Evidence From The Statute For Dispenaries: Patients Can Obtain Marijuana From A Secondary Caregiver

[Highlander]

Well was I the first or not? And how could I have posted my comment any quicker coming seconds after Dr. Bob posted the opinion?

 

The opinion states you cannot make the transfer from Patient to Patient or at least you are subject to injunction in a civil case. Bring criminal charges and you add the Section 8 defense which was not considered. Argue it is a Caregiver to Patient rather than Patient to Patient, which was also not considered, and you have an entirely new case.

 

Back to square 1.

 

Keep growing every day people. The race is not to the weak nor the battle to the strong. Surely an angel resides in this whirlwind and directs this storm?

 

You have to read the entire document:

 

To be eligible for § 4 immunity, a registered primary caregiver must be

engaging in marijuana-related conduct for the purpose of alleviating the debilitating

medical condition, or symptoms associated with the debilitating medical condition, of a

registered qualifying patient to whom the caregiver is connected through the registration

process of the Michigan Department of Community Health (MDCH)

[CaveatLector]

How can I say this without sounding too offensive or demeaning? I don't think I can. Take this in the spirit in which it is intended. It isn't meant to be offensive, just factual.

 

Lawyercaregiver, your arguments are so full of holes in this thread. It is hard for me to imagine that you held or hold a bar card. Seriously, your grammatical interpretations aside, your statutory interpretation skills are gravely lacking. In order to address everything specifically I would have to write several pages of text/treatise. I shall forego that endeavor. At least for now. In the meantime I think you would improve your interpretation skills if you asked peanut for advice.

[peanutbutter]

so then

 

how does this change criminal suit with transfers according to green?

 

does this cross over to be binding in a criminal court?

 

are transfers without consideration still ok?

 

WOW in a criminal matter ..

 

Money is no longer any issue at all.

 

transfers with or without money are still transfers.

 

So the bad part of Green got slapped down.

 

This might work out pretty good ..

[peanutbutter]

THANKS DOCTOR BOB. Let me be the first to read and comment on this: This decision bars patient to patient transfers, upholding the appeals court on other grounds. THIS DECISION SAYS NOTHING ABOUT CAREGIVER TO PATIENT TRANSFERS under Section 4e and nothing about the Section 8 Affirmative Defense.

 

Ahh,, but it does in this respect:

 

Don't matter if it's a gift or sale .. they are both transfers.

[GregS]

How can I say this without sounding too offensive or demeaning? I don't think I can. Take this in the spirit in which it is intended. It isn't meant to be offensive, just factual.

 

Lawyercaregiver, your arguments are so full of holes in this thread. It is hard for me to imagine that you held or hold a bar card. Seriously, your grammatical interpretations aside, your statutory interpretation skills are gravely lacking. In order to address everything specifically I would have to write several pages of text/treatise. I shall forego that endeavor. At least for now. In the meantime I think you would improve your interpretation skills if you asked peanut for advice.

 

Funny that.

[CaveatLector]

Just in case you missed the obvious and plain meaning, they added in the next part: "And such transaction shall not be considered the sale of a controlled substance." This is what dispensaries do- not play lockbox games in bank vaults. They engage in transactions THAT ARE NOT TO BE CONSIDERED THE SALE OF A CONTROLLED SUBSTANCE. Is that clear enough for you?

I'm sure you are an astute gentleman and law scholar. For that reason I think you will pay attention for a minute instead of trying to push your assertions with pure brute force. Let's reason this through. I do not, at the moment, have time to address every single assertion you have made. So let's start with one. In fact, the one above. Before I address the comment let us set parameters so we are not equivocating. I am assuming that your argument is that a sale of marijuana is, by operation of law, NOT to be considered a sale? That seems to be the claim anyway. If it isn't then please feel free to correct me and ignore the discussion hereinafter.

 

The relevant portion of the statute states:

 

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

 

Your claim is that an exchange of marijuana for money is NOT a sale, given the provision above. As this may well be a very moot point given the MSC McQueen decision I will, nonetheless, take the opportunity to explain why your reasoning fails. The important part of the language, that I think you are just dismissing, is, "sale of a controlled substance." Since you are well aware of the rules of statutory construction and interpretation I will forego explaining them to you. Rather, I will explain where you go wrong. You completely ignore the words, "of a controlled substance." As you know, words within a statute cannot be considered surplusage. With that in mind you are treating them as surplusage. If the provision were meant to mean what you claim then it could have conveyed the meaning without, "of a controlled substance." In fact, it would have conveyed the meaning much more clearly by eliminating those words altogether. But, alas, the words are there. So let's read it while employing proper English grammar. "Of a controlled substance," is a prepositional phrase. That means it modifies the preceding noun. The preceding noun is, "sale." For that reason the meaning of the sentence is not simply that compensation shouldn't be considered a sale. The meaning is that it can't be considered a sale of a controlled substance. So, it IS a sale, just NOT a sale of a CONTROLLED SUBSTANCE. Very likely the reason behind including that provision was to prevent problems associated with SELLING a controlled substance as far as agency rules are concerned. Of course, the reason is my guess. I don't know the actual intent. But the grammar is clear. 4e does not tell us that compensation is not a sale. In fact, it is, by definition a sale. But, as a matter of law, in this context. it is NOT a sale of a controlled substance.

