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*affirmative Defense Question*


Ltdan313
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I have been charged with possession of marijuana. This is the second time I have been charged with this in the last 2 years and the first one I was able to get dismissed due to an affirmative defense. My only problem here is I had it in my pocket while I was driving so it is in this case an illegal transportation although I wasnt charged with illegal transportation. My medical card expired in april last year and Im wondering if I could still have this case dismissed under an affirmative defense? Any advice would be greatly appreciated.

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yes, affirm defense should get you out of prosecution involving marihuana for medical purposes.

 

did you actually have a section8 hearing and the judge dismissed it, or did the prosecutor drop charges before that happened?

 

talk to the prosecutor and give him a copy of your expired card (and possibly your doc rec, but hold on that) and see if they will drop or proceed. maybe its best to talk to a lawyer.

 

heres the template motion to dismiss under section 8 aka the affirmative defense.

http://www.michiganmedicalmarijuana.org/ccs_files/downloads/ModelMOTIONTODISMISS.pdf

 

i'm curious what city/county you got popped in, oakland county? 

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The last time it happened the prosecuter dismissed it before it went to trial. The first time it happened in Westland and they actually planted the marijuana ( no joke) this time it's on Livonia. My friend was also charged for loitering where drugs are found even though I admitted it was mine. The only reason I didn't renew my card was because I wanted my cpl and didn't want to give up my 2ND amendment rights.

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if you showed cops your expired card, that should have protected your friend.

since it was medical marijuana and a person shall not be prosecuted for being in the presence of mmj.

probably all he needs to do is have you show up with your doc rec/ exp card to get that dismissed.

 

thats crazy about being planted on you. crazy! glad you got out of that.

 

but yeah call up the prosecutor, it sounds like the cops made a mistake. we'll see if livonia's prosecutor is smart or dumb.

 

illegal transport aka MCL 750.474 does not apply to the MMMA either. its inconsistent with the act. as there is no limit on transporting marijuana (except schools, jails of course). 

 

i'm not sure about expired cards providing sec4 protection. there is an activist who says those still give you sec4 protection just because the act doesnt say 'valid card' but 'valid drivers license'.... i wouldnt bet on it, and proving that would cost $$$ in court.

 

good luck and if you needs help, keep askin the questions. its probably good if you get a lawyer too.

 

btw what street did you get popped on? was it plymouth or 7 mile or middlebelt? i have a theory that the police are on those roads more than other roads due to walmarts...

Edited by t-pain
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I dont think ill be covered under section 4 because my card wasn't valid. Ill be covered under section 8 though. The only thing i was worried about is can they then bring up charges for illegal transportation? The only reason i asked is because my cousin was pulled over and charged with DUI last year. When he met with the prosecutor he was told that if he didn't plead guilty for the dui they would then try to charge him with the "Super drunk law". Should i inform the prosecutor of my intent to file for an affirmative defense or should i just let them arraign me and then use it as a defense during my trial? I dont want him to try to have an upper hand in court but im also trying to represent myself. Any more suggestions?

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I don't think that illegal transport has anything to do with the MMMP, I wish you the best of luck though, if you do decide to use it as a defense, I think the PA and judge may have the power to pull your card... Unless you have a good stack of medical conditions, a good lawyer, and a reputable Dr to come in and show that you do in fact NEED mmj, the way these PA and judges are manipulating our act, it wouldn't surprise me if they didn't try, week after week case after case it's getting worse.. Sec 8 requires you to prove thse three elements.

Remember, it reads plain English to us, but dig a little deeper by case laws on sec 8 attempts, and you will see how truly tough it is.... I'm no lawyer, I just read alot!

Some people tell victims to fight it and never plea, but when this occurs without the proper council, it back. Fires and not just for the victim, but for all patients in MI.

1. A physician’s recommendation that in the physician’s professional opinion and 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 marijuana.

2. The defendant was in possession of an amount of marijuana that was less than reasonably necessary for the purpose of treatment of the patient’s medical condition.

3. The patient’s use of medical marijuana was only to treat and alleviate the patient’s serious or debilitating medical condition or symptoms associated with that condition.

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I had a great relationship with him but i just found out today that my doctor retired. I live in Detroit. Does anyone know of any Doctors I could use?

Www.DenaliHealthcareMi.com

 

Go there, read read and read. Then make an appointment, come back here and keep reading, tell others to read, a lot of people don't come here untill they fall victim. GL!

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at least get the number of a lawyer, sometimes judge wont let you proceed without council... (i dont make the rules i just live here)

They have to let you represent yourself, in most of my cases I have reped my self, in the few when I tryed to go cheap I got a court appted attny, most times your better off representing your self, the court appted one is gonna come to you with what the prosecutor wants period, they dont try and say well how about this instead!  I know that for sure, and it isnt just mm cases, it is all cases.

