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

[GregS]

At the risk of falling back into insane argument, which I do not want Bob, a contract, signed and notarized, is intended to provide verifiable evidence that the vendor has been designated, albeit without registry connection, to assist the patient in the medical use of marijuana as a caregiver. Sales on the QT without that are extremely difficult, if not impossible, to defend. If the market were to have a notary on site those contracts can be notarized on the spot creating substantial evidence to support claims of medical use. More private agreements outside of markets are a better option. Notaries are common and can be found with no real effort. Then we have to turn to rules of evidence.

 

There has been speculation regarding the admissibility of the contract in a sec. 8 hearing, which would include a solid statement from a physician or a valid patient registry card to meet prong 1. A clause stating that the patient designates the vendor and that spells out that the parties are engaged to treat or alleviate... establishes prong 2. The vendor would keep the original documents and the patient copies for their files. The contract can be kept in force as long as the parties are okay with it. That patient is able then to subsequently go to market and buy from any vendor s/he has contracted with or who is connected with them through the registry or to buy privately from any contractually assigned unregistered caregiver.

 

Prosecution arguments would, by their adversarial nature, attempt to exclude the documents from evidence as hearsay. There are, however, defense moves that can keep them alive. The business records exemption is one of several. Otherwise there are prophylactic steps that can be taken to establish that they are not hearsay.  Prior signed and notarized verification by the physician that the examination took place in a bona fide dr/pt relationship is one of those. Clinical notes made in the course of treatment that express that the examination was properly made are admissible as certified records of regularly conducted activity. A declaration by the physician certifying that they are contemporaneous to the complete assessment, in the course of regular activity, and according to regular practice would lend necessary veracity.  There is reason to believe the defendant would prevail and that the documents be accepted by the court.

 

I have posted this before, which speaks directly to proving the evidence:

 

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).”

 

So now we find out why games are played on Saturday afternoon. Nothing is resolved until the game is over.

Edited July 31, 2013 by GregS

[CaveatLector]

Here is the trouble as I see it--and keep in mind that this is a work in progress as I consider the law from different angles.  I didn't hold this opinion 24 hours ago.  It wasn't until I started to seriously consider this whole thing that I realized the trouble involved.

 

I don't know how you get past the fact that you were in possession of any amount of marijuana that was, in theory, grown for YOUR pts and then you, at some point in time, had the intent to repurpose it for a different patient.  Smells a lot like a p2p transfer.  At the moment you formed the intent to redirect the mj to an unidentifiable pt you were illegally possessing the mj.  Or, maybe more appropriately put, you didn't qualify for section 4 protections.  You certainly didn't qualify for section 8 protections either because you had not yet ascertained and identified a pt that would qualify to get you through a section 8 defense.  So there is a lag time. 

 

I don't know how you get past the fact that your claim of protection relies on a pt whom you didn't even necessarily know the hour before.  To sell to such a pt you have to admit that you were either growing for your pt and then repurposed the mj (at which point it became illegal to possess) or you were growing for some unknown pt from the start.  Either way it doesn't look good.  I just don't think there is a way out of this. 

 

I can see an unregistered cg growing for an identified unregistered pt from the start.  Then you had the intent to provide an identifiable pt with a specific amount of mj (whatever it is they need to insure a continuing supply).  But going into a mkt with any amount that you intend to sell to whomever walks up seems to strip you of your MMA protections. 

[GregS]

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.

I mean to say that 4 (e) excludes the transfer/sale as a criminal act.

Edited July 31, 2013 by GregS

[GregS]

Here is the trouble as I see it--and keep in mind that this is a work in progress as I consider the law from different angles.  I didn't hold this opinion 24 hours ago.  It wasn't until I started to seriously consider this whole thing that I realized the trouble involved.

 

I don't know how you get past the fact that you were in possession of any amount of marijuana that was, in theory, grown for YOUR pts and then you, at some point in time, had the intent to repurpose it for a different patient.  Smells a lot like a p2p transfer.  At the moment you formed the intent to redirect the mj to an unidentifiable pt you were illegally possessing the mj.  Or, maybe more appropriately put, you didn't qualify for section 4 protections.  You certainly didn't qualify for section 8 protections either because you had not yet ascertained and identified a pt that would qualify to get you through a section 8 defense.  So there is a lag time. 