 

I will assume you now understand the difference.

[mibrains]

so then

 

how does this change criminal suit with transfers according to green?

 

does this cross over to be binding in a criminal court?

 

are transfers without consideration still ok?

 

ok so i found the answer to this one....

 

59 Our interpretation of § 4(d) does not turn on the fact that the patient-to-patient transfers

occurred for a price. Rather, § 4(d) acts as a limitation on what sort of “medical use” is

allowed under the MMMA. The same limitation that prohibits a patient from selling

marijuana to another patient also prohibits him from undertaking any transfers to another

patient.

[+Malamute]

i suppose i should clarify..

 

i honestly think a family member could prevail in the above described scenario of delivering for grandma...eventually in court... they could claim a section 8 defense and after years and years probably make it through and win. it is reasonable.

 

but why would a person want to do that? and why not be safer from the get go?

 

Ding Ding Ding!!! We have a winner!

[+Malamute]

You guys are not really getting what I am saying. This is a situation where the person is acting in desperation to help a family member who is ill (not a delivery service), and they should not have to go through years and years of court proceeding to ultimately avoid penalty. If an unregistered caregiver defense is really just an invitation to abuse by the court, then the court's interpretation of the law has arrived at an illogical conclusion.

 

Doesnt matter zap.

 

This law was written VERY restrictively. Go yell at MPP and Karen O'Keefe and Dykema Gossett for taking such a conservative approach to our law and sticking us with such crappy guidelines. :-)

 

It is what it is.

 

So,... lets train better caregivers and help get proper caregivers with patients that need their specific options met so this situation is unneeded.

[+Malamute]

You guys are not really getting what I am saying. This is a situation where the person is acting in desperation to help a family member who is ill (not a delivery service), and they should not have to go through years and years of court proceeding to ultimately avoid penalty. If an unregistered caregiver defense is really just an invitation to abuse by the court, then the court's interpretation of the law has arrived at an illogical conclusion.

 

Also,... illogical conclusion means they can remove the unreg cg from the law.

 

Barking up the wrong tree.

[+Malamute]

Section 8 is not meant to be ..... used? kinda. It is meant to help out dumarses and be a safety valve to protect a FEW dumarses who are either unwilling or unable to be registered properly or abide by the restrictions of Sec 4.. It isnt really meant to be the be all of the law. It is a safety net filled with holes.

Edited February 8, 2013 by Malamute

[peanutbutter]

In the meantime I think you would improve your interpretation skills if you asked peanut for advice.

 

I'll be laughing for a while .. should I quote that in my sig?

[roadworkahead]

bottom line is Will patients suffer from the potential closings? IMHO absolutely not! There are many great CG's now and soon there will be more to come.

[MrShpongle]

bottom line is Will patients suffer from the potential closings? IMHO absolutely not! There are many great CG's now and soon there will be more to come.

 

I disagree. Many caregivers will give up. What if you've got 5 patients who don't consume much but expect a variety of strains at low prices? Some people can't justify a full-blown grow if their patients are only using less than an ounce per month. And there's no way to grow multiple strains without creating overages in that situation. I am compassionate as hell, but compassion doesn't pay DTE or my grow shop (;let's not even get into the issue of time).

 

At the end of the day, the real beneficiaries will be the folks who are willing to operate outside the boundaries of the law, and that doesn't include me. The guy who buys and sells Mexican brick weed, or low-potency, Avid-contaminated hydro from who-knows-where, will be back on the street slinging crap just like always.

[+Malamute]

Um... if patients are only using an ounce a month... you don't need a full blown grow.... Ya need a few plants consisting of a few strains and grow the plants small.

 

Heh...

 

That was silly.

 

I am not sure i understand the problem?

 

You can grow UP TO.... up to 12 plants per patient or wtvr meets their needs under that amount.

 

:-)

[+Malamute]

 

At the end of the day, the real beneficiaries will be the folks who are willing to operate outside the boundaries of the law, and that doesn't include me. The guy who buys and sells Mexican brick weed, or low-potency, Avid-contaminated hydro from who-knows-where, will be back on the street slinging crap just like always.

 

And that is exactly where they should be... not with patients in the system.

 

And avid infested from who knows where is exactly what most the dispensaries i seen were selling.

 

*shrug*

[Celliach]

THANKS DOCTOR BOB. Let me be the first to read and comment on this: This decision bars patient to patient transfers, upholding the appeals court on other grounds. THIS DECISION SAYS NOTHING ABOUT CAREGIVER TO PATIENT TRANSFERS under Section 4e and nothing about the Section 8 Affirmative Defense.

 

So you think we should just ignore the intent of the ruling and all open dispensaries with a CG behind the counter? I'm sure LEO and the courts would love that!

 

If we spent as much time and energy making the system work as it is, then we wouldn't be talking about how to get around it in the first place because there wouldn't be a need to get around it.

[HEMP4LIFE]

Anyone could run a dispensary out of a bank vault. Security provided.

