Can An Unregistered Patient Have A Caregiver Whom Is Protected By Section 8?

[bobandtorey]

We will soon find out the Answers to all of this because the Clinical Relief Case is coming back from the C.O.A soon

[GregS]

"I sure would love to know what was going through their minds when they reasoned that 4e is there to "emphasize" that a sale is okay."

 

Maybe it is fair enough to think that the SC sees the issue as the valid initiative that it is, sees the writing on the wall, and intends, within its own prerogatives, to help usher in cannabis use in deference to the masses, and in diametric opposition to the reactionary COA. Maybe fairy tales do come true.

Edited July 30, 2013 by GregS

[CaveatLector]

"I sure would love to know what was going through their minds when they reasoned that 4e is there to "emphasize" that a sale is okay."

 

Maybe it is fair enough to think that the SC sees the issue as the valid initiative that it is, sees the writing on the wall, and intends, within its own prerogatives, to help usher in cannabis use in deference to the masses, and diametrically opposed to the COA. Maybe fairy tales do come true.

Saying that their interpretation was deliberate in that sense is to say they are exercising judicial activism.  I don't think that we, as a society, want activist judges.  Just as with jury nullification, judicial activism can go the other way too.  To think that it is okay because you like the outcome is to ignore that it will/could happen where you do not.

[GregS]

Great point. In the practical world, however, judicial activism happens not infrequently. Consider the COA or Bush v Gore.

Edited July 30, 2013 by GregS

[ozzrokk]

Saying that their interpretation was deliberate in that sense is to say they are exercising judicial activism.  I don't think that we, as a society, want activist judges.  Just as with jury nullification, judicial activism can go the other way too.  To think that it is okay because you like the outcome is to ignore that it will/could happen where you do not.

 

 

Which is precisely why I say a judge should be ruling on the law and not their OWN PERSONAL feelings on matters especially when it comes to COA or the SC.

[GregS]

Which is precisely why I say a judge should be ruling on the law and not their OWN PERSONAL feelings on matters especially when it comes to COA or the SC.

But there is no getting around the fact that it happens all the time ozz. Sure honesty, integrity, and fairness are all well and good, but we live in a world where those are ideals, and not practical matters. i could not agree more that those things matter, but I am pretty old fashioned and apparently not sufficiently jaded.

Edited July 30, 2013 by GregS

[ozzrokk]

But there is no getting around the fact that it happens all the time ozz. Sure, honesty, integrity, and fairness are all well and good, but we live in a world where those are ideals, and not practical matters. i could not agree more that those things matter, but I am pretty old fashioned and apparently not sufficiently jaded.

 

 

It is truly sad........

[CaveatLector]

Which is precisely why I say a judge should be ruling on the law and not their OWN PERSONAL feelings on matters especially when it comes to COA or the SC.

Of course the should be ruling on the law.  Personal beliefs should have no part in that decision-making process.

[CaveatLector]

Great point. In the practical world, however, judicial activism happens not infrequently. Consider the COA or Bush v Gore.

Yes, you are correct.  But we should be striving for impartiality.  We cannot just let it all go because it doesn't always work the way it need to be working.

[Dr. Bob]

Well, that is part of my point.  You are protected for medical use in accordance with the act.  Transfer, according to the supremes, includes a sale.  That's all good but you have to look to where in the act the sale is permitted.  4e permits a sale by the cg.  Therefore they are protected. 

 

Similarly, use is protected but you have to look to see who is protected for use.  Only the pt is protected for use according to sec 4a.  It is a "right" given in the act that is exclusive and personal to the patient and reserved for the patient in 4a.  So you cannot just point to an element of medical use and argue that a person should be able to engage in whatever behavior that element entails UNLESS that behavior is allowed by the act.

 

The fact that the act explicitly permits a sale in sec. 4e is what gives me pause.  The supremes basically called it an "extra" protection.  So, according to them, you are protected for a sale by virtue of its relationship to a transfer under the definition of medical use.  Then you have "extra" protection for the sale in 4e.  That whole line of reasoning makes no sense legally speaking.  That is the point I am trying to convey.  If they were using proper rules of statutory interpretation then they were misconstruing 4e because rules of statutory interpretation don't allow for extra fluff to be read into a statute.  The rules tell us that everything is in the statute for a reason.  So what is the reason for 4e if not to tell us that a cg is protected for a sale?  Saying that 4e was inserted to "emphasize" protections for a sale is an elementary interpretation.  In fact, if the drafters wanted to clearly indicate that a sale was protected then why not just add "sale" to the definition of medical use to "emphasize" this notion and then leave 4e out altogether? 

 

So, to answer your question, a transfer could be construed to include a sale in sec. 8.  What I am saying is that the supremes made a mistake in their reasoning when they interpreted the statute.  If they choose to go back and fix it should a section 8 case be brought to them then someone could be left holding the bag. If they choose to leave it be then you may be in the clear to sell under section 8.  So no one knows how this will end.

