Meeting In Lansing 7 16 13

[GregS]

Here is something to use. If what someone is saying sounds too good to be true, it probably is.  Real simple.

This could not be more true.

Edited July 22, 2013 by GregS

[bobandtorey]

I apologize if cross posting is frowned on, but this belongs here. It is published with acknowledgement to the author, Greg Schmid:

 

DEFENDANT’S ASSERTION OF MICHIGAN MEDICAL MARIHUANA ACT

MEDICAL PURPOSE AFFIRMATIVE DEFENSE AND MOTION TO DISMISS

What You Need To Prove; How and When to Prove It.

Citation of the law: Cite as the Michigan Medical Marihuana Act

Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of the affirmative defense,

and crates a presumption of validity of the defense where a showing is made as to its elements. “Patient and a patient's

primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving

marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense.” Generally, in

asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence.

At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must

show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.

Statutory authority to bring a motion to dismiss, and mandatory dismissal:

Section 8(b) establishes the statutory authority for a motion to dismiss. “A person may assert the medical purpose for

using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the

person shows the specified elements of the defense.” The showing must prove the elements by a preponderance of the

evidence, and where this showing is made the dismissal is mandatory.

Standing and Scope of the Affirmative defense:

The affirmative defense is available to the following people:

• Any “patient” who demonstrates the patient's medical purpose for using marihuana pursuant to this section; or

• Any patient's “primary caregiver” who demonstrates the patient's medical purpose for using marihuana pursuant

to this section.

The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of

marihuana or paraphernalia, in these proceedings:

• Any prosecution involving marihuana [section 8(a)]

• Any disciplinary action by a business or occupational or professional licensing board or bureau [section 8©1]; or

• Forfeiture of any interest in or right to property. [section 8©2]

Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging

in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that

apply to the Section 8 affirmative defense and to the Act’s other more prophylactic immunities for registry participants.

The defense may not be asserted for any of the following:

• Smoking marijuana “in any public place”;

• Smoking marijuana on any form of public transportation;

• Any use by a person who has no serious or debilitating medical condition;

• Any conduct where being under the influence would constitute negligence or professional malpractice per se;

• Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under

the influence of marihuana.

• Any use or possession in a school bus;

• Any use or possession on the grounds of any preschool, primary, or secondary school;

• Any use or possession in any correctional facility;

Elements of the Affirmative Defense (3 prongs):

1. The Gatekeeper’s Statement [section 8(a)1]:

• A physician (Licensed MD or Osteopath)

• has stated that

• in the physician's professional opinion

• after having completed a full assessment of

• the patient's medical history and

• patient's current medical condition

• which assessment was made in the course of a bona fide physician-patient relationship

• that the patient is likely to receive therapeutic or palliative benefit

• from the medical use of marihuana

• to treat or alleviate

• the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical

condition

2. The Reasonably Necessary Quantity [section 8(a)2]:

• The patient and the patient's primary caregiver, if any, were collectively

• in 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 or debilitating medical condition or symptoms of the patient's serious or debilitating medical

condition

3. The Medical Purpose [section 8(a)3]:

• The patient and the patient's primary caregiver, if any,

• were engaged in the

• acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or

paraphernalia relating to the use of marihuana

• to treat or alleviate

• the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical

condition.

 