But every person who gets meds like this is in violation of the law because they didn't get the meds their cg because they don't have one. maybe if you do have a cg the court would have to prove your cg did not deposit the meds you have possession of. maybe im wrong im not up to date on the new ruling.

[HEMP4LIFE]

But every person who gets meds like this is in violation of the law because they didn't get the meds their cg because they don't have one. maybe if you do have a cg the court would have to prove your cg did not deposit the meds you have possession of. maybe im wrong im not up to date on the new ruling.

please reply on this im trying to get back up to speed on new law

[Celliach]

But every person who gets meds like this is in violation of the law because they didn't get the meds their cg because they don't have one. maybe if you do have a cg the court would have to prove your cg did not deposit the meds you have possession of. maybe im wrong im not up to date on the new ruling.

 

The PT acquiring the MMJ is legal, the person transferring it to him/her is not.

[GregS]

please reply on this im trying to get back up to speed on new law

 

My remark was intended tongue in cheek. This is an instance of humor not translating well in print.

 

You are correct in that only patients who are connected through registry to a given caregiver can acquire from that cg. Also to be considered is that access to bank safety deposit boxes requires specific, current, and documented permission. Working out of a bank vault would not be terribly efficient, but would be an acceptable means to xfer from duly registered and connected people. But why? Bank safe deposit boxes start at about 45 bucks a year.

 

But...

Edited February 16, 2013 by GregS

[bobandtorey]

 

 

actually bob the opposite is true..

this gives every township the power to close a dispensary based on civil case of public nuisance.

any criminal prosecution still has to be tested and run through the courts.

 

I agree the AD will end up at the SC their has not been one some think Larry was their for Sec 8 but it was not it was for Sec 4 then it went back down for a sec 8 hearing so far none has been to the SC under sec 8 yet I think our case will again go up

Because our case is the Simplest of Protections that the voters voted for a cancer Patient Torey

 

[maxmax]

In reading our law I ran across yet another argument for dispensaries which hinges on the question:

 

Do patients HAVE to get their marijuana ONLY from the primary caregiver registered to them through the system?

 

The plain meaning of the law says; NO!

 

Consider the case of patients under age 18. The relevant portion of the statute is below. The summary is that the PARENT of a minor must agree to be the minor's primary caregiver!!!

 

Think about the logistics for a minute. A parent of an 8 year old boy with cancer, or brain seizures, or M.S. gets the certifications for their child.

 

THEN, if we follow Bill bad's interpretation of the law the parents ALSO have to be master growers! They will have to take the time to propagate, grow, and harvest for their sick child. Between chemotherapy visits, no doubt.

 

This interpretation on the effect of the Act is ridiculous. A law is interpreted to avoid an absurd result. Therefore, this section PLAINLY AND CLEARLY states that a parent- who is the primary caregiver for their child- will ALSO be able to obtain marijuana from other unspecified sources. That is, a SECONDARY CAREGIVER.

 

We might make the same argument with all patients but the AG will argue back that all patients have the right to CHOOSE their caregiver. Guess what Billy Bob? Minors under the Act cannot CHOOSE their Caregiver. The minors parent has to be the Caregiver.

 

Therefore, Bill bad's interpretation creates TWO types of patients. Adults who can grow their own or choose their own Caregiver/Grower AND Children who CANNOT CHOOSE their own Caregiver. This is clearly an absurd result and raises a LOT of Constitutional questions like Equal Protection etc.

 

Therefore, the ONLY reasonable interpretation is that the Act envisioned SECONDARY CAREGIVERS! If they want to provide a dispensary regulation system then bring it on . If not GFY.

 

 

 

33.26426 Administration and enforcement of rules by department.

 

 

(b) The department shall not issue a registry identification card to a qualifying patient who is under the age of 18 unless:

(1) The qualifying patient's physician has explained the potential risks and benefits of the medical use of marihuana to the qualifying patient and to his or her parent or legal guardian;

(2) The qualifying patient's parent or legal guardian submits a written certification from 2 physicians; and

(3) The qualifying patient's parent or legal guardian consents in writing to:

(A) Allow the qualifying patient's medical use of marihuana;

(B) Serve as the qualifying patient's primary caregiver; and

© Control the acquisition of the marihuana, the dosage, and the frequency of the medical use of marihuana by the qualifying patient.

(emphasis added).

 

Does make since to me and I think maybe it should include out-of state Patients also

[cristinew]

I'm just observing the pattern. I still have no idea how happy I'll be about what they have to say.

 

 

opps PB

[Lauren]

Can someone explain please:

Why the language of our law requires the designation of a "primary" caregiver,  if it were not intended to differentiate (or rank) one caregiver over another ( i.e. secondary, tertiary, quaternary, quinary, senary, septenary, octonary, nonary or denary caregivers)?

Are we being presumptuous to reason that if the intent was to designate a "sole" caregiver, it would have been indicated  by using the proper term?

 

Just Wondering.

 

[Merriam Webster/ "Sole"-adj/ belonging exclusively or otherwise limited to one usually specified individual, unit, or group ]

[Merriam Webster/ "Primary"-adj/ first in order of time or development, (of first rank, importance, or value) ]