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

[Highlander]

No point in hashing the "using or administering" topic. The COA already addressed this, and at least for now, we're stuck with it. And most probably stuck with it forever, because the COA interpreted this phrase using proper grammar.

 

The MMMA does not define the phrase “using or administering” marihuana.

Importantly, the phrase cannot be given the same definition as the “medical use” of marihuana.

The inclusion of the phrase “medical use” in the vicinity clause of § 4(i) and its omission and the

presence of the phrase “using or administering” in the assistance clause must be viewed as

intentional. See People v Barrera, 278 Mich App 730, 741-742; 752 NW2d 485 (2008) (“The

omission of a provision in one part of a statute that is included in another should be construed as

intentional, and provisions not included by the [drafters of the statute] should not be included by

the courts.”) (internal quotation marks and citation omitted). Accordingly, the phrase “using or

administering” marihuana must be given a meaning distinct from the definition of the “medical

use” of marihuana.

 

Because the word “administering” is grouped with the word “using,” the two words must

be given related meaning. See Manuel v Gill, 481 Mich 637, 650; 753 NW2d 48 (2008) (stating

that words grouped in a list must be given related meaning). The word “use” is included in the

definition of the “medical use” of marihuana. MCL 333.26423(e). Accordingly, we hold that

whatever the phrase “using or administering marihuana” means, the phrase has a more limited

meaning than that of the “medical use” of marihuana.

[OG Fire Beaster]

Thanks Highlander.

[CaveatLector]

No point in hashing the "using or administering" topic. The COA already addressed this, and at least for now, we're stuck with it. And most probably stuck with it forever, because the COA interpreted this phrase using proper grammar.

 

The MMMA does not define the phrase “using or administering” marihuana.

Importantly, the phrase cannot be given the same definition as the “medical use” of marihuana.

The inclusion of the phrase “medical use” in the vicinity clause of § 4(i) and its omission and the

presence of the phrase “using or administering” in the assistance clause must be viewed as

intentional. See People v Barrera, 278 Mich App 730, 741-742; 752 NW2d 485 (2008) (“The

omission of a provision in one part of a statute that is included in another should be construed as

intentional, and provisions not included by the [drafters of the statute] should not be included by

the courts.”) (internal quotation marks and citation omitted). Accordingly, the phrase “using or

administering” marihuana must be given a meaning distinct from the definition of the “medical

use” of marihuana.

 

Because the word “administering” is grouped with the word “using,” the two words must

be given related meaning. See Manuel v Gill, 481 Mich 637, 650; 753 NW2d 48 (2008) (stating

that words grouped in a list must be given related meaning). The word “use” is included in the

definition of the “medical use” of marihuana. MCL 333.26423(e). Accordingly, we hold that

whatever the phrase “using or administering marihuana” means, the phrase has a more limited

meaning than that of the “medical use” of marihuana.

Ba bam! Thank you.

What case is that from?

Edited February 7, 2013 by CaveatLector

[GregS]

At this point I have no idea what any of it says. Haha.

 

It definitely does not say that Pt/Cg can help with recreational use.

 

I am just trying to figure out what other type of use their is if it is not all medical use.

 

It is necessary to understand that use and administration are separate and distinct activities protected under the blanket term Medical use.

 

3(e) "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.[italics mine]

Edited February 7, 2013 by GregS

[Highlander]

Ba bam! Thank you.

What case is that from?

 

COA ruling in the Compassionate Apothecary appeal.

 

Page 15

 

http://www.compassionateapothecary.com/APPEALRULE.pdf

[Highlander]

Ba bam! Thank you.

What case is that from?

 

Funny that the COA says "....whatever it means..." They wouldn't touch it with a 10-foot pole.

 

What does "using and administering mean?" No one knows for sure. I'm not aware of any cases where this is at issue, unless the SC addresses this as part of the McQueen case, but I don't recall any argument made to the SC that CA was protected under "using and administering." It seems they put their eggs in the "transfer includes sale" basket.

 

It is hard to imagine that this will be cleared up any time soon. It seems that a new court case is possible for every action one might try to fit under both the "using and administering" and the "medical use" umbrellas.

Edited February 7, 2013 by Highlander

[CaveatLector]

I think that everything short of growing is assisting with using or administering, as the ballot language called out the task of growing as specialized to the registered caregiver.