 

I don't know how you get past the fact that your claim of protection relies on a pt whom you didn't even necessarily know the hour before.  To sell to such a pt you have to admit that you were either growing for your pt and then repurposed the mj (at which point it became illegal to possess) or you were growing for some unknown pt from the start.  Either way it doesn't look good.  I just don't think there is a way out of this. 

 

I can see an unregistered cg growing for an identified unregistered pt from the start.  Then you had the intent to provide an identifiable pt with a specific amount of mj (whatever it is they need to insure a continuing supply).  But going into a mkt with any amount that you intend to sell to whomever walks up seems to strip you of your MMA protections. 

Which makes private and confidential agreements between two parties attractive. I fail to see how repurposing an amount of marijuana, and especially small amounts, would be a criminal act, considering that said repurposing would not take place until the documents are properly executed and a relationship is established, permitting the caregiver and patient to collectively possess an amount not more than necessary....

Edited July 31, 2013 by GregS

[CaveatLector]

Which makes private and confidential agreements between two parties attractive. I fail to see how repurposing an amount of marijuana, and especially small amounts, would be a criminal act, considering that said repurposing would not take place until the documents are properly executed and a relationship is established, permitting the caregiver and patient to possess an amount not more than necessary....

The size of the amount is of no concern as to the legality.

 

The logistics of the transfer is where the trouble lies.  The devil is in the details.  Assume a farm mkt model.  John brings 1 oz into the mkt to try and sell to a pt.  He left home with the oz with the intent to take it to the mkt to sell it to someone as yet unidentified.  The moment his intent was to sell the mj to someone other than the pt for whom it was grown is the moment he lost sec 4 protections--see 4(d)(2).  So, stripped of section 4 protections he sits at his rented table and awaits a buyer.  He is, during that time, not entitled to sec. 8 protections either because there is no pt that has been identified that helps the cg meet the sec 8 requirements.  Arguing that the oz was his registered pt's up until the moment the mkt pt took possession is a fallacy as the cg's actions show otherwise.

Edited July 31, 2013 by CaveatLector

[GregS]

The size of the amount is of no concern as to the legality.

 

The logistics of the transfer is where the trouble lies.  The devil is in the details.  Assume a farm mkt model.  John brings 1 oz into the mkt to try and sell to a pt.  He left home with the oz with the intent to take it to the mkt to sell it to someone as yet unidentified.  The moment his intent was to sell the mj to someone other than the pt for whom it was grown is the moment he lost sec 4 protections--see 4(b)(2).  So, stripped of section 4 protections he sits at his rented table and awaits a buyer.  He is, during that time, not entitled to sec. 8 protections either because there is no pt that has been identified that helps the cg meet the sec 8 requirements.  Arguing that the oz was his registered pt's up until the moment the mkt pt took possession is a fallacy as the cg's actions show otherwise.

How might it play if John is a patient with only his possession limit involved?

[GregS]

Do you mean to say 4(d)(2)?

[CaveatLector]

How might it play if John is a patient with only his possession limit involved?

4(d)(2) still applies.  If the pt is bringing his mj to a mkt to sell it then the conduct related to the mj is NOT for the purpose of treating the pt's condition. 

[CaveatLector]

Do you mean to say 4(d)(2)?

yes sir

[GregS]

4(d)(2) still applies.  If the pt is bringing his mj to a mkt to sell it then the conduct related to the mj is NOT for the purpose of treating the pt's condition. 

But not the instant that John becomes the patient's caregiver. Prior to that it is patient John's private stash.

[GregS]

Fortunate happenstance.

[GregS]

It's late. Thanks for the flight time. Will pick it back up later.

[CaveatLector]

But not the instant that John becomes the patient's caregiver. Prior to that it is patient John's private stash.

Ownership or possession of the mj isn't the issue.  John owns it, yes.  What matters is the conduct related to the mj.  When John walked into the farm mkt with his "private stash" his intent was to sell it there.  In other words his intent/conduct related to the mj was not to treat himself, it was to sell it at the mkt.  He lost sec. 4 protections the second his conduct related to the mj was not longer to treat himself with it.