 Methods of Proving the Elements of the Defense at Evidentiary Hearing   

Proving the Physicians’ statement: On the Cheap.   It is essential that this defense be presentable without live testimony from the doctor. The court will likely make defendant prove the “physician” is licensed, and so a certified record should be obtained early to avoid an MRE 902 emergency. Technically the patient can prove that the physician statement was made without hearsay objection, as the fact that the statement was made is the operative fact in question. As the law does not allow a Judge to second guess the physician[s professional opinion in this regard, so the defendant need only prove the statement was made, not whether it was reasonable.   However, prosecutor will argue that defendant needs also to prove that the statement was a considered one, and that may not be so easy.     The prosecutor will argue that the statute provides the statement must be made “after having completed a full assessment of the patient's medical history and patient's current medical condition”, and that must being the course of a bona fide physician patient relationship. The defendant can testify on personal knowledge that he was there and observed the “complete assessment” taking place, and can establish the bona fide relationship, but will the showing be of sufficient weight to pass the preponderance test? Who is a patient to judge what constitutes a full assessment by a doctor? The Patient can testify that the doctor said he completed the full assessment, but if the question of whether that full assessment really took place is in issue, then such testimony would be hearsay because is would be offered to prove the truth of the matter asserted – that the full assessment was made.   Three solutions present themselves. MRE 803(6) Hearsay exception for regularly kept business records could get written medical reports into evidence to prove the complete assessment occurred, and even the bona fide relationship. This would merely require compliance with MCL 902(11), and the assumption that the doctor wrote it all down. [see MRE 902(11)] Certified records of regularly conducted activity.  The original or a duplicate of a record…of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a w r i t t e n d e c l a r a t i o n u n d e r o a t h b y i t s c u s t o d i a n o r o t h e r q u a li f i e d p e r s o n certifying that….the record is contemporaneous to the complete assessment, in the course of regular activity, and according to regular practice. Counsel should obtain this affidavit early, as prior notice of the declaration is a condition to self authentication. Of course, if seems obvious but that MRE 

803(4) would apply. “ Statements made for purposes of medical treatment o r m e d i c a l d i a g n o s i s i n c o n n e c t i o n w i t h t r e a t m e n t. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”   However, counsel may be confronted with the argument that the rule admits patient statements made to aid in diagnosis, not those of the Doctor made to express the completeness of the doctor’s assessment. Counsel may simply wish to argue that the element should be interpreted to mean that the “statement made” language includes the statement that the doctor made a full assessment of the history and current condition. That is, that he has stated,  “that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician patient relationship, the patient is likely….” In this interpretation, the patient’s testimony would be admissible to establish the entire element, and sound something like this, “He stated he had made a full assessment of my medical history and current condition, and that he had formed a professional opinion…, which was that I was likely to receive therapeutic or palliative benefit from the use of marijuana to (treat or alleviate) my (serious medical condition or debilitating medical condition or symptoms thereof).”

This is all great but why didn't it go this way for us?

[CaveatLector]

This is all great but why didn't it go this way for us?

Did you bring a sec.8 motion to dismiss?

[bobandtorey]

Did you bring a sec.8 motion to dismiss?

Yes and it was dismissed

[GregS]

This is all great but why didn't it go this way for us?

We were hoping you could explain it to us Bob.

[bobandtorey]

We were hoping you could explain it to us Bob.

Witch part?

[knucklehead bob]

This is all great but why didn't it go this way for us?

I am out of the loop . Did you or did you not plead guilty ?

[GregS]

Witch part?

(holds head in hands)

[bobandtorey]

I would never say that on here

[CaveatLector]

Yes and it was dismissed

My understanding is that you did not bring a section 8 motion in circuit court, rather, your case was dismissed at the preliminary exam stage in district court.  Please correct me if I am wrong.  I was unaware that you held a section 8 hearing.

[knucklehead bob]

Yes and it was dismissed

Hip Hip Hooray . The first successful Section 8 dismissal in Oakland County . Is there going to be a Greentrees Special ? Congradulations on your dismissal bobandtorey . 

Edited July 22, 2013 by knucklehead bob

[CaveatLector]

So I, once again, combed through the Redden register of actions from the circuit court.  I see no section 8 motion.  There was no section 8 motion Bob. 

 

You are likely referring to your attorney attempting to get the case dismissed at the district court level.  Apparently the attorney put forth some section 8 material there.  But, as the COA told us, it did not meet the requirements of section 8.  One such requirement was the showing that the amount possessed was necessary to insure an uninterrupted supply.  There was no mention of that at all in district court (according to the COA) and yet the dist. ct. judge still dismissed on section 8 grounds.  That was an abuse of discretion by the dist. ct. judge.

