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How To Maximize Your Chances Of A Successful Section 8 Defense


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I know section 8 discussions have always been considered a "grey area" on this board, but now that anyone who uses anything but dried flower or leaves is in dire legal jeopardy, the time for a serious discussion about section 8 has arrived. This is serious. Many patients have a medical condition which does not allow the narrow use permitted by section 4. What steps can patients take to optimize their chance of successfully using a section 8 defense in court?

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guessing:

1.  have $50K in cash or double that in asssets, and a relationship (retainer) with a name mmj atty with a conversation re: your possible future need of his services for Section 8.

2.  have in successive years the same doctor certify you.

3.  have your amounts on hand at least within the realm of reasonability for amounts and treatment for similar conditions as yours, with your doctor having made detailed notes re the medication plan updated at your last certification.

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king/kolanek ruling stated whats required for a section8 defense.

 

going from memory, there are 3 prongs:

1. resident of michigan, doctors recommendation after the MMMA was passed in 2008

2. using it for medical purpose, and the amount is reasonable for your medical purpose.

3. the doctors rec has to be made before using marijuana/being arrested. "has stated"

 

section 8 defense should be made in a pre-trial "motion to dismiss".

there is case law that says the motion has to be made, even if the idiot judge says not to.

because if you dont make that motion, you wont be able to appeal or some stupid crap.

so make sure you make that motion, no matter what. you can appeal later if judge rejects it.

 

from king/kolanek:

 

This last requirement is significant
because it indicates that the § 8 defense cannot be asserted for the first time at trial, but
must be raised in a pretrial motion for an evidentiary hearing.

successful sec8 defenses in the past have used the patients as a witness (for a caregiver)

who explain how much marijuana they use.

 

in some cases, the paper document recommendation was enough to satisfy one of the three prongs.

in another case, especially bobandtoreys, the prosecutor/court ordered their doctor to testify.

 

in the evidenciary hearing that follows the sec8 motion, you will have to provide evidence.

i've not been to any section8 hearings, so i'm going on guesses.

this can be written or oral testimony from you, your doctor, your patients, your caregiver, etc.

 

if you are over on limits, read the part of section 8 out loud

 

(2) The patient and the patient’s primary caregiver, if any, were
ollectively in possession of a quantity of marihuana that was not more than
as reasonably necessary to ensure the uninterrupted availability of
marihuana for the purpose of treating or alleviating the patient’s serious or
ebilitating medical condition or symptoms of the patient’s serious or
ebilitating medical condition; and

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king/kolanek ruling stated whats required for a section8 defense.

 

going from memory, there are 3 prongs:

1. resident of michigan, doctors recommendation after the MMMA was passed in 2008

2. using it for medical purpose, and the amount is reasonable for your medical purpose.

3. the doctors rec has to be made before using marijuana/being arrested. "has stated"

 

section 8 defense should be made in a pre-trial "motion to dismiss".

there is case law that says the motion has to be made, even if the idiot judge says not to.

because if you dont make that motion, you wont be able to appeal or some stupid crap.

so make sure you make that motion, no matter what. you can appeal later if judge rejects it.

 

from king/kolanek:

 

 

in some cases, the paper document recommendation was enough to satisfy one of the three prongs.

in another case, especially bobandtoreys, the prosecutor/court ordered their doctor to testify.

 

in the evidenciary hearing that follows the sec8 motion, you will have to provide evidence.

i've not been to any section8 hearings, so i'm going on guesses.

this can be written or oral testimony from you, your doctor, your patients, your caregiver, etc.

 

if you are over on limits, read the part of section 8 out loud

http://vimeo.com/60272365

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kingpinn won in the supreme court, but hes still in the lower court, over 1500 days now!