 

I sure would love to know what was going through their minds when they reasoned that 4e is there to "emphasize" that a sale is okay.

Clearly there is some question as to whether 'sale' is part of section 8 vs transfer without compensation, and the whole 'purpose' of the transaction (alleviation of a condition or profit) issue will be a source of contention in the courts.

 

The major point that hasn't been address CL is whether section 8 is based on the patient with the caregiver gaining some defense through the patient or a caregiver can independently claim protection with section 8 without involving the patient.  To me the three prongs of the section 8 defense are directed towards the protection of the patient.  For example, if I was an unregistered caregiver, how could I prove prong 1 without the patient?  

 

If it is dependant on the patient, how does an unregistered caregiver create a relationship with the patient that will overcome the prosecutors obvious contention that it was simply a sale of a controlled substance outside of the registry, p2p, etc and therefore not allowed or protected under the MMMA?

 

Dr. Bob

Edited July 30, 2013 by Dr. Bob

[GregS]

Yes, you are correct.  But we should be striving for impartiality.  We cannot just let it all go because it doesn't always work the way it need to be working.

And we do and I do strive for that, and I am proud to be here with like minded people in that regard.

 

Gonna go and buy a new ride now. Waaahooo. I hope to take to the road more.

[+Malamute]

Well, that is part of my point.  You are protected for medical use in accordance with the act.  Transfer, according to the supremes, includes a sale.  That's all good but you have to look to where in the act the sale is permitted.  4e permits a sale by the cg.  Therefore they are protected. 

 

Similarly, use is protected but you have to look to see who is protected for use.  Only the pt is protected for use according to sec 4a.  It is a "right" given in the act that is exclusive and personal to the patient and reserved for the patient in 4a.  So you cannot just point to an element of medical use and argue that a person should be able to engage in whatever behavior that element entails UNLESS that behavior is allowed by the act.

 

The fact that the act explicitly permits a sale in sec. 4e is what gives me pause.  The supremes basically called it an "extra" protection.  So, according to them, you are protected for a sale by virtue of its relationship to a transfer under the definition of medical use.  Then you have "extra" protection for the sale in 4e.  That whole line of reasoning makes no sense legally speaking.  That is the point I am trying to convey.  If they were using proper rules of statutory interpretation then they were misconstruing 4e because rules of statutory interpretation don't allow for extra fluff to be read into a statute.  The rules tell us that everything is in the statute for a reason.  So what is the reason for 4e if not to tell us that a cg is protected for a sale?  Saying that 4e was inserted to "emphasize" protections for a sale is an elementary interpretation.  In fact, if the drafters wanted to clearly indicate that a sale was protected then why not just add "sale" to the definition of medical use to "emphasize" this notion and then leave 4e out altogether? 

 

So, to answer your question, a transfer could be construed to include a sale in sec. 8.  What I am saying is that the supremes made a mistake in their reasoning when they interpreted the statute.  If they choose to go back and fix it should a section 8 case be brought to them then someone could be left holding the bag. If they choose to leave it be then you may be in the clear to sell under section 8.  So no one knows how this will end.

 

I sure would love to know what was going through their minds when they reasoned that 4e is there to "emphasize" that a sale is okay.

 

 

 Sec 4(e) is there to restrict the extent of transfer as defined,.... imho.  If transfer include sales specifically, as stated in MSC, than 4(e) exists only to restrict it.

 

edit:  I mean, if sale is not included in transfer, than it makes more sense that 4(e) is allowing compensation.  But they took the tract to basically say, 4(e) is a restriction to transfer.  Odd and not expected.  If they were to say that 'sale" was included as part of the process of "acquire" it would make more sense. :-) To me anyway.  Acquisition includes sales.

[CaveatLector]

 Sec 4(e) is there to restrict the extent of transfer as defined,.... imho.  If transfer include sales specifically, as stated in MSC, than 4(e) exists only to restrict it.

How would 4e restrict a sale?

[bobandtorey]

And we do and I do strive for that, and I am proud to be here with like minded people in that regard.

 

Gonna go and buy a new ride now. Waaahooo. I hope to take to the road more.

[+Malamute]

By reducing the type of sale allowed to cover only costs.

[+Malamute]

So, say. it makes it clear that only a CG can receive compensation as well.  *shrug*

[+Malamute]

... or, does it only exist to state compensation is not sale of a controlled substance?

 

Heh.

 

I still think transfer shoiuldnt include sale though. It is part of the acquisition process.

[Dr. Bob]

I do believe that sale is a transfer plus compensation.  The Act specifies that a transfer for compensation between caregiver and their registered patient is specifically not a sale. 