 

Whether your attorney was even trying to get it dismissed on a sec 8 at the prelim exam stage is anyone's guess.  I'm not so sure he was.  I think he may have put forth some sec 8 argument and the judge mistakenly dismissed based on sec 8.  My point is that your attorney isn't necessarily to blame that all requirements of sec 8 were not shown at the prelim.  Your attorney may have been trying to make a record that would be useful in a circuit court sec 8 hearing and then just stumbled on a dismissal by a judge not paying attention.

 

At any rate, there was NO section 8 hearing.  Although, please, correct me if I am wrong.  All I saw was an incomplete "attempt" at a sec 8 during the prelim exam stage.

[Dr. Bob]

At what point does a member become so obstructive and dangerous that we have to send him/her away.  I am sorry Greg but your stripes have never changed.  You have been trying (unsuccessfully) to capitalize upon this law since day one.  In Saginaw you know what Bob said to be true, do not sit here and pretend different.  You are dangerous and I sure hope others are careful in signing on with you.  

 

 

 And Phaq, the silverback family has been enjoying the weather on the water and on two wheels brother.

 

 

Personally, I've backed everything I said up with facts and pointed out how your argument about section 8 is akin to saying as long as you pick the right numbers you will win the lottery.

 

Your only defense to the corrections you get is to demand copies of posts, copies of CV's, copies of this, that and the other thing.  You are being obtuse as Cell mentioned, it is a very good word to describe your actions.  Obtuse and when you have your tail handed to you, as you have repeated by smarter folks than I, you resort to name calling and simply repeat your same, disproven, position again.

 

This is a waste of good binary.  Off to actually do something important and get Mal set up to speak at the GCACC meeting.

 

Have fun with your little experiment Greg, I hope no one goes down with you.  We'll follow you case in the papers.

 

Dr. Bob

 

To answer the first, when it becomes clear someone is so clueless that they endanger others.  When they hijack threads to try and repeat bad information so many times that people begin to think black is white and their point must have some validity 'because it is all over the net'.  

 

Again, the problem here is that Greg's entire unproven argument hinges on 'non registered caregivers' being able to sell to an unlimited number of patients and section 8 somehow will 'protect and allow' this activity so he can have a farmers market as he wanted in Saginaw.  Translation, so he can make money at the risk of the 'unregistered caregivers' that rent tables from him.  His only defense is to keep repeating the same 'meet the three prongs of section 8 and they must dismiss.

 

The fallacy is that in order to get your case dismissed under section 8 you must be arrested and prosecuted first, something he is not willing to do himself, he wants others to be the test cases.  Second caregivers have to have a registry connection to their patients, the courts have ruled that repeatedly and even a superficial reading of the law shows that when they are talking about patients and primary caregivers, the registry connection is clearly implied.

 

The final deathblow to this 'theory' is that if it were true, that there was no need for a registry connection, WHY WOULD ANY CAREGIVER REGISTER other than to get section 4 immunity?  More importantly, why would the deep pocket and well lawyered dispensary faction not have seized on this and successfully defended it years ago?  You think they are too stupid to have come up with this (and all the associated income) on their own?  If it was workable and safe they would have done it already.

 

Greg, it is high time you start listening to folks that know far more about this subject than you rather than go off on your own irrational tangent- Right now the only take home message you are giving to the readers of this thread is that you have a fixation on a wrong premise and are manic about defending it.  Toss in that you stand to make a lot of money with it by getting others to take the fall to 'test' your theory.

 

I and many others here, who actually have experience with these matters, aren't buying it and are not going to waste time refuting a position you haven't proven or tested.

 

As noted earlier, this is simply legal darwinism.  We'll follow your case in the papers.  The system will eventually cull you if you don't end up getting banned first (because right now the only people that are convinced of anything when it comes to you is the LEO that are reading this and licking their chops to take you down).

