Mmp Denies Disability Discount In Secret Move, Only "full Ssi Gets Discount (And They Informed No One) !

[Murph]

B&T, All,

 

Yes I think the open meetings act might be   impacted as surely some meeting was held with someone - not sure if they would be required though. In research .....

 

First - Trying to  line Counsel up pro bono to handle it, perhaps as many plaintiffs as possible (see below) but it is best if they are the best possible like disabled Vets (that Were denied because of 1) the new chronic pain requirements, or b) the elimination of the discounted fee-- if anyone else knows someone like this that HAS IN HAND a denial due to the above, please do not hesitate to run it by them.

 

IMHO This should be about enforcing the MM Act as written, as it has been 4 years now. And in addition:

1) the PROCEDURAL WAY these changes were made to the Application, and Application process -- without notice to those impacted or their Doctors,

 

and 

 

2) eliminating the SSDI discount in the same (lack of) PROCEDURE. Moreover, it was done without any Notice and lacks any basis (e.g. arbitrary and capricous ) or reason given the Program has surplus monies

from the MM Program Application Fee.

 

Looks like  4 or 5 Counts including Mandamus. This would also include an ex parte Request for a Temporary Restraining Order (TRO) that would be preliminary to a Permanent Injunction that the State MM Program  must come into compliance with the Act, the one biggie is issuing Cards in 20 days as the text of the Act requires.

 

Bottom line, IMHO It is about time the MMAct be complied with by the State. These most recent "changes" have damaged people because they expected a Renewed Card and instead got a Denial Letter (unexpectedly) due to one of the two reasons -- I know of one person like this but if more can be found, the better.

 

As for pro bono counsel - Lansing Area that KNOWS the Judges (like former clerks) would be the best. I am working the phones but if anyone else knows of someone who might take this pro bono, great let me Know.

 

Will check back in this evening -- trying to have it filed next Week - the person I posted about should have their re-newal registry card but because of the added chronic pain requirements, does not. That is some serious do do for Him and serious damage. If more similarly situated exist that could be co-plaintiff's the better (but then that REQUIRES counsel). If no counsel can be found pro bono, it will be brought pro se.

(bottom line Here, someone has to start pressing them to comply with the Law IMHO and His)!

 

M

 

I think all those active Here need to contact anyone and everyone  who is impacted by this with an eye towards someone's who Re-Application was denied because of  1) the new application requiring the added reasons for chronic pain when it previously (2012) was not required. It must have been denied as this is the damage. Pass the word Guys - this can not be a One or even ten  man show as even pro se litigation is expensive. Also I read someone said others wrote Amicus Briefs, and I have conversed with others here that obviously know the law ( like caveat lector) and a few others as well - I will create a google HangOut tonight and post it here....many heads make better than fewer as there is no intent to file something that might be lost as We agree that would be damaging...its got to win on summary disposition which means no dispute to anything other than the amount of damages.

Edited July 11, 2013 by Murph

[abe supercro]

I would love to see a group address these improprieties head on. I'd definitely help subsidize these efforts if we could find an attorney with the time and basketballs.

[Dr. Bob]

My personal favorite is the citizen review committee.  I'd like to see representatives of patients, caregivers, certification physicians, etc review any proposed changes in the administrative rules prior to implementation.

 

Any change should be geared toward 'how does this improve access and implement the spirit of the act'.

 

I'll hold my breath, but would be the first to vol to be on the panel.

 

Dr. Bob

[ozzrokk]

My personal favorite is the citizen review committee.  I'd like to see representatives of patients, caregivers, certification physicians, etc review any proposed changes in the administrative rules prior to implementation.

 

Any change should be geared toward 'how does this improve access and implement the spirit of the act'.

 

I'll hold my breath, but would be the first to vol to be on the panel.

 

Dr. Bob

 

 

Please Dr. Bob do not hold your breath. There are those of us that want you around for a long time, so please at least take a breath every now and then while you wait for that to happen......

[GregS]

Tuesday. July 16th. Gone Wired. 7:00. Be there.

Edited July 11, 2013 by GregS

[Dr. Bob]

Please Dr. Bob do not hold your breath. There are those of us that want you around for a long time, so please at least take a breath every now and then while you wait for that to happen......

Lol

[Dr. Bob]

Tuesday. July 16th. Gone Wired. 7:00. Be there.

 

I might actually be able to make that.  I'm in Saginaw that day and don't have an evening clinic (for once).  Maybe someone like Denise could stop by, want me to message her?

 

Dr. Bob

[GregS]

I might actually be able to make that.  I'm in Saginaw that day and don't have an evening clinic (for once).  Maybe someone like Denise could stop by, want me to message her?

 

Dr. Bob

And I will look forward to meeting you. Bring as many motivated people as you like. Thanks.

Edited July 11, 2013 by GregS

[GregS]

RSVPs welcome.

[Murph]

Excellent, 

 

Please invite anyone LEGALLY interested and those who will help, plaintiffs (denied due to chronic pain documentation, or Disability Discount not accepted. Help funding  ideas

(or those can do legal research as it is all about admin. cases and Constitutional Law as well as mandamus *which is NOT used much these days).

 

Tuesday. July 16th. 7:00 pm. 

BUT please be aware "Gone Wired"  is now: 

The Avenue Cafe, 2021 E Michigan Ave., Lansing, MI 48912

517) 853-0550

https://www.facebook.com/avenuecafe2021

 

****************

 

https://maps.google.com/maps?q=The+Avenue+Cafe,%C2%A02021+E+Michigan+Ave.,%C2%A0Lansing,%C2%A0MI%C2%A048912&ie=UTF8&fb=1&gl=us&hq=The+Avenue+Cafe,&hnear=0x8822e9ffee7d1867:0xa4d9f23867bfc5cd,2021+E+Michigan+Ave,+Lansing,+MI+48912&cid=0,0,6574186077753121226&t=h&z=16&iwloc=A

 

********************

and particularly anyone with a Denial Renewal Letter due to (1) CHRONIC PAIN DOCUMENTATION,  or (2) DISCOUNT FEE .  Please invite as many Plaintiffs are needed.

 

We want to keep this ON POINT.  We cannot spin our Wheels. most are equitable issues so anyone or Attys. who have clerked for, know well, the

Lansing Court of Claims (Ingham Circuit Court) Judges is a GREAT asset (as people are people, if they like someone it helps) !!

 

I emails MPP's Karen O'Keefe as she has always been very Helpful ....perhaps a Hangout/Skype can bring Her into it if time permits and She can

(I have no idea) as Her insight is always spot on.....legally.

http://blog.mpp.org/tag/karen-okeefe/

 

If anyone can find the Mi Admin Code THE Medical Marijuana Program, Please do post it  (as the Prgrm has its own Admin. law page somewhere):

http://www7.dleg.state.mi.us/orr/AdminCode.aspx?AdminCode=Number&Admin_Num=32700001&RngHigh=33923405

 

Lets try to keep it on point - The MM Programs Administrative rules page ...is oddly enough....not under the other Depts. It should be under (Admin Code for the Dept.):

 

http://www.michigan.gov/lara/0,4601,7-154-35738_5698-118524--,00.html

 

Or the Dept. (but it is nowhere that I can find after quick gleaning) ....

 

 

http://www7.dleg.state.mi.us/orr/AdminCode.aspx?admincode=Department&Dpt=CH

 

If someone wants to do some legal research and knows how (what is the controlling case and/or ii) Administrative Law (Decisions) - please feel free.

