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

[CaveatLector]

In 4(a) and (b) the authors clearly were able to use that phrase you would like to insert into 4(e). The authors decided not to include that stuff about a patient linked to then in the registry in 4(e).

I don't think their memories failed them between paragraphs. (yep .. context)

 

What phrase?

 

If you mean the registry link, it wasn't necessary in 4e since it was established in 4b. Like you said, context. The permitted pts to whom you could help with "assistance" were established in 4b so why would they rehash that in the same section of the act? Statutory interpretation in its most basic form tells us they wouldn't . . .

 

That's why they don't need to define "primary caregiver" every time they use the phrase. Because it was dealt with before . . .

Edited February 7, 2013 by CaveatLector

[peanutbutter]

to whom he or she is connected through the department's registration process

 

They knew the phrase. They decided to leave it out of 4(e).

[CaveatLector]

[/b]

 

They knew the phrase. They decided to leave it out of 4(e).

Because it was already established in 4b.

[peanutbutter]

If 4(e) were intended to read as if the phrase existed, the authors would simply have put it there.

[CaveatLector]

I might expect a long section of guidelines in the footnotes.

Maybe, but truth be told that was overstepping. That was a borderline advisory opinion, which isn't permitted by law. They addressed issues not before them. I thought you didn't like activist courts? Ahhh, I get it, you like activist courts when the activism comes out for something you favor. Kind of like the whole jury nullification thing ay? Good if they ignore the law and instructions regarding your issues but bad when they ignore it and convict someone who is not guilty but maybe did other not-so-savory stuff in their pasts?

[CaveatLector]

If 4(e) were intended to read as if the phrase existed, the authors would simply have put it there.

Your reasoning fails basic statutory construction and interpretation rules. It didn't need to be there since 4b already outlined who a cg could assist. 4b established that. It didn't need to be rehashed. Like I said, using your reasoning they would have to define primary cg every time they used the term. Because if the authors wanted primary caregiver to mean what the definition tells us then they would simply have put it there.

[peanutbutter]

Maybe, but truth be told that was overstepping. That was a borderline advisory opinion, which isn't permitted by law. They addressed issues not before them. I thought you didn't like activist courts? Ahhh, I get it, you like activist courts when the activism comes out for something you favor. Kind of like the whole jury nullification thing ay? Good if they ignore the law and instructions regarding your issues but bad when they ignore it and convict someone who is not guilty but maybe did other not-so-savory stuff in their pasts?

 

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

[peanutbutter]

4(b) doesn't define what a primary caregiver is. Instead it defined the protections provided the caregiver, if they are within clear limits. 12 plants per, 2.5 oz per, registry links ..

 

4(e) defines transactions as not being sales. Any transaction between A primary caregiver and A patient. Section 3 defines what a caregiver is. NOT 4(b).

 

Soooo .. it could fall like: the cg could be arrested, but not for sales. One possibility out of several.

 

If there was an intended limit to 4(e) as a qualifier, they would have listed the limits, as they did in 4(b).

Edited February 7, 2013 by peanutbutter

[CaveatLector]

 

 

If there was an intended limit to 4(e) as a qualifier, they would have listed the limits, as they did in 4(b).

Then why would they limit a cg in 4a but not 4e? Why would a cg not have protections from arrest for assisting unconnected pts under 4a but then the drafters tell the cg to go ahead and SELL to those unconnected pts in 4e? The drafters are telling the cg to go ahead and sell but you have no protection from arrest? That's like telling the cg that they can go ahead and grow 1000 plants but they have no protection for it. Absurd result. Therefore it can't be interpreted that way.

[peanutbutter]

Then why would they limit a cg in 4a but not 4e? Why would a cg not have protections from arrest for assisting unconnected pts under 4a but then the drafters tell the cg to go ahead and SELL to those unconnected pts in 4e? The drafters are telling the cg to go ahead and sell but you have no protection from arrest? That's like telling the cg that they can go ahead and grow 1000 plants but they have no protection for it. Absurd result. Therefore it can't be interpreted that way.

