Medical Marijuana Absurdities In Michigan: Patients Can't Share

[Natesilver]

I've been involved in a number of section 8 defenses, most recently this week (dismissal).  Section 8 works well if you have a good story to tell.  It does NOT work well if you do something you CLEARLY are not allowed to do, like P2P or any of this 'unregistered caregiver' nonsense our friend likes to talk about.

 

The problem with internet forums is that everyone is a jail house lawyer.  Especially if they are letting OTHERS take the risk for following their advice.  My approach is always conservative and safe.  It is designed to keep folks out of the courts and give the community mindset a chance to change- both with the general public and the medical community.  

 

Dr. Bob

Thank you for your opinion Dr. Bob. Your statement "It does NOT work well if you do something you CLEARLY are not allowed to do, like P2P or any of this 'unregistered caregiver' nonsense our friend likes to talk about." is misleading, at best. The Supreme Court ruled that p2p transactions aren't covered under section 4. That's it. To say p2p transactions are not covered under section 8 is dishonest. As long as the 3 prongs are met, it is covered under section 8. I understand everyone has their individual agenda, but let's keep it honest.

[Natesilver]

Unregistered caregivers are protected from conviction, as long as the three prongs of the Affirmative Defense are met. How is that nonsense?

 

It's not nonsense. It's the law. Unregistered caregivers are protected under section 8. P2P is protected under section 8.

[bobandtorey]

On appeal, the Court of Appeals affirmed the trial court, but for a different reason. Specifically, the appellate court found the facts in the affidavit established the necessary probable cause, despite the passage of the MMMA. Contrary to the trial court’s conclusion, the appellate court found the MMMA did not make the possession or cultivation of marijuana “legal.” Instead, the found that any possession of marijuana continues to violate the Public Health Code and is indicative of a criminal act sufficient for a probable cause finding. The court held:

[Celliach]

The law is very clear in this regard. I don't understand why some people are so resistant to section 8. Not resistant to embracing it, I sure wouldn't want to defend a section 8 case the way things stand right now. But resistant to actually acknowledge what section 8 covers. It's almost as if certain members wished section 8 didn't exist and the law ended at section 4. I see those who harbor this mindset as self-serving and quite uncompassionate. All too often, this very vocal minority is on full display here with no dissenting viewpoint permitted.

 

I think you're misinterpreting the position of many.  There are people here, like Bob, that keep saying Section 8 won't work for you.  Unfortunately, for Bob, it hasn't worked for him so his opinion is tainted...with good reason.  Many other people throughout the state have had it work for them.  Many have had it not work for them.  It's up to the judge that hears your case.  Most of the judges in Michigan currently are conservatives that have been in the drug war mindset since the 80s.  Would you want to take a Section 8 case before them?

 

Personally, I think you should act as though Section 8 won't work for you.  That way you may avoid arrest, and most certainly will avoid conviction in most places throughout the state.  That's the advice I always give.  Use Section 8 only if you have to use it as a last resort, don't rely on it for a defense.

[Celliach]

It's not nonsense. It's the law. Unregistered caregivers are protected under section 8. P2P is protected under section 8.

 

There as been no affirmation of this from the courts.  Technically, to be legally correct, you should have said:

 

Unregistered caregivers may be protected under section 8. P2P may be protected under section 8.

[Natesilver]

I think you're misinterpreting the position of many.  There are people here, like Bob, that keep saying Section 8 won't work for you.  Unfortunately, for Bob, it hasn't worked for him so his opinion is tainted...with good reason.  Many other people throughout the state have had it work for them.  Many have had it not work for them.  It's up to the judge that hears your case.  Most of the judges in Michigan currently are conservatives that have been in the drug war mindset since the 80s.  Would you want to take a Section 8 case before them?

 

Personally, I think you should act as though Section 8 won't work for you.  That way you may avoid arrest, and most certainly will avoid conviction in most places throughout the state.  That's the advice I always give.  Use Section 8 only if you have to use it as a last resort, don't rely on it for a defense.

 

I agree, section 8 is a last resort. I don't think anyone on this board is recommending members undertake actions not covered under section 4 just because it's covered under section 8. The issue at hand, is why certain members are unwilling or unable to admit what section 8 says, and what activities are covered under section 8. I think it would be fair to say the majority of vocal posters are are vehemently anti-section 8. The question is why?

 

******Assuming the 3 prongs of section 8 are met, we can say two things definitively:

 

P2P TRANSACTIONS ARE PERMITTED UNDER SECTION 8.

