August 3- Date Concentrates/edibles Become Illegal?

[GregS]

Thanks for your sage advice and offer to approach Mr. Grow. Can't remember where I heard that you are in that profession, and appreciate the clarification.

 

The numbers very much need to be crunched. There may be a possibility for a pilot program.

 

Not every case would be appealed. Most would, I believe, be dismissed in a hearing on motions to dismiss immediately following a circuit court arraignment. There may be compelling reasons to put limits on coverage, perhaps to the evidentiary hearing. If, after all, the three elements of the defense can be proved, to include reasonable possession limits, the case would stop there, helping to manage risk, contain cost, and not require further litigation.

 

This is a little gem that I am working into the mix. It is from Greg Schmid and is used per his permission with required credit to the author:

 

 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).”

Edited July 19, 2013 by GregS

[GregS]

There is plenty of precedent regarding the authority of the AD in Kolanek, King, Bylsma, &c.

[GregS]

And then we have this. Thank you again Mr. 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.
.”

Edited July 19, 2013 by GregS

[GregS]

Duplicate

Edited July 19, 2013 by GregS

[Hayduke]

I certainly hope you are right.

 

but please do not consider that an endorsement.  Because it is not.

 

I did not offer to approach Mr. Grow on your behalf.  You are attempting to put words into my mouth.

 

Good luck.

[Chauncy Gardner]

I have a question re: a Section 8 defense.

 

Does a judge decide if the defendant will be given a section 8 jury trial? In other words, can a judge decide that the defendant hasn't met the requirements to proceed to a trial? Can the judges decision be appealed?

[GregS]

I certainly hope you are right.

 

but please do not consider that an endorsement.  Because it is not.

 

I did not offer to approach Mr. Grow on your behalf.  You are attempting to put words into my mouth.

 

Good luck.

 

I certainly hope you are right.

 

but please do not consider that an endorsement.  Because it is not.

 

I did not offer to approach Mr. Grow on your behalf.  You are attempting to put words into my mouth.

 

Good luck.

Enough said. Regrets if I somehow misspoke.

[pic book]

what does that constitute, a sufficient showing to walk on if the judge decides you can use it?

[GregS]

what does that constitute, a sufficient showing to walk on if the judge decides you can use it?

The short answer is yes.

 

Judges are required to permit the evidentiary hearing, per the SC. Only if there are material questions of fact, viz, no validated physician statement, insufficient proof of mj use to treat or alleviate..., or an amount more than required for an uninterrupted supply, does it go to a jury, again per the SC. Judges who arbitrarily refuse to permit the defense have been smacked down by the high court.

 

And yes. A defendant can appeal if a judge refuses to permit the defense.

Edited July 19, 2013 by GregS

[cristinew]

Back to the topic  

 COA quote on this case

 

drafters clearly expressed its intent not to include 

resin, or a mixture or preparation of resin

 

Now the fiber of the plant has no medicine  ,, Just the resin  has medicine  ,, why would they say this?

[GregS]

 

Back to the topic  

 COA quote on this case

 

drafters clearly expressed its intent not to include 

resin, or a mixture or preparation of resin

 

Now the fiber of the plant has no medicine  ,, Just the resin  has medicine  ,, why would they say this?

For the same reasons they ruled on other cases. They are intellectually and morally dishonest.

[Celliach]

I have a question re: a Section 8 defense.

 

Does a judge decide if the defendant will be given a section 8 jury trial? In other words, can a judge decide that the defendant hasn't met the requirements to proceed to a trial? Can the judges decision be appealed?

 

Yes, the judge decides.  Yes, the decision can be appealed just as any case can be appealed.  Remember this will take time, money, and your energy.  If you think it's worth going to jail bailing yourself out, hiring an attorney, going through circuit court, paying to appeal the circuit courts decision, go to court a second time, and possibly lose, then by all means go for it.

[ozzrokk]

For the same reasons they ruled on other cases. They are intellectually and morally dishonest.

 

 

Thats a fact jack.

[GregS]

Thats a fact jack.

Around here we call 'em republicans.

[Celliach]

I'd call them social conservatives.  Remember Ron Paul was a Republican.  Gary Johnson is still a Republican.

[cristinew]

I could think of better words lol

Edited July 20, 2013 by cristinew

[Celliach]

I was trying to be nice.

[phaquetoo]

I have a question re: a Section 8 defense.

 

Does a judge decide if the defendant will be given a section 8 jury trial? In other words, can a judge decide that the defendant hasn't met the requirements to proceed to a trial? Can the judges decision be appealed?

Im pretty sure that you can appeal just about any decision in any court, Im not an attny but have had to play the game on my own with very different circumstances, Im pretty sure the apeals stop after the fed supreme court,,,,,That is the opin of a  person with no study of the law!

 

Peace

Jim

[bobandtorey]

I have a question re: a Section 8 defense.

 

Does a judge decide if the defendant will be given a section 8 jury trial? In other words, can a judge decide that the defendant hasn't met the requirements to proceed to a trial? Can the judges decision be appealed?

A Michigan appeals court ruled this week that the state's medical marijuana law requires cardholders to be Michigan residents, and held that immunity from prosecution under the law is a question for a judge, not a jury, to decide

[ozzrokk]

Around here we call 'em republicans.

 

 

I guess even those that are democrats are then called republicans when they do such crooked things? Why not just call them what they are? Crooked politicians is what I call them. There are those that are crooked and a very few that are not. You see when it keeps getting blamed on one party or the other (only) then that is just someone sticking to their party blindly. That is wrong as well.

Edited July 20, 2013 by ozzrokk

[phaquetoo]

I guess even those that are democrats are then called republicans when they do such crooked things? Why not just call them what they are? Crooked politicians is what I call them. There are those that are crooked and a very few that are not. You see when it keeps getting blamed on one party or the other (only) then that is just someone sticking to their party blindly. That is wrong as well.

I agree ozz, Alot of good people go into politics,,,,But alot of bad people come out of politics, repubs, dems, independents!  they all have a price, and most dont care what the people that voted them in say, think or do, no incumbents, no incumbent dems, repubs or independents, and most likely nothing will change!  I dont like being a downer, but my belief in the political arena is gone, Loonng Gone!

 

Peace

Jim