Which was exclusive, not inclusive. The ballot language tells us that a registered cg or pt can exclusively grow (except of course for successful sec. 8 candidates). That doesn't mean that other activities cannot be limited to a cg. Nothing in the language tells us this.

Understand that I am viewing this from an impartial statutory construction standpoint. I am not argung for, or against, a particular group. I am just trying to make an honest go at interpreting the statute. Some may not like the outcome but don't kill the messenger.

[OG Fire Beaster]

Would the supreme court not opine on everything that was a part of the COA opinion? They are hearing this case because McQueen felt that the COA erred in their opinion, correct? So hopefully they will have something to say about this aspect.

[CaveatLector]

It is hard to imagine that this will be cleared up any time soon. It seems that a new court case is possible for every action one might try to fit under both the "using and administering" and the "medical use" umbrellas.

If we are being intellectually honest then it is clear that "using and administering" is a heck of a lot narrower than "medical use." Interpreting it using proper grammar and English language definitions leads us to "using and administering" meaning helping a pt consume the mj. It doesn't mean tranfers or any of that other stuff.

[Highlander]

Would the supreme court not opine on everything that was a part of the COA opinion? They are hearing this case because McQueen felt that the COA erred in their opinion, correct? So hopefully they will have something to say about this aspect.

 

No - otherwise every case that hits the SC would be reversed in some form or sent back downstairs to be retired. Sometimes the SC affirms a lower court's decision.

[CaveatLector]

Would the supreme court not opine on everything that was a part of the COA opinion? They are hearing this case because McQueen felt that the COA erred in their opinion, correct? So hopefully they will have something to say about this aspect.

The supremes only need properly address the actual law that came out of the case. If they do address this, though, can you honestly see them interpreting this differently?

[GregS]

What remains, again, is that patients have separate legal status from caregivers, unless said caregiver is also a patient per 4(A). They are protected in all aspects of medical use with any other patient. Caregivers who do not qualify as patients do not have protection in engaging in medical use with anyone but those patients who are directly connected through the registry, up to five and only up to five and only to include those five.

 

This notion is not lost on judges and law enforcement. They enjoy immunity for acts within the scope of their professional duties that the citzenry does not. Likewise, they do not enjoy those same immunities when acting outside of those duties.

 

I think this should have been a part of the defense in McQueen. Were not the staff all qps?

Edited February 7, 2013 by GregS

[OG Fire Beaster]

Caveat

 

I would hope that they did. I think a lay person would interpret many parts of the act differently than the courts have.

Edited February 7, 2013 by OG Fire Beaster

[CaveatLector]

Let's say this another way, as I think we are kind of miscommunicating.

 

I think we can all agree that the family member acting as an intermediary, without either patient or caregiver credentials, should be protected for acquiring and delivering medical marijuana to a qualifying patient, whether it is from the street, a registered caregiver, or a dispensary.

 

How would we defend that person with the law as it reads today? For a simple scenario, let's say they are stopped by the police on the way back and it is in the trunk, but the officer smells it and wants to search.

 

What should the person say at the scene? If the person is arrested, how should they continue?

Try and argue 4i to the prosecutor. Probably fail. Then assert a sec 8. That is what I would do. Throw everything against the wall.

 

But understand that just because I would do that doesn't mean I believe it would work. I don't think it would, and rightly so. But I would argue that. I think you ultimately end up asserting sec 8 as an unregistered cg.

[CaveatLector]

Caveat

 

I would hope that they did. I think a lay person would interpret many parts of the act differently than the courts have.

I'm not talking about "many parts," just the part at issue here.

[OG Fire Beaster]

This is included in the many parts. So yes, I would hope that they do interpret it(the issue at hand) differently.

Edited February 7, 2013 by OG Fire Beaster

[peanutbutter]

Entirely untrue. A statute is to be read as a whole. You cannot parse a law. In fact, your claim means the definition section isn't relevant to section 4.

 

But none of that even matters because 4i doesn't need 4b to make it clear that 4i offers much more limited protection than 4b. I am not saying 4i depends on 4b. I am saying it is more limited. So whatever protections offered in 4b are broader than in 4i.

 

I really don't know how I can make this any clearer. I think you aren't understanding because you choose not to understand. I think you are being deliberately obtuse. Everything that needs to be said has already been written in my foregoing posts.

 

4 offers protections. Protections for classes of people and actions.

 

each subsection might or might not define the class of persons protected, within that sub section. patients, caregivers, a person. (b) doesn't remove protections from (e) or (i). If protections are to be removed from (b) then they are removed within (b).