I am looking to due process in medical cases generally (as not alot in MICH for this But California has tons)

The code  - and where they did the noted changes in  the Admin. code/rules THEY SAY is applicable is not easily found.....dug for a bit but??? Is it hidden?

http://www.michigan.gov/lara/0,4601,7-154-35738_5698---,00.html

 

I have looked at  caselaw,  ran a few cases,  Shepardized a few of them.... Koon is not too applicable ( and the other well known cases) but need cases to "Hang our Hat On" any Help is appreciated.

Michigan Appellate Digest is no longer maintained or updated (but still works).

 

http://coa.courts.mi.gov/Digest/DigestLaunchPage.jsp

 

I will hit the Strosacker Room after I run Westlaw and Nexis -- Mon or Tues.

 

 

Will try to have a Draft Complaint if the above can be answered - alternative draft complaints *prints and on thumb drive* are welcome - good enough and old enough to know I know nothing!

 

Dr. Bob, would be great to meet ya!!

 

Cheers,

 

M

Edited July 12, 2013 by Murph

[GregS]

Thanks Murph. While I intend to give the rule changes some time and address those concerns, and to talk out some of the issues regarding the New Condition Panel shell game that we were insulted with, there are larger issues. I hope to bring together people who will again be devoted advocates for those and other kinds of issues, both as they are on the ground now, and any that will arise later

 

Did you get my pm?.

[Murph]

No got no PM (but I will check now).

 

New Criminal Case Appeal out :  People v EARL CANTRELL CARRUTHERS

 

Lucky Guy - even though His Atty Did not argue (or even assert) a Sect. 8 Defense in addition to Sect. 4 defense -- the COA

gave him the chance to do so and go back in the Circuit Court (which is probably great for Him to spend more money) and prove Sect. 8 affirm. Defense's provisions or requirements

(should be fairly easy despite what the Judges say)...

 

With this case We all need to get behind Him and make sure the Sect. 8 affirm. defense is done RIGHT (and *who was his Atty to start with I wonder - not a great Job IMHO from the decison?*).

Whoever did the appeal was pretty good but left some of the same arguments out -- what are they charging by the Word so they cannot make 2 arguments, Sect. 4 and Sect. 8?

 

--but He IS a Lucky Dog !! Were getting somewhere....

 

____________________________________

 

Edibles are no longer "usable marijuana" and as such weight of everything (as is usually the case like with stepped on cocaine,

no matter how bad it is stepped on it is "all" concaine for weight purposes (so you have 1 gram in 100 pounds, you still are convicted of 100 pounds

which is USUALLY the case -- but they ruled it is not "usable" so it does not become "usable" MMJ --- the Sup. Crt surely will take this and I bet the Oakland

Pros. no doubt appeals).

 

Really has no impact on the matters we are discussing (with the exception that the COA is now actually applying the law rather than just being jerks)!

 

Cheers,

 

M

 

 

BELOW IN ENTIRETY

++++++++++++++++++++++++++++

 

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

July 11, 2013

9:05 a.m.

 

v No. 309987

Oakland Circuit Court

 

EARL CANTRELL CARRUTHERS, LC No. 2011-237303-FH

Defendant-Appellant.

 

Before: M. J. KELLY, P.J., and MURRAY and BOONSTRA, JJ.

BOONSTRA, J.

 

Defendant appeals by right from his conviction of possession of marijuana with intent to

deliver, MCL 333.7401(2)(d)(iii), following a jury trial. We remand to allow defendant to file a

motion to dismiss the charges against him and for an evidentiary hearing to determine whether

defendant can present an affirmative defense pursuant to section 8 of the Michigan Medical

Marihuana1 Act (MMMA), MCL 333.26421 et seq. We also determine, as an issue of first

impression, that under the existing statutory scheme, an edible containing THC extract from

marijuana resin is not “usable marihuana” under the MMMA. See MCL 333.26423(k).

 

I. BASIC FACTS AND PROCEDURAL HISTORY

Following a traffic stop on January 27, 2011, defendant was charged with possession

with intent to deliver marijuana and driving with a suspended license. Defendant filed a motion

to dismiss the possession of marijuana charge, arguing that the prosecution was improper

because he had in his possession at the time of the traffic stop a medical marijuana card for

himself, caregiver applications for four patients, and a caregiver certificate. He also argued that

the gross weight of the brownies found in his vehicle should not be considered toward the

amount limit set forth in section 4 of the MMMA, MCL 333.26424. Rather, only the net weight

of the active ingredient of marijuana contained in the brownies should be considered, and section

1 Although the statutory provisions at issue refer to “marihuana” and “usable marihuana,” “by

convention this Court uses the more common spelling ‘marijuana’ in its opinions.” People v

Jones, ___ Mich App ___; ___ NW2d ___ (2013), slip op at 1 n 1. This opinion will thus refer

to “marijuana” apart from direct quotation of statutory language and reference to the full title of

the MMMA.

 

 

-2-

4 then would prohibit his prosecution.2 The trial court denied defendant’s motion to dismiss,

ruled that the entire weight of the brownies would be considered as a marijuana mixture, and

ruled that defendant could not use the medical marijuana defense at trial. Although the trial

court gave defendant permission to file an interlocutory appeal, no such appeal was ever filed.

Defendant was charged with possession of marijuana found in various locations within

the vehicle, including mason jars, plastic bags, and a binder of plastic pouches, as well as

containers of brownies that were individually labeled to indicate the weight of the brownie and

content of medical marijuana (e.g., brownie weighing 3.1 ounces and containing two grams of

medical marijuana). The labels also said, “For medical use only, keep out of children’s reach,

medical marijuana, two grams each.” There were also some sugar oatmeal cookies, labeled 3.75

grams each.3 Prices were written on the bags that contained marijuana. Various packaging

materials, including Glad zipper bags, labels, price labels, plastic portion cup lids, a vacuum

sealer, and a grinder, were found. The police also found a tally sheet, listing people’s names, the

amount purchased, and the amount paid. For the most part, the prices and quantities matched the

prosecution’s expert’s training and experience regarding the street values of marijuana.

A brownie was tested by a forensic chemist and found to contain Delta 9

tetrahydrocannibinol (“THC”), a schedule I controlled substance.

 

The chemist could not

determine how much THC was in the brownie, nor could the chemist detect any plant material in

the brownie by examining it microscopically. The chemist testified that the weight of “the total

mixture that contains the THC,” i.e. one brownie, was 69.08 grams;4 the other brownies were of

similar size. The chemist also testified that THC extraction techniques involve extracting THC

from the resin of the marijuana plant. Testimony from a prosecution expert indicated that 9.1

ounces of usable marijuana (separate from the baked goods) was found, as well as 54.9 ounces of

the brownies containing THC.

 

At his preliminary examination, defendant acknowledged that

THC was extracted from marijuana and infused into the brownies. Defendant’s counsel at the

preliminary exam also stated that the brownies were “not made from ground up leaves [of

marijuana]” but rather were made with a THC extract called “Cannabutter.”

The jury returned a guilty verdict to the charge of possession with intent to deliver the

controlled substance marijuana. The trial court sentenced defendant to three years’ probation

with 33 days in jail. This appeal followed.