 

UNREGISTERED CAREGIVERS MAY ASSIST AN UNLIMITED NUMBER OF PATIENTS UNDER SECTION 8.

Edited June 26, 2013 by Natesilver

[Dr. Bob]

There is no such thing as an unregistered caregiver.  That has been discussed here before, I won't rehash.  Re-read the CA Supreme Court decision, it addresses Green, and Green was just re-arrested in Barry Co. for trying to be an 'unregistered caregiver'.  Those facts, the SC ruling and arrest, confirm my statement and it needs no further justification.

 

Nate your statement does have a small glimmer of truth, yes you can 'try' a section 8 as you suggest, but I will say that you should listen to folks that have experience and understanding of section 8 when they tell you that it is a last resort to save you from jail, not a defense or justification for doing whatever you want.

 

Dr. Bob

[Celliach]

I agree, section 8 is a last resort. I don't think anyone on this board is recommending members undertake actions not covered under section 4 just because it's covered under section 8. The issue at hand, is why certain members are unwilling or unable to admit what section 8 says, and what activities are covered under section 8. I think it would be fair to say the majority of vocal posters are are vehemently anti-section 8. The question is why?

 

******Assuming the 3 prongs of section 8 are met, we can say two things definitively:

 

P2P TRANSACTIONS ARE PERMITTED UNDER SECTION 8.

 

UNREGISTERED CAREGIVERS MAY ASSIST AN UNLIMITED NUMBER OF PATIENTS UNDER SECTION 8.

 

I think you're misinterpreting their advice.  It's not that they don't believe in Section 8.  They don't believe Section 8 will hold up in the courts in most circumstances and using it is risky.  Unfortunately, there have been few Section 8 acquittals, so these opinions are being based on the facts at hand.  Maybe the communication of ideas could be better.  I know for a fact that I have been misinterpreted many, many times because of my conservative attitude designed to keep people out of jail.

[Natesilver]

There is no such thing as an unregistered caregiver.  That has been discussed here before, I won't rehash.  Re-read the CA Supreme Court decision, it addresses Green, and Green was just re-arrested in Barry Co. for trying to be an 'unregistered caregiver'.  Those facts, the SC ruling and arrest, confirm my statement and it needs no further justification.

 

Nate your statement does have a small glimmer of truth, yes you can 'try' a section 8 as you suggest, but I will say that you should listen to folks that have experience and understanding of section 8 when they tell you that it is a last resort to save you from jail, not a defense or justification for doing whatever you want.

 

Dr. Bob

 

You can call it unregistered caregiver, you can call it P2P, you can call it an orange lamp. Whatever you call it, assuming the 3 prongs of section 8 are met, it's covered under section 8.

[Celliach]

Honestly, while I think there might be legal standing for an unregistered caregiver, I don't think any court in Michigan will give you a pass on that one.  It would be difficult to prove at best. 

[Dr. Bob]

And for the record, I've been involved in MANY section 8 hearings where the three pronged defense was used to justify 'minor' violations of section 4.  We have one coming up with a minor that didn't register due to lack of a second physician in the face of a clear medical condition and a recommendation from one physician.  This is a really good case to test the limits of section 8 beyond just being a plant or two over or not having your grow room locked.

 

The key to success is minor variations, not trying to justify an 'unregistered caregiver system' or other such nonsense.  Assuming for a moment there was such a thing as an 'unregistered caregiver' why all the fuss about dispensaries and farmers markets- they are just unregistered caregivers, right?  Why would ANYONE bother to register as a caregiver?  You see, it violates the entire premise of the caregiver/patient system, not to mention the MMMA.

 

Dr. Bob

[Dr. Bob]

Honestly, while I think there might be legal standing for an unregistered caregiver, I don't think any court in Michigan will give you a pass on that one.  It would be difficult to prove at best. 

There might be legal standing for ANYTHING that assists a patient in treating their condition of any kind with cannabis, and there is a chance that I could be elected to the Michigan Senate as a Libertarian.  I think you are very correct that the probability of getting a pass or a seat is pretty low.

 

Dr. Bob

[Natesilver]

Assuming for a moment there was such a thing as an 'unregistered caregiver' why all the fuss about dispensaries and farmers markets- they are just unregistered caregivers, right?  Why would ANYONE bother to register as a caregiver?  You see, it violates the entire premise of the caregiver/patient system, not to mention the MMMA.

 

That's the law Dr. Bob. You might not like section 8, but it's the law of the land.

[Dr. Bob]

There is a lot still unknown about section 8, and declaring, in capital letters, that something or another is "permitted" under section 8 is not accurate.