 

There was an old analogy I used to clarify this.  Suppose the color Green was illegal.  Trees are green therefore illegal.  People want a Christmas tree in the house.  To allow people to own Christmas trees, the legislator passes a law that states Christmas trees are blue.  People can now have Christmas trees because they are not green per the law, they are blue.

 

That is how a transfer for compensation between a caregiver and their patient is not considered sale of a controlled substance, because the law specifically says it isn't.

 

Dr. Bob

Edited July 30, 2013 by Dr. Bob

[+Malamute]

The word transfer is not in sec 4(e) though.

 

 And I agree. ;-)

[CaveatLector]

(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

 

I agree with Doc on the 2nd sentence.  It is in there to prophylactically head off any problems as a result of a sale of a controlled substance.

 

However, the first sentence explicitly allows for compensation.  That isn't a necessary part of (e) if transfer includes sale because a sale, by definition, includes compensation for costs.  Therefore, interpreting transfer to include sale renders that sentence surplusage.

[CaveatLector]

As for sec 8 and a cg exercising an AD by himself--Making a determination in that regard requires proper grammatical interpretation.  I have interpreted it and have been confused by what is basically poor grammar within section 8.  Then I turned to someone much more well-qualified than I at interpreting grammar.  This person also agrees that section 8 uses poor grammar and is poorly drafted. 

 

Whether a cg can use sec 8 independent of a pt turns on the interpretation of:

 

Sec. 8. (a) Except as provided in section 7(b), a 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 that:

 

That subsection contains the conjunctive, "and" in the first highlighted portion.  Because, "and a pt's primary cg" isn't set off with commas to form an interjection of sorts it can be read to mean that the defense may be asserted in tandem.  In other words together and not independently.  However, adding it as an interjection would not necessarily solve the problem.  There would still be some ambiguities.  So intent would then become an necessary component in construing that section.  Did the drafters intend to give protection to a cg independent of the pt?  Probably.

 

However, consider the fact that section 4 lists separate subsections for the pt and cg protections.  Section 8 did not do this.  Why?  Did the drafter intend that the cg have independent protection here?

 

Lastly, let's examine the practicality of a cg selling at a farm mkt.  The cg shows up with x ozs to sell.  Let's say he is in possession of only the precise amount he WOULD be allowed to possess for himself and his pts.  2.5 ozs per.  So let's say he walks in with 5 ozs because he has 2 pts.  The moment he picks up that 5 ozs with the intent to take it to the mkt and sell it is the moment he is breaking the law and has no sec. 4 or sec. 8 protection.  Why?  Because he is no longer possessing that 5 ozs FOR his pts.  He takes it into the mkt to sell it to some as-yet-unnamed pts.  So he is in possession of mj that he intends to sell and NOT keep for his registered pts.  So all the while he sits at his table trying to sell it and he has no section 4 or 8 protection.  Once he sells it then maybe he has section 8 protections by virtue of the pt to whom he sold.  But until that moment he has no protection.  He is basically trying to game the system by possessing 5 ozs that he claims he is entitled to possess by virtue of his 2 pts but, in reality, he isn't.  See (b)(2) below:

 

(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.

 

The highlighted red "the" refers to the connected pt in section 4.  Clearly if you are sitting with your 5 ozs and trying to sell it at a market then the conduct related to the mj is not for the purpose of alleviating THE pt's condition.

 

No way around this.  Hard for a prosecutor to prove?  Maybe.  But, in theory, you are illegally holding 5 ozs.

[bobandtorey]

 Hard for a prosecutor to prove? if she had a witness to the selling/buying   like another Leo that did the buying ?

[GregS]

Might 4(e) be considered an intended foil to the CSA?

[CaveatLector]

Might 4(e) be considered an intended foil to the CSA?

If that were the case you would think they would use the same language as the CSA.  The CSA doesn't mention sales or compensation so allowing same isn't what gets you around the CSA.

[Dr. Bob]

So sitting there with 5oz meant for MY patients at the farmers market confirms my intent is not to use that for MY patients but is for sale means I have no protection under section 4 or section 8.

 

Strike one.

 

I sell that 5 oz to a couple of patients to which I am not registry connect.

 

Strike two.

 

OK CL, lets have a look at our potential foul ball to keep the count alive.

 

Though the medicine was not for MY registered patients, and I sold it to patients to which I had no registry association, can I claim protection under section 8?  What would I have to do to gain the AD?

 

I would assume that if the patients were carded (or if I am feeling a little risky had what appeared to be legal paperwork) that they could construe that as meeting prong 1.  If I stayed at less than 2.5 ounces going to each patient, and assumed they had no more at home, I guess I could say the amount was ok so we get prong 2.  And if I made them promise they were using it for relief of their own symptoms, that would make prong 3.

 

It seems a little loose and as a prosecutor I could think of a dozen ways to tear it apart.  What can we do to firm that up, or is it enough?

 

Dr. Bob