 

thats why the forum tries to get people to stay within limits, so they dont have to rely on section 8.

why they are dragging king's case out so long ,we dont know.

i think we know why 

i do because we have lived it and until people do they wont know and i also don't think he is in the Lower court

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Was within all my limits it was the roof thing on the dog pen they were attacking and I think the doc relationship thing but I have been in limbo sense March 07

You still think it's about a roof thing ?

thats where you go wrong Mr. King it has nothing to do with a roof and everything to do with Marihuana

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kingpinn won in the supreme court, but hes still in the lower court, over 1500 days now!

 

thats why the forum tries to get people to stay within limits, so they dont have to rely on section 8.

why they are dragging king's case out so long ,we dont know.

kingpinn won in the supreme court you think he won? 

then you much think we won in the C.O.A because their the court ruled you don't need a card but must have your Rec before the raid and we did

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I know section 8 discussions have always been considered a "grey area" on this board, but now that anyone who uses anything but dried flower or leaves is in dire legal jeopardy, the time for a serious discussion about section 8 has arrived. This is serious. Many patients have a medical condition which does not allow the narrow use permitted by section 4. What steps can patients take to optimize their chance of successfully using a section 8 defense in court?

After testimony from a Southfield clinic doctor who recommends medical marijuana, a judge in the 43rd District Court in Madison Heights has dismissed felony manufacturing charges against a Madison Heights couple, who were growing plants they thought were legal under the state’s medical marijuana law.

 

At issue was whether Robert Redden, 59, and Torey Clark, 47, could use a letter from their doctor as authorization to grow a legal number of plants in the absence of the state-sponsored ID program.

 

The couple and their attorneys Matthew Abel and Bob Mullen argued that the letter, which the couple received March 3, was sufficient, whereas Madison Heights police and the Oakland County prosecutor’s office said it was not.

 

Judge Robert J. Turner reluctantly dismissed the charges, calling the voter initiated legislation “the worst piece of legislation I’ve ever seen.”

 

In March, police seized 21 plants from the couple. Redden and Clark were among the almost 2,000 people who applied to use and grow medical marijuana in Michigan. They were also among the roughly half who fell into a legal black hole where they had letters from doctors recommending the use of marijuana, but not the state-issued cards that make it legal.

 

The law went into effect in 2008 after the ballot calling for it passed in the November elections. However, some people who have cards now face legal questions because the state took months to launch its ID program after the law went into effect. Redden and Clark did not have an ID card because of the delay.

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In the wake of the King/Kolanek decisions, we have been given an opportunity to present our cases, our medical purpose affirmative defenses, to a judge in an evidentiary hearing seeking either dismissal or a chance to present the defense to a jury. These are Section 8 hearings, referring to the section of the Michigan Medical Marijuana Act that contains the affirmative defense. MCL 333.26428. In the military, a section 8 refers to a member of the military who is being discharged due to insanity or craziness. Ironically, the medical marijuana section 8 hearings have led to crazy issues and questions. One of the most pressing is this:

When a defendant is advocating that he should have his case dismissed, should he be deprived of a defense when a judge concludes that the certifying doctor did not conduct a “full assessment”, etc.?

This is a challenge facing defendants (patients and caregivers alike) in medical marijuana cases. It should resolved easily in favor of the patients and caregivers. The answer should be “No”, a defendant may still present the defense even if the doctor was incompetent or if the doctor failed to perform as required by the MMMA.

MCL 333.26428(a)(1) provides as follows:

A physician 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 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.

The key words should be “has stated.” This is a patient and caregiver driven law. And while a doctor has a certain duty or responsibility, the patient must, in my opinion, come first. This means that once a doctor or physician “states” his opinion, the patient is allowed to rely on it. If a patient in reliance on a doctor’s recommendation or opinion could be denied the defense due to the doctor’s failure’s or shortcomings, something is amiss. A couple of thoughts come to mind.
First, the patient would be entrapped into the commission of a crime if he was denied of a defense. In reliance on a doctor’s recommendation, the patient began to use marijuana. Were he to have relied on that recommendation and the law to only be deprived of this defense later smacks of entrapment by estoppel or governmental estoppel.
Additionally, the patient is not a physician and cannot oversee the physician performing the evaluation/certification. Were patients denied of the affirmative defense due to a doctor’s incompetence, a patient would need to oversee the doctor’s medical examination in order to ensure that the doctor fully complied with the terms of §8, the defense. Do we want or expect patients to oversee the physicians who performing the examinations? Imagine the results: “excuse doctor but you need to take my vitals again, and look at these charts, etc. ad nauseam.” The clear and unequivocal answer, the only answer the makes sense, is “no.” Patients are allowed to rely on their physicians evaluations and recommendations. Period.