 

Don't know why, but they did.

 

Keep in mind that the entire section eight applies completely independent of the registry system.

 

Caregivers are protected by section 8.

[CaveatLector]

Don't know why, but they did.

 

Keep in mind that the entire section eight applies completely independent of the registry system.

 

Caregivers are protected by section 8.

Section 8 isn't relevant to this discussion.

 

The fact that your answer is, "don't know why" just leads right into my argument. "Don't know why" isn't an acceptable answer when you are engaging in statutory interpretation. There is always a reason. The reason here is that the drafters meant to protect cgs who dealt with connected patients.

[OG Fire Beaster]

I'm curious about the construction of 4. Is 4(e) a subset of 4 or is 4(e) a subset of 4(a)/4(b). If 4(e) was supposed to be under the guidelines of 4(a)/4(b) would they not have listed it as a number? I am not familiar with the rules of statutory construction. Reading through the act it seems that there are multiple instances of listing subsets with numbers as in 4(b) and 4(d). Is 4(e) not a separate clause of 4?

 

 

4. Protections for the Medical Use of Marihuana.

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable roots.

© A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.

(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.

Edited February 7, 2013 by OG Fire Beaster

[GregS]

Each alphabetic distinction is a separate section having each its own import, and does not necessarily follow prior sections, except in that they cannot conflict with each other. If numbered subsections subsequently follow an alphabetic section, and occur before the next alphabetic section, the numbered subsections speak in conjunction within that immediate section.

Edited February 7, 2013 by GregS

[GregS]

So we cannot toss this around because the supremes are going to address parts? I prefer to kick issues around. At what point should we ignore them? Maybe we shouldn't address ANY issues since the supreme court may rule on them eventually. Maybe we should all just shut up.

 

I don't mind being "wrong." Reasonable minds can differ. Beyond that, much of the material being addressed here won't likely be addressed by the supremes unless they overreach. Some of this is not before them and shouldn't be touched.

 

...as did Justice O'Connel of the COA.

 

As for keeping mum on the issues, there is every reason, to my mind, to continue to explore and expand on ideas. Whether there is any truth to it, it has been speculated that people in key positions may read some of it, with the possibility that reasonable discussion might somehow find its way into decision making..

Edited February 7, 2013 by GregS

[mibrains]

agreed.

 

i enjoy the discussions usually...

 

even when i am wrong...

to be truthful i enjoy being wrong as much as i enjoy being right.. it is a habit i developed in Band back in school... Teacher said..

if your gonna make a mistake..

make it HUGE

make it correctly...

make it and learn from it..

 

do not fear mistakes.. or hide from them.. Own them and then move on.

 

it is the primary way we as humans learn a lesson.

[peanutbutter]

Each alphabetic distinction is a separate section having each its own import, and does not necessarily follow prior sections, except in that they cannot conflict with each other. If numbered subsections subsequently follow an alphabetic section, and before the next alphabetic section, the numbered subsections speak in conjunction within that immediate section.

 

Yes .. section four starts out "protections for the medical use of marihuana"

 

Then lists them .. 1, 2, 3, 4 ... Each of those is a separate protection. Distinct.

[peanutbutter]

agreed.

 

i enjoy the discussions usually...

 

even when i am wrong...

to be truthful i enjoy being wrong as much as i enjoy being right.. it is a habit i developed in Band back in school... Teacher said..

if your gonna make a mistake..

make it HUGE

make it correctly...

make it and learn from it..

 

do not fear mistakes.. or hide from them.. Own them and then move on.

 

it is the primary way we as humans learn a lesson.

 

I'm soooo far ahead of the game .. I had to change my sig just for my mistakes ..

[CaveatLector]

Yes .. section four starts out "protections for the medical use of marihuana"

 

Then lists them .. 1, 2, 3, 4 ... Each of those is a separate protection. Distinct.

The fact is that a law cannot be interpreted as contradicting iteself. I think you can agree with that premise.