[+Malamute]

It always comes down to intent. ;-)

 

Anyhow, the contract even if admissible would still require the patients testimony.  If that patient is a cop,... good luck; if that patient is just a person who is in no trouble, will they wish to put themselves at risk in court for you?

 

 

That is besides the other issues involved.

[Highlander]

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(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.

 

How the SC interpreted this in the Compassionate Apothecary case is really the meat and potatoes of the discussion. A few years ago in a p2p debate with PB, I pointed out how conduct with MMJ must be for the purpose of alleviating a patient's condition (as opposed to being for the purpose of making money)...........To which PB responded that evidence that there was a purpose beyond alleviating the patient's condition would negate the PRESUMPTION of medical use, but one should/would be able to "prove" medical use. In other words, loss of the presumption (above) wasn't the end of the game. And that made sense to me.

 

And it made sense to the (I forgot her name)...the female attorney in the CA case in front of the SC. She was debating the point with Chief Justice Young....She was trying to say that a PA could take a swipe at the presumption of medical use...that the presumption could be lost...but that valid medical use could still be proven. But he tossed the whole idea in the trash can....and in his view, once the presumption was lost, there was no relief. He wouldn't even here her out on the explanation. This seems to set the stage for a ruling with regard to a Section 8 purpose for transferring MMJ...and that if compensation is involved, the purpose isn't just to alleviate a patient's condition.

Edited July 31, 2013 by Highlander

[CaveatLector]

I tend to agree that one could still prove med use even if the presumption was lost.  However, proving med use won't help you keep sec 4 protections unless the med use is by your connected pt.  You are allowed to possess mj for your pt under section 4.  Section 4 doesn't give you protection for possessing mj for someone else.

 

I think that a cg would be protected under sec 8 if the cg had an ongoing relationship with the pt such that it was foreseeable that the pt would need x ozs of mj.  In that case you would have the intent to grow or possess the mj for that particular pt.  However, walking into a farm mkt you have no idea to whom you will sell or even whether you will sell.  So you cannot argue that you were possessing for a pt. 

[bobandtorey]

On January 29, 2013, the Michigan Court of Appeals issued its opinion in People v Green, concluding the MMMA protects the uncompensated transfer of marijuana between patients. For details, please continue reading.

We previously discussed this case here. Now we have an answer from the Court of Appeals.

The Michigan Court of Appeals affirmed Barry County Circuit Judge Amy McDowell’s dismissal of felony delivery of marijuana charges after finding that a transfer of less than 2.5 ounces of marijuana between Qualifying Patients is protected by Michigan’s Medical Marihuana Act.  

The Court of Appeals found the:

 

“delivery or transfer of marijuana, absent the exchange of compensation, is specifically included in the MMMA’s (Michigan Medical Marihuana Act) definition of medical use.” 

The Court of Appeals also discounted the notion that only Caregivers are permitted to transfer marijuana under the MMMA.  The Court said this interpretation “would require us to read limitations into the MMMA that the plain language of the statute does not express….”

Matt Newburg of Newburg Law, PLLC represented the Defendant at the District and Circuit Court, and Eric Misterovich of Newburg Law, PLLC represented Mr. Green at the Court of Appeals.  In a joint statement they said,  “We felt confident about our case and knew it would come down to the clear language in the statute.  We have always believed patient-to-patient transfers were not only protected but authorized by the Medical Marihuana Act and to have the Court of Appeals affirm that belief is great for our client.” 

This is the second medical marijuana case Newburg Law attorneys have taken to the Court of Appeals and their second victory. The other win, in another published opinion, was People v Nicholson, which affirmed the strength of the MMMA’s Section 4 protections.

[CaveatLector]

How is that relevant Bob?

[GregS]

The SC determined that is bad law, and subsequent to Green, ruled that transfer includes sales.

[Highlander]

I tend to agree that one could still prove med use even if the presumption was lost.  However, proving med use won't help you keep sec 4 protections unless the med use is by your connected pt.  You are allowed to possess mj for your pt under section 4.  Section 4 doesn't give you protection for possessing mj for someone else.