 

 

2 Defendant indisputably possessed 9.1 ounces of usable marijuana in the form of raw plant

matter. Thus, if the aggregate weight of the brownies (54.9 ounces) were added to that amount,

defendant would have been in possession of 64 ounces, considerably more than the 12.5 ounces

he arguably was allowed to possess under the MMMA.

3 The sugar cookies appear not to have been subjected to forensic testing and did not appear to be

part of the trial court’s weight calculation.

4 We note that 69.08 grams is roughly 2.44 ounces, slightly less than the per patient allowable

quantity of usable marijuana under section 4 of the MMMA.

 

-3-

II. STANDARD OF REVIEW

 

This case presents issues of statutory interpretation. We review questions of statutory

interpretation de novo. People v Kolanek, 491 Mich 382, 393; 817 NW2d 528 (2012).

Because the MMMA resulted from the passage of a citizens’ initiative, our interpretation

of language of the MMMA is guided by the established principles concerning the interpretation

of voter initiatives:

 

ecause the MMMA was the result of a voter initiative, our goal is to ascertain

and give effect to the intent of the electorate, rather than the Legislature, as

reflected in the language of the law itself. We must give the words of the

MMMA their ordinary and plain meaning as would have been understood by the

electorate. [id. at 397.]

 

“The words of an initiative law are given their ordinary and customary meaning as would have

been understood by the voters.” People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010).

Our analysis also is guided by our established canons of statutory interpretation. We presume

that the meaning as plainly expressed in the statute is what was intended, and we avoid a

construction that would render any part of the statute surplusage or nugatory. Id. Statutes that

relate to the same subject, that is to say the same person or thing or class of persons or things,

should be harmonized. People v Shakur, 280 Mich App 203, 209; 760 NW2d 272 (2008).

 

III. THE MMMA GENERALLY

 

Although marijuana remains illegal in Michigan, the MMMA allows a limited class of

individuals the medical use of marijuana. MCL 333.26421 et seq. The history and purpose of

the MMMA has been described by our Supreme Court as follows:

The MMMA was proposed in a citizen’s initiative petition, was elector-approved

in November 2008, and became effective December 4, 2008. The purpose of the

MMMA is to allow a limited class of individuals the medical use of marijuana,

and the act declares this purpose to be an “effort for the health and welfare of

[Michigan] citizens.” To meet this end, the MMMA defines the parameters of

legal medical-marijuana use, promulgates a scheme for regulating registered

patient use and administering the act, and provides for an affirmative defense, as

well as penalties for violating the MMMA.

 

 

The MMMA does not create a general right for individuals to use and possess

marijuana in Michigan. Possession, manufacture, and delivery of marijuana

remain punishable offenses under Michigan law. Rather, the MMMA’s

protections are limited to individuals suffering from serious or debilitating

medical conditions or symptoms, to the extent that the individual’s marijuana use

“is carried out in accordance with the provisions of [the MMMA].” [Kolanek,

491 Mich at 393-394 (internal citations and footnotes omitted).]

 

This action presents issues arising under two sections of the MMMA. Section 4 of the

MMMA, MCL 333.26424, grants broad immunity from criminal prosecution and other penalties

 

-4-

 

to qualified patients and caregivers who hold registry identification cards and who possess “an

amount of marihuana that that does not exceed 2.5 ounces of usable marihuana,” or, as to a

primary caregiver, “2.5 ounces of usable marihuana for each qualifying patient to whom he is

connected through the department’s registration process.” MCL 333.26424(a), (b)(1).

Section 8 of the Act, MCL 333.26428, provides an affirmative defense to patients

generally for “possession of a quantity of marihuana that was not more than was reasonably

necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or

alleviating the patient’s serious and debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition.” MCL 333.26428(a)(2).

 

Section 8’s affirmative

defense is thus available regardless of the amount of marijuana possessed. A defendant may

assert a section 8 defense by filing a motion to dismiss the criminal charges, in which case an

evidentiary hearing shall be held before trial. MCL 333.26428(b); Kolanek, 491 Mich at 393-

397.

 

Under the MMMA,“‘[m]arihuana’ means that term as defined in section 7106 of the

public health code, 1978 PA 368, MCL 333.7106.” MCL 333.26423(e). MCL 333.7106(3) in

turn defines “marihuana” as follows:

“Marihuana” means all parts of the plant Cannabis sativa L., growing or

not; the seeds thereof; the resin extracted from any part of the plant; and every

compound, manufacture, salt, derivative, mixture, or preparation of the plant or its

seeds or resin. It does not include the mature stalks of the plant, fiber produced

from the stalks, oil or cake made from the seeds of the plant, any other compound,

manufacture, salt, derivative, mixture or preparation of the mature stalks, except

the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant

which is incapable of germination. [MCL 333.7106(3).]

 

 

Additionally, the MMMA separately defines “usable marihuana” as follows:

“Usable marihuana” means the dried leaves and flowers of the marihuana plant,

and any mixture or preparation thereof, but does not include the seeds, stalks, and

roots of the plant. [MCL 333.26423(k).]

Thus, the definition of “usable marihuana” under the MMMA is narrower than the definition of

“marihuana” that is incorporated into the MMMA through the public health code, as is described

with greater particularity below.

 

IV. THE “MIXTURE” ISSUE, AS PRESENTED

 

Defendant claims that the trial court erroneously denied him the protection of section 4 of

the MMMA, because the trial court’s determination that he possessed more than the allowable

quantity of marijuana under the act was based upon the aggregate weight of the baked goods in

his possession, rather than the net weight of the THC contained therein. We thus are presented

with an issue of first impression: in determining whether the quantity limit of section 4 has been

exceeded, is it the aggregate weight of an edible that is to be considered, or, alternatively, is it

only the net weight of the marijuana (or its active ingredient) contained in the edible that is to be

considered?

 

-5-

 

Defendant maintains that the consideration of the aggregate weight of an edible would

“defeat the purpose of the MMMA,” as it would effectively deny the medicinal use of marijuana

by a delivery system other than smoking. Defendant argues that the proper course of action

would be to consider only the amount of marijuana as was reflected on the labels that defendant

had affixed to the brownies.

 

Plaintiff argues, to the contrary, that an edible constitutes a “mixture” or “preparation”

within the MMMA’s definitions of “marihuana” and “usable marihuana” and, therefore, that the

entire weight of the edible should be considered. Plaintiff contends that such a reading would be

consistent with prior court decisions holding that the weight of a controlled substance for

criminal prosecution purposes includes the aggregate weight of the entire mixture or preparation

containing the controlled substance.

 

For the reasons that follow, we conclude that the issue as presented is not properly before

us, and that it is unnecessary for us to decide that issue in the circumstances presented. Rather,

we find, also as an issue of first impression, that edibles made with THC extracted from

marijuana resin are not “usable marihuana” under the MMMA. Our resolution of that

definitional issue compels us to conclude that we should not reach the “mixture” issue, as

presented to us, and instead should resolve the issues before us on alternate grounds.

 

V. THE BROWNIES WERE NOT “USABLE MARIHUANA” UNDER THE MMMA.

 

As noted, the MMMA separately defines “marihuana” and “usable marihuana.” Notably,

the definition of “marihuana” includes “all parts” of the cannabis plant, as well as “the resin

extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture,

or preparation of the plant or its seeds or resin.” The definition specifically excludes the “mature

stalks” of the plant “except the resin extracted therefrom.” By virtue of that exception, therefore,

resin extracted from mature stalks also is expressly included within the definition of

“marihuana.” There is no dispute that both the raw marijuana and the brownies found in

defendant’s possession constitute “marihuana” under the MMMA.

