. The only way to support your conclusion is to assume that probation is a right or privilege. Isn't going to happen because it isn't a right or privilege. Could one argue that it is? Yes indeed. Would that get anywhere? Not unless we have an ultra-liberal supreme court. Good luck on that one.

 

Parenthetically, I just sat in a courtroom this morning in Flint. Judge Goggins of the 67th District court was hearing a prob. violation for marijuana use. The defendant had a card. The defendant's attorney asked the judge to allow use. The judge said he does NOT allow use while on probation regardless of the card. He was adamant. The judge extended his probation for 6 months beyond the original May conclusion and gave the defendant 30 days to test clean. Goggins, in my experience, is generally pretty liberal and friendly. He is the type of judge that a defendant would rather appear before if the defendant were unrepresented. But he took a hard line position on this. This story is neither here nor there and proves nothing. Just an anecdote from my day.

[t-pain]

supreme court ruled (or oral arguments?) you cannot add words to the act.

a card is a card, valid or expired.

just like a drs rec, it does not expire for the purposes of section 8. likewise a drs rec shall have the same power as a card if lara fails to issue cards in a timely manner. so with this we've established that dr recs dont expire (except in lara rules).

 

but the supreme court also ruled you cannot null a part of the act. (no i dont remember what opinion this is in, maybe oral arguments?)

 

so does an expired card work for section 4 mean that renewals are null?

if not, why not? 

because you have to update your address? your patient /cg status? your bona-fied relationship? prove you still have a condition?

 

the renewal thing isnt part of sec4 protections. and any sections invalid in the act do not nullify other sections of the act (sec 10 says this)

 

at any rate, patients and caregivers dont get that 'fair' blind justice from judges so i dont think this argument will win in court.

Edited June 18, 2014 by t-pain

[bobandtorey]

Thanks again T-pain for asking the hard Questions you keep asking Proving you still are sick is where things go down hill inside a Court room because when the Doc does come to testify

 

they threaten to lock him up thats how it went for us