 

I think that a cg would be protected under sec 8 if the cg had an ongoing relationship with the pt such that it was foreseeable that the pt would need x ozs of mj.  In that case you would have the intent to grow or possess the mj for that particular pt.  However, walking into a farm mkt you have no idea to whom you will sell or even whether you will sell.  So you cannot argue that you were possessing for a pt. 

 

This seems to suggest what many have also thought from the beginning...that the Act was written with the idea that a pt-CG relationship was a close/connected one....not just a willy-nilly and passing association.

[GregS]

I've agreed to put the market issue aside in my own efforts. I still believe, however, that sec. 8 protections can be enjoyed between private parties and should be, if for no other reason than to permit better access and to exercise effective ingestion options other than smoking.

 

Sec. 8 has always been an integral part of the law HL, which was written with it in mind. It is no less authoritative than sec.4.

Edited July 31, 2013 by GregS

[CaveatLector]

This seems to suggest what many have also thought from the beginning...that the Act was written with the idea that a pt-CG relationship was a close/connected one....not just a willy-nilly and passing association.

The trouble with a farm mkt is that you cannot identify a patient for whom you are possessing.  You can argue that you are possessing for a potential pt or a possible pt but neither of those gives you protection anywhere under the MMA. 

[Restorium2]

The trouble with a farm mkt is that you cannot identify a patient for whom you are possessing.  You can argue that you are possessing for a potential pt or a possible pt but neither of those gives you protection anywhere under the MMA. 

Just because I know it will come up;

If you are a truly legal registered patient, can you carry your 2.5 to a market legally? Then dump it on another patient for cash, and expect a potential avenue for getting your arse out of trouble/jail using a section 8 defense?

It's good to cover all the bases at once on this or it will leak out for endless threads.

Edited July 31, 2013 by Restorium2

[CaveatLector]

Just because I know it will come up;

If you are a truly legal registered patient, can you carry your 2.5 to a market legally? Then dump it on another patient for cash, and expect a potential avenue for getting your arse out of trouble/jail using a section 8 defense?

It's good to cover all the bases at once on this or it will leak out for endless threads.

As a registered pt you are allowed to possess mj for yourself to treat your qualifying condition.  Walking into a farm mkt with the intent to sell your mj is conduct related to the mj that is not for the purpose of treating your condition.  So at that point you lose sec 4 protections.  You also have no sec 8 protections because you have yet to identify a pt to buy it whom qualifies for sec 8.

 

I know some will argue that it is yours up until the exchange takes place and thus you are protected.  However, if you go to a farm mkt and rent a table and sit there with it then your intent is pretty obvious.  There would be situations where this would be hard to prove because your intent is in your mind and if your outward actions don't give it away then there is no practical way to prove it.  However, we aren't discussing what is provable just what is protected.  The level of difficulty in proving intent will vary with the facts of the case. 

 

I drove 10mph over the speed limit yesterday.  If I hadn't told you then it would be awfully difficult to prove.  But I still broke the law even if it cannot be proven.

[GregS]

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(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.

 

How the SC interpreted this in the Compassionate Apothecary case is really the meat and potatoes of the discussion. A few years ago in a p2p debate with PB, I pointed out how conduct with MMJ must be for the purpose of alleviating a patient's condition (as opposed to being for the purpose of making money)...........To which PB responded that evidence that there was a purpose beyond alleviating the patient's condition would negate the PRESUMPTION of medical use, but one should/would be able to "prove" medical use. In other words, loss of the presumption (above) wasn't the end of the game. And that made sense to me.

 

And it made sense to the (I forgot her name)...the female attorney in the CA case in front of the SC. She was debating the point with Chief Justice Young....She was trying to say that a PA could take a swipe at the presumption of medical use...that the presumption could be lost...but that valid medical use could still be proven. But he tossed the whole idea in the trash can....and in his view, once the presumption was lost, there was no relief. He wouldn't even here her out on the explanation. This seems to set the stage for a ruling with regard to a Section 8 purpose for transferring MMJ...and that if compensation is involved, the purpose isn't just to alleviate a patient's condition.

I take the position that there is always medical use involved to treat or alleviate, and that covering caregiver costs, which are not prohibited or profitable under sec.4 and sec. 8, are incidental to that.

Edited July 31, 2013 by GregS