 

By contrast, however, the definition of “usable marihuana” under the MMMA does not

include “all parts” of the cannabis plant. More to the point, it specifically does not include “the

resin extracted from” the cannabis plant. Nor does it include “the resin extracted” from mature

stalks of the plant. Further, it does not include “every compound, manufacture, salt, derivative,

mixture, or preparation of the plant or its seeds or resin.” Rather, and in stark contrast to the

MMMA’s definition of “marihuana,” it includes only “the dried leaves and flowers of the

marihuana plant, and any mixture or preparation thereof.” [MCL 333.26423(k) (emphasis

added).] The word “thereof” as used in this definition refers back to the immediately preceding

phrase “the dried leaves and flowers of the marihuana plant.” Therefore, to constitute “usable

marihuana” under the MMMA, any “mixture or preparation” must be of “the dried leaves or

flowers” of the marijuana plant.

 

Plaintiff argues that the resin from which THC is extracted would itself have been

extracted from the leaves and flowers of the marijuana plant. Further, the brownies were a

“mixture or preparation” of the THC. Therefore, according to plaintiff, the brownies constitute

“usable marihuana.” Plaintiff further argues that THC constitutes “marihuana” under the

 

-6-

 

MMMA, and that THC is “clearly ‘useable’” [sic], since it is ingested by virtue of ingesting the

edibles in which it is contained.

 

Plaintiff offered into evidence the testimony of the forensic chemist who analyzed the

brownies5 in this case. The chemist testified that there was no detectable plant-like material in

the brownies, but that they contained Delta 9 THC. She defined THC as one of the cannabinoids

or active ingredients found in the marijuana plant. The chemist also testified that THC extraction

techniques involve extracting THC from the resin of the marijuana plant. THC could be made

synthetically as well. The chemist agreed at trial that both marijuana and THC were controlled

substances. At defendant’s preliminary examination, the chemist offered the opinion (which is

supportive of plaintiff’s position on appeal) that brownies containing THC constitute “usable

marihuana” under the MMMA, because the tested brownie was “the extract from the marijuana

plant as added to the—the mixture or the item that is to be consumed.”

 

At his preliminary examination, defendant acknowledged that THC was extracted from

marijuana and infused into the brownies. Defendant’s counsel also stated that the brownies were

“not made from ground up leaves [of marijuana]” but rather were made with “Cannabutter”

containing THC extract. Defendant therefore argued at his preliminary examination,

unsuccessfully, that the brownies were not “usable marihuana” under the MMMA.

 

On appeal, defendant does not press this argument; instead, he effectively concedes that

point but argues that the proper course of action would have been for the trial court to use the

amount of marijuana as set forth on the label, and to count the brownies to see if the active

ingredient totaled more than 3.4 ounces (the total amount of usable marijuana that, when added

to the 9.1 ounces of raw marijuana found in baggies, defendant arguably would be allowed to

possess under section 4). In essence, defendant now seeks to avoid criminal prosecution under

our controlled substance possession laws by (a) effectively conceding the brownies to be “usable

marihuana” and thereby gaining protection under section 4 of the MMMA; yet, (b) seeking to

count only the THC-portion of the brownies toward the statutory quantity allowance, even

though our possession laws would count the entire weight of the brownies. See MCL

333.7401(2)(d)(i)-(iii); People v Kidd, 121 Mich App 92, 95; 328 NW2d 394 (1982); see also

People v Prediger, 110 Mich App 757, 760; 313 NW2d 103 (1981); People v Lemble, 103 Mich

App 220, 222; 303 NW2d 191 (1981). Further, because the evidence reflects that the amount of

THC contained in a brownie cannot be measured, he suggests that the courts accept at face value

the quantities listed on the labels he affixed to the brownies.

 

We disagree with both plaintiff and defendant, based on the plain language of the

MMMA itself.6 Notably, the MMMA’s definition of “usable marihuana” excludes much of the

5 The chemist tested only one brownie seized from defendant; however, defendant does not argue

that the other brownies do not contain THC. Therefore, we will sometimes refer to “brownies”

in the plural.

 

6 We also note briefly that adoption of defendant’s position that the trial court should have relied

on quantities set forth on the labels that defendant placed upon the brownies would be absurd; we

 

-7-

 

language found in the definition of “marihuana.” It excludes the words “resin extracted from any

part of the plant,” and “compound, manufacture, salt, derivative . . . of the plant or its seeds or

resin.” See MCL 333.7106, MCL 333.26423(k). It additionally excludes “the resin extracted”

from “the mature stalks of the plant.” Id. To ignore these exclusions, and to thereby construe

“usable marihuana” to include a “mixture or preparation” of an extract (THC) of an extract

(resin) from the marijuana plant, would alter the plain meaning of the words that the drafters of

the MMMA chose to employ.

 

By excluding resin from the definition of “usable marihuana,” as

contrasted with the definition of “marihuana,” and defining “usable marihuana” to mean only

“the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof,”

MCL 333.26423(k) (emphasis added), the drafters clearly expressed its intent not to include

resin, or a mixture or preparation of resin, within the definition of “usable marihuana.” It

therefore expressed its intent not to include a mixture or preparation of an extract of resin.

Consequently, an edible made with THC extracted from resin is excluded from the definition of

“usable marihuana.” Rather, under the plain language of the MMMA, the only “mixture or

preparation” that falls within the definition of “usable marihuana” is a “mixture or preparation”

of “the dried leaves and flowers of the marihuana plant.” Id.

 

Provisions not included in a statute should not be included by the courts. Mich Basic

Prop Ins donkey'n v Office of Financial & Ins Regulation, 288 Mich App 552, 560; 808 NW2d 456

(2010). Further, the use of different terms in a statute suggests different meanings. US Fidelity

Ins & Guaranty Co v Mich Catastrophic Claims donkey'n (On Rehearing), 484 Mich 1, 14; 773

NW2d 243 (2009). Finally, although only an aid to interpretation, we note that the maxim

"expressio unius est exclusio alterius” (the expression of one thing suggests the exclusion of all

others) means that the express mention of one thing in a statutory provision implies the exclusion

of similar things. Johnson v Recca, 492 Mich 169, 176 n 4; 821 NW2d 520 (2012).

 

Nor are we persuaded by plaintiff’s argument that “usable marihuana” merely constitutes

“marihuana” that is “usable,” and that a brownie containing THC extracted from the resin of a

marijuana plant is “usable marihuana” because it is “marihuana” that is “usable” simply by virtue

of its ingestion. That argument requires a circularity of reasoning that would read into the

drafters’ definition of “usable marihuana” a component (resin) that the drafters expressly

excluded. Moreover, it ignores the fact that “usable marihuana” is not simply a combination of

the words “usable” and “marihuana”; rather, it is a term of art specifically defined by the

MMMA. We are not at liberty to ignore that definition in favor of our own. See People v

Williams, 288 Mich App 67, 74; 792 NW2d 384 (2010).

 

The drafters’ definition of the term

“usable marihuana” clearly was not intended to encompass all “marihuana” that theoretically is

“usable,” in the colloquial meaning of the term, by virtue of its ability to be ingested. Rather, as

a term of art, it is designed to identify a subset of “marihuana” that may be possessed, in allowed

quantities, for purposes of an immunity analysis under section 4 of the MMMA.7

find no support in our precedent for the notion that the amount of a controlled substance

possessed should be established by a defendant’s self-report.