 

implicit vs explicit .. implicit is where the real argument starts, I figure.

 

Because it is explicit in (b) it is implied in (e)? I'm saying that (b) doesn't control (e) or (i).

[CaveatLector]

I just can't see how a family member merely acquiring, transporting, and delivering marijuana for the patient could fail to make the three elements of the section 8 defense as long as the doctor has approved. Why do you think it would ultimately fail?

I didn't say I think sec 8 would fail. I think a defense under 4i would. Sec 8 is another thread.

[GregS]

Let's say this another way, as I think we are kind of miscommunicating.

 

I think we can all agree that the family member acting as an intermediary, without either patient or caregiver credentials, should be protected for acquiring and delivering medical marijuana to a qualifying patient, whether it is from the street, a registered caregiver, or a dispensary.

 

How would we defend that person with the law as it reads today? For a simple scenario, let's say they are stopped by the police on the way back and it is in the trunk, but the officer smells it and wants to search.

 

What should the person say at the scene? If the person is arrested, how should they continue?

 

The unqualified person is toast if they say anything. It would be best to shut the hell up and get with a lawyer, who they will tell to file the section 8 motion, and obtain testimony from the patient that said person is the patient's unregistered primary caregiver. If it is not known to police whether said patient has a registered caregiver, or if the patient does, in fact, not have a registered caregiver, this could protect them. This is one of the benefits of going cannabando.

 

'"Acquiring" and "delivering" are separate and distinct from "use" and "administration", all of which are different protected activities along with transfer, cultivation, etc...within the definition of 'medical use.'

Edited February 7, 2013 by GregS

[peanutbutter]

Ba bam! Thank you.

What case is that from?

 

You like that?

 

(“The

omission of a provision in one part of a statute that is included in another should be construed as

intentional, and provisions not included by the [drafters of the statute] should not be included by

the courts.”)

 

OK .. now back to the lack of the phrase in 4(e). that stuff about being registered to ..

[GregS]

You cannot parse a law??? Hahahahahahahhahahhahhhhhhhhaaaaaaaaaaaa!

 

Parsing legal text is an essential part of statutory or case law interpretation.

Edited February 7, 2013 by GregS

[CaveatLector]

You like that?

Yes I like that! Afterall I am a prosecutor, right? Isn't that what you have been spreading to everyone? I'm a regular Schuette stooge! Can't think for myself! Must be a state cop. Or a pros! Maybe both? Or a fed? Afterall, having a line of reasoning that you don't agree with must mean I am on "the other side!"

 

 

Must be pushing schuette's agenda! Otherwise I would agree with every one of your hairbrained interpretations. Right?

 

 

As I already stated, I am interpreting using plain English and proper grammar. You may not like that but making things up that you DO like isn't going to change how this will go in the courts.

[CaveatLector]

Ok, I misinterpreted your comment then. So you agree that the intermediary would (should) have his case dismissed under section 8? Any advice for how to handle the actual arrest?

Be cooperative. STFU. Bond out. Get an attorney that understands the law.

 

Be sure you qualify for section 8 before you do this. Also be sure you can win a section 8. Will the patient testify for you? How are you going to prove the section 8 defense? Know all of this ahead of time. And if you consider yourself the mythical 2ndary cg then you better hope the court agrees or you're in for a long ride up the stairs to the supremes.

[Highlander]

You like that?

 

 

 

OK .. now back to the lack of the phrase in 4(e). that stuff about being registered to ..

 

I think he likes clarity in the face of merit-less or obtuse arguments. Most of us understand that there is a difference between what we like and how it is.

 

Frankly, it seems like you frequently argue what you want, rather than what you can support.

 

The "using and administering" question is/was obvious to anyone with a 10th grade understanding of grammar well before the COA gave it's interpretation.

 

But in your eyes, proper understanding of grammar = an alignment with Schuette.

Edited February 7, 2013 by Highlander

[peanutbutter]

As I already stated, I am interpreting using plain English and proper grammar. You may not like that but making things up that you DO like isn't going to change how this will go in the courts.

 

So, in your opinion, it should be interpreted one way. Meanings that should be there, are.

 

It is entirely possible the SC could agree with you. I do believe that the SC will disagree with you on at least one point. And I've already disclaimed my self with every post. I probably got this one wrong, somehow, also.

 

Sorry it took so long to respond, The reporter took a couple of hours.