 

Section 4b tells us that a registered cg cannot be subject to prosecution, arrest, etc., when assisting a connected pt. Those explicit protections tell us that the converse is also true--that a cg CAN be prosecuted or arrest, etc., for assisting a non-connected pt.

 

To interpret 4e as providing protection to a cg for selling to an unconnected pt is to read a contradiction into the act. It is telling a cg that s/he can make a transfer, that is a sale, to an unconnected pt. It is telling us that a cg isn't protected for assisting an unconnected pt with a transfer alone but that the cg IS protected for a transfer plus compensation. That is an absurd result. There is no denying that. You cannot, with a straight face, contest that aspect. You cannot put forth a cogent argument whereby you explain that 4b only gives a cg protecton for assisting a connected pt but then 4e allows the cg to assist an unconnected pt in one single aspect of medical use--that being the transfer PLUS compensation. That argument presupposes that the drafters decided to specifically protect unconnected sales but not any other unconnected assistance, including a transfer without remuneration. Please tell me how that is NOT an absurd result.

[Highlander]

Am I the only one who finds it weird that Section 4 is "Protection for Medical Use," yet there are protections that are not medical use protections? See paragraphs f, g, h, and i. And then they toss a penalty in to round out the protections section in paragraph k.

 

How do you determine intent through this kind of a mess?

[bobandtorey]

 

 

Don't know why, but they did.

 

Keep in mind that the entire section eight applies completely independent of the registry system.

 

Caregivers are protected by section 8.

Soon they will and I believe that's why we our still in court

It can't be just about people like Bob and Torey

It's about the Law and how good it is because it Protect's everyone that grows for the sick and the sick

To be able to tell their story to a jury

If you had a 55gal drum of oil and you were helping 20-30 cancer Patients and they come to court to testify to that in front of a jury no one could fine you guilt

[bobandtorey]

Am I the only one who finds it weird that Section 4 is "Protection for Medical Use," yet there are protections that are not medical use protections? See paragraphs f, g, h, and i. And then they toss a penalty in to round out the protections section in paragraph k.

 

How do you determine intent through this kind of a mess?

I agree IMHO that's why all of us only has a sec8

[Restorium2]

Am I the only one who finds it weird that Section 4 is "Protection for Medical Use," yet there are protections that are not medical use protections? See paragraphs f, g, h, and i. And then they toss a penalty in to round out the protections section in paragraph k. How do you determine intent through this kind of a mess?

I believe all the protections afforded by 4 can be seen as protections for ACTUAL medical use, even the penalty. If a patient isn't getting the medical cannabis then a penalty for this can be seen as protecting the medical use.

[Restorium2]

Section 8 protection is completely separate from section 4 protection. That doesn't mean that section 4 can't be seen as the intent of the law, and have that intent apply to section 8. It could be seen as section 8 mirrors section 4 with the only difference as registration. Only speculators have seen section 8 as more liberal with quantities and some sort of continuous supply clause. That might not be seen as true in the long run.

Edited February 7, 2013 by Restorium2

[CaveatLector]

I believe all the protections afforded by 4 can be seen as protections for ACTUAL medical use, even the penalty. If a patient isn't getting the medical cannabis then a penalty for this can be seen as protecting the medical use.

Interesting take on that issue. Makes sense.

[peanutbutter]

The fact is that a law cannot be interpreted as contradicting iteself. I think you can agree with that premise.

 

Section 4b tells us that a registered cg cannot be subject to prosecution, arrest, etc., when assisting a connected pt. Those explicit protections tell us that the converse is also true--that a cg CAN be prosecuted or arrest, etc., for assisting a non-connected pt.

 

Why is the converse also true? Anyone can imagine many many things that are not mentioned in 4(b).

 

For instance, it is not explicitly stated that a caregiver may sleep in a bed. So is sleeping in a bed illegal for a caregiver?

 

If 4(b) were the entire set of protections afforded a caregiver, why have c, d, e etc?

 

BECAUSE it has c, d and e, 4(b) is NOT the entire set of protections within the law. Or within section 4. There are several protections listed. All of the protections are NOT limited to just 4(b).