 

7 The phrase “usable marihuana” in the MMMA thus refers to marijuana to which the law has

granted a qualifying patient the power, right, or privilege to use, rather than merely making

reference to marijuana that is able to be ingested, smoked, or otherwise consumed in order to

 

-8-

 

We also are not persuaded by plaintiff’s argument that our interpretation of the MMMA’s

definition of “usable marihuana” is contrary to the ordinary and customary meaning of the term.

See Kolanek, 491 Mich at 398 (“We must give the words of the MMMA their ordinary and plain

meaning as would have been understood by the electorate.”). When a statute provides a

definition of a term, we are not “left dependent upon dialect, colloquialism, the language of the

arts and sciences, or even the common understanding of the man in the street. We have the act

itself. We need not, indeed we must not, search afield for meanings where the act supplies its

own.” Butterfield Theatres v Dep't of Revenue, 353 Mich 345, 350; 91 NW2d 269 (1958); see

also Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007).

 

In defining the parameters of legal medical-marijuana use, the drafters of the MMMA

adopted a definition of “usable marihuana” that we believe comports with the voters’ desire to

allow limited “medical use” of marijuana, and yet not to allow the unfettered use of marijuana

generally. Given the heightened potency of the THC extract, as compared with “the dried leaves

and flowers,” this definition of “usable marihuana” (for purposes of establishing limited section

4 immunity) strikes us as a sound and reasoned mechanism to promote the “health and welfare of

[Michigan] citizens.” It also provides an essential mechanism for implementing the voters’

desire to continue prosecutions for possession and use of marijuana in excess of that which is

permitted for “medical use.”

 

The evidence reflects that the amount of THC contained in an edible cannot be measured,

at least not with the testing methods commonly used in police laboratories.8 Therefore, the

inclusion of such edibles within the definition of “usable marihuana,” while mandating that only

the amount of THC be counted toward the quantity limits of section 4 of the MMMA, as

defendant would have us do, would effectively eviscerate the intent of the voters in limiting

marijuana to its intended “medical use.” Given the unmeasurable nature of the highly potent

THC contained in such edibles, the health and welfare of Michigan citizens would be threatened,

and prosecutions for possession and use of edibles containing higher-than-allowed quantities of

THC would be systematically thwarted.

 

 

Our interpretation also does not preclude the medical use of marijuana by ingestion of

edibles;9 to the contrary, such use is authorized by the MMMA, within the statutory limitations,

produce a narcotic effect. See, e.g., Blacks Law Dictionary, 9th ed (2009), p 1682 (“use” may

mean “the power, right, or privilege of using something,” and “a benefit” granted by operation of

law); Random House College Dictionary, 2d ed (2000), p 1440 (“usable” may mean “available

… for use”).

 

8 The chemist testified at the preliminary exam that the chemical testing revealed “whether a

cannabinoid was present in the sample” and further stated that the analysis was “qualitative,

whether or not the substance is present, not how much.” The chemist also agreed that the testing

would not reveal the amount of THC present, “just enough that it’s detectable.”

 

9 Defendant advances such an argument with respect to counting the entire weight of an edible

toward the quantity limit of section 4 of the MMMA. Although defendant formerly argued (at

his preliminary examination) that edibles made from THC extract were not “usable marihuana,”

we can now envision an argument to the effect that, because our endorsement of that position

may result in the subjection of a possessor of such edibles to prosecution under our controlled

 

-9-

 

 

provided that the edible is a “mixture or preparation” of “the dried leaves and flowers of the

marihuana plant,” rather than of the more potent THC that is extracted from marijuana resin.

Again, we find that judgment of the drafters of the MMMA, in so defining “usable marihuana,”

to be an appropriate exercise of its duty to define the parameters of legal medical marijuana use.

“Our courts repeatedly emphasize the importance of construing a statute according to its

plain language and refraining from interfering with the Legislature’s authority to make policy

choices.” People v Adams, 262 Mich App 89, 97; 683 NW2d 729 (2004). We once again

emphasize this importance. Under the plain language of the MMMA, the brownies seized from

defendant are not encompassed within its definition of “usable marihuana.” Policy-based

arguments to the contrary are better made to the Legislature, not the courts.

 

These principles, and our reading of the MMMA, thus convince us that edibles made with

THC extracted from marijuana resin are not “usable marihuana” under the MMMA. Simply put,

the evidence before this Court indicates that the brownies were not a “mixture or preparation” of

“dried leaves and flowers of the marihuana plant.” MCL 333.26423(k). Therefore, the brownies

were not “usable marihuana” under the MMMA, and none of the weight of the brownies should

have been counted towards the determination of whether defendant possessed over 12.5 ounces

of usable marijuana.

 

VI. APPLICATION

 

Having concluded that the brownies in defendant’s possession were not “usable

marihuana” under the MMMA, we must next apply that ruling to the facts of this case and, more

specifically, to (a) defendant’s claimed immunity under section 4 of the MMMA; and (b)

defendant’s claimed right to present a defense under section 8 of the MMMA. We discuss each

in turn.

 

A. DEFENDANT IS NOT ENTITLED TO IMMUNITY UNDER SECTION 4 OF THE

MMMA

 

The language of section 4 indicates that a “qualifying patient” who has been issued and

possesses a registry identification card is immune from arrest and prosecution “for the medical

use of marihuana in accordance with this act,” provided that he or she possesses “an amount of

marihuana that does not exceed 2.5 ounces of usable marihuana.” MCL 333.26424(a)

(emphasis added). A “primary caregiver” who has been issued and possesses a registry

identification card also is immune from arrest and prosecution for “assisting a qualifying patient”

to whom he or she is connected through the applicable registration process, with the “medical

use of marihuana in accordance with this act,” again provided that the primary caregiver

possesses “an amount of marihuana that does not exceed . . . 2.5 ounces of usable marihuana”

for “each qualifying patient” to whom he or she is connected through the registration process.

MCL 333.26424 (b)(1) (emphasis added).

 

 

substance possession statutes, that finding similarly will preclude all medical use of marijuana by

ingestion of edibles. We disagree, for the reasons noted.

 

-10-

 

Notably, neither of these provisions conditions its immunity based on the qualifying

patient or primary caregiver possessing “an amount of usable marihuana that does not exceed 2.5

ounces.” If they had wished to do so, the drafters of the MMMA easily could have employed

such simple and easily understood language. Instead, each of these provisions conditions its

immunity based on the qualifying patient or primary caregiver possessing “an amount of

marihuana that does not exceed . . . 2.5 ounces of usable marihuana.” MCL 333.26424 (a),

(b)(1) (emphasis added).

 

This distinction is critical to our analysis, because it demonstrates that the drafters of the

MMMA chose to provide that, in evaluating a section 4 immunity claim, consideration must be

given not only to the amount of “usable marihuana” that is possessed, but additionally to the

amount of “marihuana” that is possessed. In other words, consideration must also be given to the

possession of “marihuana” that does not fit within the statutory definition of “usable marihuana.”

This is consistent with the MMMA’s use of the “usable marihuana” term of art to define that

subset of “marihuana” that may be possessed, in allowed quantities, for purposes of an immunity

analysis under section 4 of the MMMA.