 

Dr. Bob

[GregS]

Hey celli. B*B needs to be told to stay away from the topics I am prohibited from posting on.

 

So, the people who know far more than I are you, celli, and SFC? All three of you. That's rich.

 

Won't you please answer the questions that have been asked the last couple of days? To refuse is dishonest.

 

Where is your proof that I wanted a farmers' market in Saginaw?

 

It is the law that says meet the 3 prongs and the case must be dismissed.

 

The law says, and the courts have ruled, that registration is NOT required under sec. 8, to include a patient and the patient's caregiver. See the above post that you conveniently ignore.

 

Caregivers can and do register for the protection available under sec. 4. I do not argue that they should not. It is less than honest to fail to point to the alternate sec. 8.

Edited July 22, 2013 by GregS

[bobandtorey]

Hip Hip Hooray . The first successful Section 8 dismissal in Oakland County . Is there going to be a Greentrees Special ? Congradulations on your dismissal bobandtorey . 

that was back in 2009

[CaveatLector]

that was back in 2009

So what you are saying is that you didn't bring a section 8 motion in circuit court.  Yet you keep pounding the same drum and telling everyone that it doesn't work . . .

[Dr. Bob]

Hey celli. B*B needs to be told to stay away from the topics I am prohibited from posting on.

 

So, the people who know far more than I are you, celli, and SFC? All three of you. That's rich.

 

Won't you please answer the questions that have been asked the last couple of days? To refuse is dishonest.

 

Where is your proof that I wanted a farmers' market in Saginaw?

 

It is the law that says meet the 3 prongs and the case must be dismissed.

 

The law says, and the courts have ruled, that registration is NOT required under sec. 8, to include a patient and the patient's caregiver. See the above post that you conveniently ignore.

 

Caregivers can and do register for the protection available under sec. 4. I do not argue that they should not. It is less than honest to fail to point to the alternate sec. 8.

So why don't you tell everyone why you refer to me as B*B Greg?  Getting old.  Resorting to name calling when I demolish your pet theory.  Really.

 

Dr. Bob

[abe supercro]

I think Buckaroo f*rst darted that. Pet names are fun when someone keeps giving you are hard time and calling you names like say, "manic fool" (Oops ***) >noticing the hipocracy as the world turns.

[GregS]

I think Buckaroo f*rst darted that. Pet names are fun when someone keeps giving you are hard time and calling you names like say, "manic fool" (Oops ***) >noticing the hipocracy as the world turns.

I thought Townsend explained it pretty well a few weeks back.

Edited July 22, 2013 by GregS

[GregS]

Again Celli. Why does this guy get a pass on insults?

[SFC]

Greg, don't be silly. You know you were hawking the locker system from darn near day one.  I don't believe it was a coincidence that as soon as Resto was out of the way in Saginaw/Bay City you teamed up with John Roberts with no intent of creating a FM/dispensary. That is in fact exactly what you did.  Now, obviously JR went in another direction and left you hanging in the breeze but lets not pretend that you just couldn't go along with what they were doing.  

[SFC]

I am not trying to call anyone names, but Greg you know you have something wrong upstairs. Seriously bro..

[GregS]

I am not trying to call anyone names, but Greg you know you have something wrong upstairs. Seriously bro..

You know this how?

[SFC]

From personal interaction with you #1 and #2 from four years of reading your postings.  Nuff said..

[GregS]

Greg, don't be silly. You know you were hawking the locker system from darn near day one.  I don't believe it was a coincidence that as soon as Resto was out of the way in Saginaw/Bay City you teamed up with John Roberts with no intent of creating a FM/dispensary. That is in fact exactly what you did.  Now, obviously JR went in another direction and left you hanging in the breeze but lets not pretend that you just couldn't go along with what they were doing.  

The fact is that I could not go along. The locker system was a topic for lively debate, which is the reason I thought we are here. The idea originated with Schmid.