 

I cant tell you how many times I was given a court appointed attny and I called them and called them and absolutly no response, I go to my pre lim and here comes this stranger telling me today we are just waving your rite to the prelim and going across the street to circuit court!

I ask said lawyer and when do we ask them to deal? he says once we go to circuit there is no deal you will get a felony or a trial and He dont recomend a trial!?!  so now what you gonna do?

 

The 1st thing im doing is going into my pre lim and getting rid of my attny. and either gonna rep my self or hire an attny or in some cases im on my cell phone and handing the idiot attny and saying here this is for you, (on the other end of line is my attny telling him what to do) and if he doesnt do as I/we say it is called a mistrial! and the attny helping the idiot attny is called side barring.

 

dont go down with out a fight, I mean Im not saying if you get offered a deal that you are happy with not to take it,,,only you can decide that!  but dont let the court system screw you!  You can rep yourself to almost the end and then say you need an attny and hire one than, ive gone down to within days of the trial and have done this!  it is nerve racking but so is just the straight up lynching you get so why not fight it all the way?

 

Peace

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You will have to use the doctor you have already seen before the 'occurance', as the courts have outlined. Hopefully you have seen him in the last year.

What if my doctor retired? It's been a year and a half since I last saw him. Where does it say that it has to be by the same physician? I have a note that he wrote for my last court case thats dated 06/08/12.

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What if my doctor retired? It's been a year and a half since I last saw him. Where does it say that it has to be by the same physician? I have a note that he wrote for my last court case thats dated 06/08/12.

you need to get your med records from that dr's office, they should still be available, unless they already called you long ago and you didnt go get them, I have my medical records from the day I became disabled in may of 98, I can go any where with records in hand, the dr i go to now I get a copy of my records every 6 months, I keep them with me in my home!  I have been doing this way before our law came into effect!

 

Peace

 

edit= simple possesion of mj 2nd offense is a fellony!

Edited by phaquetoo
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What if my doctor retired? It's been a year and a half since I last saw him. Where does it say that it has to be by the same physician? I have a note that he wrote for my last court case thats dated 06/08/12.

That would fall into the definition the courts have outlined for a bonified doctor-patient relationship. That part is very important in that specific prong of the section 8 defense. Prosecutors like to dig deeply into that relationship when you are attempting a section 8.

 

For anyone else that falls into this trap, make sure that when your doctor retires there's some continuity documented when you switch doctors. Most doctors, when they retire, try to provide that continuity for you, to the point of recommending another doctor. You had better keep track of what's up with your cannabis specialist doctor, especially if you are going to be naked without a card.

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That would fall into the definition the courts have outlined for a bonified doctor-patient relationship. That part is very important in that specific prong of the section 8 defense. Prosecutors like to dig deeply into that relationship when you are attempting a section 8.

 

For anyone else that falls into this trap, make sure that when your doctor retires there's some continuity documented when you switch doctors. Most doctors, when they retire, try to provide that continuity for you, to the point of recommending another doctor. You had better keep track of what's up with your cannabis specialist doctor, especially if you are going to be naked without a card.

For example, what if someone had seen a Dr for a recomendation 3 weeks prior to being arrested? How would there be a bonafide relationship?

It almost sounds to me that, going to an experienced mmj Dr. and asking on the first visit, "would cannabis be a good option to me?" ... Three weeks later, going back to the Dr and asking, "are you sure it would benefit me useing Mmj?" And then finally, say four weeks later, go back to him and ask them the same thing and then receive a rec for the use of mmj wouldn't help if you get arrested because there is no time to establish a bonified dr/pt relationship unless they count the 3 trips to the same Dr as "bonified"

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For example, what if someone had seen a Dr for a recomendation 3 weeks prior to being arrested? How would there be a bonafide relationship?

It almost sounds to me that, going to an experienced mmj Dr. and asking on the first visit, "would cannabis be a good option to me?" ... Three weeks later, going back to the Dr and asking, "are you sure it would benefit me useing Mmj?" And then finally, say four weeks later, go back to him and ask them the same thing and then receive a rec for the use of mmj wouldn't help if you get arrested because there is no time to establish a bonified dr/pt relationship unless they count the 3 trips to the same Dr as "bonified"

That's exactly why a good cannabis specialist usually asks for 3 years of records from a doctor you HAVE a bonified relationship with. Continuity.
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Yes. In fact, it would be safe to say that if you have established chronic pain with one doctor who has it properly documented in the office notes, a specialist could rec you after a proper examination at one office visit. This has been established years and years ago. We are not the first ones at this rodeo. Even though some prosecutors want to play dumb about it.

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