 

 

In short, the question of whether a possessor of “marihuana” possesses an allowed

quantity of “usable marihuana” is only the beginning of the relevant inquiry under section 4. A

further pertinent and necessary inquiry, for purposes of a section 4 analysis, is whether a

possessor possesses any quantity of “marihuana” that does not constitute “usable marihuana”

under the term of art definition of the MMMA. If so, and without regard to the quantity of

“usable marihuana” that is possessed, the possessor then does not possess “an amount of

marihuana that does not exceed . . . 2.5 ounces of usable marihuana.” MCL 333.26424 (a),

(b)(1) (emphasis added). Instead, he or she then possesses an amount of “marihuana” that is in

excess of the permitted amount of “usable marihuana.” In other words, the language establishing

limited immunity in section 4 of the MMMA expressly conditions that immunity on the

possessor possessing no amount of “marihuana” that does not qualify as “usable marihuana”

under the applicable definitions.

 

 

Here, defendant was in possession of 9.1 ounces of usable marijuana. Arguably, under

the circumstances presented, defendant was entitled to possession of 12.5 ounces of usable

marijuana. Therefore, he possessed an amount of usable marijuana that, assuming that all other

requirements of section 4 were met, would have qualified him for section 4 immunity. However,

defendant also was in possession of brownies containing THC extracted from marijuana resin.

For the reasons stated, those brownies did not constitute “usable marihuana” under the statutory

definition. The parties agree, however, as do we, that the brownies did constitute “marihuana”

under its statutory definition. Possession of THC extracted from marijuana is possession of

marijuana. See People v Campbell, 72 Mich App 411, 412; 249 NW2d 870 (1976); see also

MCL 333.7106(3).

 

Therefore, defendant was in possession of an “amount of marihuana” that

exceeded the permitted amount of usable marijuana he may have been allowed to possess. By

possessing edibles that were not “usable marihuana” under the MMMA, but that indisputably

were “marihuana,” he failed to meet the requirements for section 4 immunity.

We therefore determine that the trial court reached the right result in denying defendant

immunity from prosecution pursuant to section 4 of the MMMA. We do not disturb that result.

People v Mayhew, 236 Mich App 112, 118 n 2; 600 NW2d 370 (1999) (“[W]e will not reverse

the trial court’s decision where it reached the right result for a wrong reason.”).

 

-11-

 

 

B. DEFENDANT IS ENTITLED TO ASSERT A SECTION 8 AFFIRMATIVE DEFENSE

 

Defendant argues that he was precluded from offering an affirmative defense pursuant to

section 8 of the MMMA, MCL 333.26428, by this Court’s decision in People v Anderson, 293

Mich App 33; 809 NW2d 176 (2011), rev’d 492 Mich 851 (2012). Because Anderson is no

longer good law, defendant argues, his case should be remanded to allow him to pursue an

affirmative defense according to the procedure outlined in Kolanek, 491 Mich at 393-397, and

People v Bylsma, 493 Mich 17, 35-37; 825 NW2d 543 (2012). As this issue was not raised

before the trial court (since Kolanek and Bylsma had not yet been decided by our Supreme

Court), we review it for plain error affecting defendant’s substantial rights. People v Carines,

460 Mich 750, 763-764; 597 NW2d 130 (1999).

 

 

Section 8 of the MMMA, MCL 333.26428, provides an affirmative defense to patients

and primary caregivers where it is demonstrated, inter alia, that the quantity of marijuana

collectively possessed was “not more than was reasonably necessary to ensure the uninterrupted

availability of marihuana for the purpose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms [thereof].” MCL 333.26428(2). The procedure for

asserting such a defense is for a defendant to file a motion to dismiss criminal charges and for an

evidentiary hearing to be held before trial. MCL 333.26428(3)(b). A section 8 defense therefore

“cannot be asserted for the first time at trial, but must be raised in a pretrial motion for an

evidentiary hearing.” Kolanek, 491 Mich at 411.

 

 

Section 8’s affirmative defense is available regardless of the amount of marijuana

possessed.10 That is, section 8 (unlike section 4) specifies no particular quantity limit, but

instead requires that the amount possessed be “not more than was reasonably necessary” for the

statutorily recognized purposes. MCL 333.26428(2). Additionally, Section 8 does not refer to

“usable marihuana,” but instead states that a patient and/or primary caregiver “may assert the

medical purpose for using marihuana as a defense to any prosecution involving marihuana . . . .”

MCL 333.26428.

 

10 Our Supreme Court has noted that Ҥ 4 [of the MMMA] does not permit defendants to operate

a business that facilitates patient-to-patient sales of marijuana.” State v McQueen, 493 Mich

135, 158; 828 NW2d 644 (2013). However, in McQueen, our Supreme Court did not

specifically state that the section 8 affirmative defense was unavailable for a defendant engaged

in patient-to-patient sales of marijuana, because the proceeding in that case was a public

nuisance action, not a criminal proceeding. Id. at 158-159. The rationale of McQueen may

indeed compel a determination that a defendant cannot establish the “medical purpose for using

marihuana” required by section 8(a) if that defendant possesses marijuana for the purpose of

patient-to-patient sales, especially in light of People v Green, ___ Mich ___; ___ NW 2d ___

(2013), slip op at 1, where our Supreme Court quoted McQueen with approval in reversing this

Court’s affirmance of the trial court’s dismissal of charges (presumably under section 4 of the

MMMA) against the defendant for delivery of marijuana. However, the question of whether the

section 8 defense is similarly unavailable for a defendant engaged in patient-to-patient sales is

not currently before this Court.

 

-12-

 

 

Our Supreme Court has stressed that “ections 4 and 8 provide separate and distinct

protections and require different showings,” and that “the requirements of § 4 cannot logically be

imported into the requirements of § 8 . . . .” Kolanek, 491 Mich at 401-402. Rather, “we must

examine these provisions independently.” Bylsma, 493 Mich at 28. Therefore, our decision with

regard to defendant’s claim of denial of a section 8 defense does not depend on our analysis

under section 4, our conclusion above that the brownies possessed by defendant were not “usable

marihuana” under the MMMA, or our conclusion that defendant was not entitled to section 4

immunity.

 

 

Defendant unsuccessfully argued, both during his preliminary exam and in a pre-trial

motion to dismiss, that he was entitled to dismissal of charges under section 4 of the MMMA, as

discussed in Sections IV, V, and VI, supra. Defendant did not raise a section 8 argument at any

time before trial. When the prosecution specifically requested clarification of whether defendant

was requesting a section 8 affirmative defense, defense counsel stated: “Your Honor, actually,

the prosecution may be correct in regards to allowing the particular defense; however, I think

there’s still a question of fact for the trier of fact of whether he was in compliance with the

rules.” Defendant never raised, or reserved, a section 8 affirmative defense, and plaintiff argues

that defendant specifically disclaimed any desire to assert one and, therefore, waived any right to

assert a defense under section 8.