Once again, quiet Zap hits the nail on the head with a single, well turned phrase.

 

Section 8 'permits or authorizes' NOTHING.  It is merely an opportunity to throw yourself on the mercy of the court.

 

Dr. Bob

[Dr. Bob]

That's the law Dr. Bob. You might not like section 8, but it's the law of the land.

Then perhaps you should re-read it.  And review what the courts say it means.  You will find your opinion is not shared.  And for the record, I love section 8 and work with it all the time.  It is a great way to keep the prosecutors in check, but this 'I can do anything I want and section 8 will protect me' attitude is not helping the community.

 

Dr. Bob

Edited June 26, 2013 by Dr. Bob

[Natesilver]

Then perhaps you should re-read it.  And review what the courts say it means.  You will find your opinion is not shared.

 

Section 8 is very clear Dr. Bob. As long as the 3 prongs are met it's covered.

[Natesilver]

this 'I can do anything I want and section 8 will protect me' attitude is not helping the community.

 

whoa I don't think anyone has said that. But as long as you meet the 3 prongs you're covered

Edited June 26, 2013 by Natesilver

[Celliach]

Section 8 is very clear Dr. Bob. As long as the 3 prongs are met it's covered.

 

That's not really an accurate statement.  Section 8 is not all encompassing as you think it is.  All it does is give you a chance to let a judge, or jury, decide if you were justified in breaking the law.  Other than that, nothing is "very clear" about Section 8 defenses.  There haven't been any upper court rulings to bolster your opinion......unfortunately.

[Natesilver]

That's not really an accurate statement.  Section 8 is not all encompassing as you think it is.  All it does is give you a chance to let a judge, or jury, decide if you were justified in breaking the law.  Other than that, nothing is "very clear" about Section 8 defenses.  There haven't been any upper court rulings to bolster your opinion......unfortunately.

 

Well, without getting into hypothetical detials about hypothetical scenarios, we can say something definitive about section 8:

 

A P2P transaction meeting the 3 prongs described in section 8 is covered by section 8.

[Celliach]

You can't say that at all.  It's up to the judge hearing your case to make that decision.  He/she decides whether you meet the three prongs.

[Natesilver]

You can't say that at all.  It's up to the judge hearing your case to make that decision.  He/she decides whether you meet the three prongs.

 

If the 3 prongs are met- it's covered

[Celliach]

You're jumping ahead.  It's up to a judge to decide whether the three prongs are met.  If he/she decides they are, then it's covered, but not until the judge decides it is.

 

Therein lies the problem.  A judge can just decide that your case doesn't meet the three prongs and strip away your Section 8 defense before you ever get to use it.

[Dr. Bob]

If the 3 prongs are met- it's covered is a correct statement.  A correct statement that says nothing.  It is akin to saying if you don't get caught you can't go to jail.  That is also a correct statement that adds nothing to the subject being discussed.

 

Dr. Bob

[Natesilver]

You're jumping ahead.  It's up to a judge to decide whether the three prongs are met.  If he/she decides they are, then it's covered, but not until the judge decides it is.

 

Therein lies the problem.  A judge can just decide that your case doesn't meet the three prongs and strip away your Section 8 defense before you ever get to use it.

 

We can deal with hypothetical "what if" scenarios all day long. We can discuss what judges might do in a hypothetical case. But, but... a hypothetical judge might just say your case doesn't meet the requirements in this hypothetical case...

 

Or we can discuss the written law. A P2P transaction meeting the 3 prongs of section 8 is covered under section 8

[Dr. Bob]

We can deal with hypothetical "what if" scenarios all day long. We can discuss what judges might do in a hypothetical case. But, but... a hypothetical judge might just say your case doesn't meet the requirements in this hypothetical case...

 

Or we can discuss the written law. A P2P transaction meeting the 3 prongs of section 8 is covered under section 8

Actually I think the SC and Green have already ruled.  As you have been shown.  

 

This isn't a hypothetical issue.  Section 8 is a defense and no more.  To suggest someone do something and rely on section 8 is irresponsible.  Section 8 only comes into play AFTER a patient has been charged.  Now if you have someone that has been charged and are looking for ideas to try and use section 8 to prevent them from going to jail for something they can justify under the act that is another matter and I for one am all ears.  But to start with a premise (like an 'unregistered caregiver') and then try to use section 8 to justify the position shows a clear lack of understanding of what section 8 is, says, or how it is used.

 

Not trying to quiet you or change your mind, just pointing out the obvious flaw in the discussion.

 

Dr. Bob