Section 8(a)(1) contains two words that make this point clear: “has stated.” All that is required in order for the defense to be available to the patient is that he “has stated” in his opinion that medical marijuana will alleviate or treat a serious or debilitating condition or the symptoms of a serious or debilitating condition. “Has stated” — in other words, once the doctor states as much, the patient should be able to rely on that statement and obtain his dismissal or defense.

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It's not considered a grey area here.  We just do not condone using Section 8 over Section 4.

 

 

Yea but pretty tough when that is almost all you have. Better get used to section 8 because thats where everyone is headed. Unfortunately.

Edited by ozzrokk
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So any caregiver who supplies his/her patient (to whom they are connected through the registry) with ANYTHING but dried flowers or leaves had better verse themselves on section 8 and how to best use it. At first section 8 was delegated to those who would be foolish enough to engage in unregistered caregiver to patient transactions, now it applies to EVERY CAREGIVER who supplies their registry connected patient with anything but leaves or bud (only dried, of course)

Edited by Natesilver
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 At first section 8 was delegated to those who would be foolish enough to engage in unregistered caregiver to patient transactions

Sorry this was not the case of us

two people with Rec's under plants under weight locked up

 

I apologize Bob. That was not what I intended to say. I should have prefaced that statement with a qualifier indicating it was regarding section 8 conversations on this site concerning unreg cg to p transfers. I intended to imply that narrow set of hypothetical conversational section 8 concerns now applies to all caregivers who supply their registry connected patients with anything but dried buds and leaves.

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No worries

imho Sec 8 applies to all of us if you end up in court and that also may end soon if the S.C rules against that because theirs a case up their right now that could end this Law

it's just my opinion

 

 

The Supreme Court has said over and over you can use a section 8 defense. I doubt that they will now all of the sudden say you can't.  Just sayin.......  Now whether or not the lower courts and COA twist that sideways, as they did in yours and Larry Kings case, is a different story. Reality is now they are not even trying to disquise it. They just blatantly do it.

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The Supreme Court has said over and over you can use a section 8 defense

i agree they did say it way back in 2010 from the C.O.A But it stop's right their and soon we will be getting another ruling from the Supreme Court that will be ruling on a Sec 8 

And IMHO it's a bad case that went up their i think it was a case about some city stoping people from growing or something like that

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king/kolanek ruling stated whats required for a section8 defense.

 

going from memory, there are 3 prongs:

1. resident of michigan, doctors recommendation after the MMMA was passed in 2008

2. using it for medical purpose, and the amount is reasonable for your medical purpose.

3. the doctors rec has to be made before using marijuana/being arrested. "has stated"

 

section 8 defense should be made in a pre-trial "motion to dismiss".

there is case law that says the motion has to be made, even if the idiot judge says not to.

because if you dont make that motion, you wont be able to appeal or some stupid crap.

so make sure you make that motion, no matter what. you can appeal later if judge rejects it.

 

from king/kolanek:

 

 

in some cases, the paper document recommendation was enough to satisfy one of the three prongs.

in another case, especially bobandtoreys, the prosecutor/court ordered their doctor to testify.

 

in the evidenciary hearing that follows the sec8 motion, you will have to provide evidence.

i've not been to any section8 hearings, so i'm going on guesses.

this can be written or oral testimony from you, your doctor, your patients, your caregiver, etc.

 

if you are over on limits, read the part of section 8 out loud

The three prongs are:

 

(1) A physician 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 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 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; and

 

(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.

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