 

However, Defendant argues that he that he did not raise this defense before trial because

the law at that time provided that a defendant must fulfill the requirements of section 4 before he

could raise a section 8 defense. See People v King, 291 Mich App 503; 804 NW2d 911 (2011),

rev’d Kolanek, 491 Mich 382 (2012). In King, this Court interpreted the MMMA as requiring a

defendant to comply with the requirements of section 4 before asserting an affirmative defense

under section 8. Id. at 510. Our Supreme Court reversed this decision in Kolanek, holding that

“the plain language of § 8 does not require compliance with the requirements of § 4.” 491 Mich

at 401. The Court further held that:

 

Any defendant, regardless of registration status, who possesses more than 2.5

ounces of usable marijuana or 12 plants not kept in an enclosed, locked facility

may satisfy the affirmative defense under § 8. As long as the defendant can

establish the elements of the § 8 defense and none of the circumstances in § 7(b)

exists, that defendant is entitled to the dismissal of criminal charges. [id. at 403.]

In Kolanek, the Court stated that a defendant must raise a section 8 defense in a pretrial

motion to dismiss. Id. at 410-411. However, the Court clarified in Bylsma, 493 Mich at 35-37,

that a defendant who moves for dismissal under section 4 could still raise a section 8 defense

before trial by filing a motion and showing a prima facie case regarding the elements of

section 8. Thus, a defendant who moves to dismiss under section 4 is not precluded from raising

a section 8 defense in a separate pretrial motion to dismiss. Id.

Defendant did not reserve the right to raise a section 8 defense or otherwise preserve this

issue for appeal.

 

No evidentiary hearing was held and no evidence concerning the requirements

of section 8 was presented. Defendant had a trial, was not permitted to present any medical

marijuana defense, and was convicted. The question for this Court is whether this result is plain

error affecting substantial rights. Carines, 460 Mich at 763-764. Defendant argues that he did

not raise a section 8 defense because the law at that time required that the requirements of

 

 

-13-

 

 

section 4 first be fulfilled. At the time of defendant’s trial in February 2012, the Michigan

Supreme Court had already granted leave to appeal in King, specifically to consider whether the

requirements of section 4 must be met to raise a section 8 defense. People v King, 489 Mich

957; 798 NW2d 510 (2011).

 

 

“[A] Supreme Court order granting leave to appeal does not diminish the precedential

effect of a published opinion of the Court of Appeals.” MCR 7.215©(2). However, changes to

criminal law are generally given retrospective application to cases pending on appeal as of the

date of the filing of the opinion containing the new rule. See People v Hampton, 384 Mich 669,

673, 678; 187 NW2d 404 (1971). Here, defendant filed his claim of appeal on April 30, 2012.

Kolanek was decided on May 31, 2012. Kolanek, 491 Mich at 382. We therefore conclude that

defendant is entitled to the retrospective application of Kolanek.

 

 

The Kolanek Court noted that this Court’s interpretation of the MMMA in King rendered

section 8 a nullity. Kolanek, 491 Mich at 403. Thus, because the state of the law at the time this

case was pending rendered section 8 a nullity, and the state of the law changed during the

pendency of defendant’s appeal, we conclude that defendant was deprived of a substantial

defense and has demonstrated plain error. As stated above, the language of the MMMA allows

defendant to assert “the medical purpose for using marihuana as a defense to any prosecution

involving marihuana,” MCL 333.26428; thus defendant may attempt to assert this defense to his

prosecution for possession with intent to deliver as to both the raw marijuana and the edibles

containing THC that were found in his possession.11

 

In that regard, we note that, unlike with respect to section 4 immunity, the MMMA does

not condition the availability of a section 8 affirmative defense on the possession of only a

limited quantity of “usable marihuana.” Rather, a section 8 defense may be available without

regard to whether the “marihuana” possessed was “usable marihuana,” and without regard to the

quantity possessed. Further, the considerations that caused the drafters of the MMMA to so

condition the broader immunities afforded under section 4 may not exist in a particular

individual circumstance giving rise to the assertion of a section 8 affirmative defense. For

example, if in an individual circumstance a particular qualifying patient suffers from a serious or

debilitating medical condition (or symptoms thereof) such that treatment or alleviation requires

the medical use of marijuana, even in a form comprised of a mixture or preparation of THC

 

11 Plaintiff argues that defendant explicitly waived his right to a section 8 defense. Defendant

did make statements at his preliminary examination to the effect that he was not seeking a

section 8 defense. However, waiver is “the intentional relinquishment or abandonment of a

known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and

citations omitted) (emphasis added). Given the law at the time, we will not fault defendant for

pursuing a section 4 defense prior to any section 8 defense; as noted above, a defendant is not

precluded from raising a section 8 defense in a separate pretrial motion. Bylsma, 493 Mich at

35-37. Once his section 4 motion was denied, as the law existed at the time, defendant would

have had no reason to pursue a section 8 defense. Thus we conclude his failure to do so was not

“waiver” of that defense, nor were his statements made at the beginning of proceedings against

him.

 

 

-14-

 

 

extracted from the resin of a marijuana plant (and that thus would not qualify a patient or

primary caregiver for section 4 immunity), then the patient and/or his or her primary caregiver

may be entitled to assert a section 8 affirmative defense, provided that it is demonstrated that the

amount of such marijuana possessed was “not more than was reasonably necessary” for the

statutorily recognized purposes (and provided that the other conditions of section 8 are met).

This is not to say that establishing a section 8 defense under such circumstances would be an

easy task; to the contrary, we suspect that the bar to establishing such a defense under those

circumstances indeed would be a high one, and one that would become increasingly higher as the

amount and/or potency of the marijuana possessed increases. That said, however, section 8

affords a qualifying patient and/or primary caregiver an opportunity to demonstrate the

satisfaction of the statutory conditions for asserting such a defense, even under those

circumstances.

 

 

However, we conclude that the appropriate remedy is not to simply grant defendant a

new trial. Rather, defendant is entitled to an evidentiary hearing to establish whether he is

entitled to assert a section 8 defense. If, following an evidentiary hearing, no reasonable juror

could conclude that a defendant has satisfied the elements of a section 8 defense, then the

defendant is precluded from asserting the defense at trial. Kolanek, 491 Mich at 412. Before

vacating defendant’s conviction and ordering a new trial, it would thus behoove this Court to

know whether defendant would in fact be able to assert the defense at trial (or indeed is entitled

to dismissal of the charges against him). We therefore remand this matter so that defendant may

file a motion to dismiss the charges against him, and for an evidentiary hearing to be held as to

the prima facie existence of the elements of a section 8 defense. If defendant cannot meet this

burden, his conviction will stand. Id. If defendant meets this burden without any question of

fact, he will be entitled to dismissal of the marijuana possession charge. Id. If defendant

establishes evidence of each element listed in section 8 but there are still material questions of

fact, then he will be entitled to a new trial and the submission of this defense to the jury. Id.

 

 

VII. CONCLUSION

 

 

In light of the plain language of the MMMA, we conclude that the brownies possessed by

defendant were not “usable marihuana” under the MMMA. Therefore, we further conclude

(although under a different rationale than that of the trial court or that advanced on appeal) that

the trial court did not err in denying defendant immunity from prosecution under section 4 of the

MMMA. However, because the state of the law changed during the pendency of defendant’s

appeal, he is entitled to move the trial court for dismissal and an evidentiary hearing on his

ability to assert an affirmative defense under section 8 of the MMMA.

Vacated and remanded for further proceedings consistent with this opinion. We retain

jurisdiction.

 

 

/s/ Mark T. Boonstra

/s/ Michael J. Kelly

/s/ Christopher M. Murray

Court of Appeals, State of Michigan

 

 

ORDER

 

People of the State of Michigan v Earl Cantrell Carruthers

Docket No. 309987

LC No. 2011-237303-FH

Michael 1. Kelly

Presiding Judge

Christopher M. Murray

Mark T. Boonstra

 

Judges

 

 

 

Pursuant to the opinion issued concurrently with this order, this case is REMANDED for

further proceedings consistent with the opinion of this Court. We retain jurisdiction.

Proceedings on remand in this matter shall commence within 56 days of the Clerk's

certification of this order, and they shall be given priority on remand until after they are concluded. As

stated in the accompanying opinion, we remand this case to the trial court to allow defendant to file a

motion to dismiss the charges against him pursuant to MCL 333.26428, and for an evidentiary hearing to

be held on that issue. Should defendant make out a prima facie case of all of the elements of an

affirmative defense under Section 8 of the Michigan Medical Marihuana Act, his conviction shall be

vacated and the charges against him dismissed. Should defendant not meet this burden, his conviction

stands. If the defendant establishes evidence of each element listed in § 8 but there are still material

questions off act, then he is entitled to a new trial and the submission of this defense to the jury.

The parties shall promptly file with this Court a copy of all papers filed on remand.

Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

 

The transcript of all proceedings on remand shall be prepared and filed within 21 days

after completion of the proceedings. Upon remand, this Court will enter an order either affirming

defendant's conviction, vacating defendant's conviction, or granting defendant a new trial.

A true copy entered and certified by Angela P. DiSessa, Acting Chief Clerk, on

Date

 

~fJ ~ 1; Se~~~

Acting Chief Clerk

JUl n 2013

Edited July 12, 2013 by Murph

[Murph]

The Court of Appeals FINALLY read the MM Act !

Amazing.

 

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

July 11, 2013

9:05 a.m.

 

Oakland Circuit Court

PEOPLE OF MICHIGAN v EARL CANTRELL CARRUTHERS,

LC No. 2011-237303-FH

 

Before: M. J. KELLY, P.J., and MURRAY and BOONSTRA, JJ.

BOONSTRA, J.

See other post on this list for complete text of decisions -- bunch of legaleese -- but it is good for "US" !!

Burn one for the Guy !!

 

Murph

Edited July 12, 2013 by Murph

[Murph]

The most important part of the above Decision (but the down side is the decision will not be widely applied - lets hope the Mi Sup Crt upholds and affirms the decision here):

 

In light of the plain language of the MMMA, we conclude that the brownies possessed by

defendant were not “usable marihuana” under the MMMA. Therefore, we further conclude

(although under a different rationale than that of the trial court or that advanced on appeal) that

the trial court did not err in denying defendant immunity from prosecution under section 4 of the

MMMA. However, because the state of the law changed during the pendency of defendant’s

appeal, he is entitled to move the trial court for dismissal and an evidentiary hearing on his

ability to assert an affirmative defense under section 8 of the MMMA.

Vacated and remanded for further proceedings consistent with this opinion. We retain

jurisdiction.

[Hayduke]

no Murph it is a big narrowing of acceptable...

 

actually sucks big time

 

take a look at the other thread about this decision....

Edited July 12, 2013 by Hayduke

[bobandtorey]

You can still use Sec 8 if the judge lets you

[Murph]

no Murph it is a big narrowing of acceptable...

 

actually sucks big time

 

take a look at the other thread about this decision....

 

I have not looked at what other people are saying for the simple reason it does not matter. Opinions are like......everyone has them and they all stink.

 

One has to know how to read decisions (or statutes or anything legal). It's not like reading a book and even Judges and Court's disagree and get overruled --

it's not easy -- but for this guy this is a good decision (anytime we have a "win" it is good...momentum) and for the rest of us it is a good decision (caveat, I have

just done one read, so some in depth analysis is forthcoming -- but no one can say this is bad when the State looses)!

 

The State argued that the entire weight of an edible -- every oz. of the edibles --- were to be counted as Marijuana because it had SOME marijuana in it  --

 

the COA shot that down. So how it that bad?

 

How does it narrow what was previously the case (or law) where the entire weight of an edible is  Marijauna - an example is good.

You have 1 gram of MM. The dough (ever felt how heavy dough is?), butter and other ingredients  before you mix them is 100 Oz.

The minute you mix them you no longer have 1 gram of MM - you have 100 Oz AND a gram of Marijuana.

 

They (the COA) just threw that out and said none of it is "usable marijuana" --

 

Plus, even though the Guy's Trial Lawyer did not argue Sect. 8 affirm. defense, He (the Defendant) gets to go back and try to prove it. That too is good.

 

So, how is any of this "bad"?

 

Please be specific

 

Using words such a "narrow" does not mean anything  as it must be in the context of what the case was BEFORE the Decision. He won. The State lost for the most part.

 

M

Edited July 12, 2013 by Murph

[GregS]

It is a narrowing of sec. 4, but has no effect on sec. 8.

 

That about right?

Edited July 12, 2013 by GregS

[Murph]

Case PDF link

 

 

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130711_C309987_37_309987.OPN.PDF

 

 

M

[t-pain]

i got a reply from a reporter at the livonia observer interested in the increase in fees for patients.

he is especially interested in any livonia residents with this problem.

 

if anyone wants me to pass along contact info, please pm me.

or i can pass his email along to you.

 

anyone know any patients in livonia who want to talk to a reporter about the fee increase for people on SSD ?

[Murph]

I don;t think it narrowed Sect. 4 - said He could not use it -- so it had no impact on Sect. 4 defense.

What the Trail Court's reasons were We would need the Trail Court decision (the one they appealed from its in the COA file but usually not online).

 

If any one knows Him, He should have a copy to post - they are all public records. All this denying of Affirm. Defenses is wrong to begin with - thats why they are called "affirmative"

the rulings somehow you must "qualify" for it is nonsense, I agree, but We know it and can work around it -- like having so many locks its anal - isn't a House a "locked enclosed facility"

to begin with ? Da -- someone should askthe Judges if their House is locked and enclosed. Thats what I mean by Jerks -- sometimes these so-called Judges just, like some that are so

obvious it is silly - want to make it all illegal.....

 

They can only be corrected by Voting them out of their Judgeship --so I hope everyone keeping files and cases and clippings for the Elections - that is the real power. Just vote them out!

 

 

M
 

[Murph]

i got a reply from a reporter at the livonia observer interested in the increase in fees for patients.

he is especially interested in any livonia residents with this problem.

 

if anyone wants me to pass along contact info, please pm me.

or i can pass his email along to you.

 

anyone know any patients in livonia who want to talk to a reporter about the fee increase for people on SSD ?

T-Pain,

 

Make sure you have read the reporters prior articles. If they are anti-MM they should be avoided completely (as in boycott).

On the other hand, if they are sympathetic or in the "pro" MM column, then by all means. But they should only use code names, not real names

to protect people - as soon the LEO reads the paper they head over to that persons house-- make sure they agree IN WRITING to keep people who agree anonymous and

will never disclose who they are (even if that means going to jail).

 

protecting their sources is usually a Reporters #1 job.

 

M

[bobandtorey]

the trial court did not err in denying defendant immunity

this say's it all

[t-pain]

good points murph.

 

i saw one mm article by the reporter and it was just straight news on a township's ordinances.

so we'll find out later.

 

still its better than zero responses from the various radio, tv and paper outlets i tried.

[Dr. Bob]

There is a link related to the case, this is about the SSD issue.  Let's not co-mingle them.

 

dr. bob