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An Argument For The Defense In People V Hartwick


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In the case PEOPLE OF MI V RICHARD LEE HARTWICK  COA Case Number: 312308and MSC Case Number: 148444

 

The CoA decision that rejected the defendant’s specific arguments that his possession of a registry identification card automatically immunized him from prosecution under § 4 and grants him a complete defense under § 8, is in error. They rejected these arguments because they assert that the argument ignores the primary purpose and plain language of the MMMA, which is to ensure that any marijuana production and use permitted by the statute is medical in nature, and used only for treating a patient’s debilitating medical condition.

 

Their argument that it is the caregiver’s responsibility to know the patients debilitating medical condition, the dosages of the drug, and the amount of time the patient needs to continue taking the drug in order to insure that his patient's use of the marijuana is medical in nature, is in error.

 

The caregiver is only entitled to the information his patient wants him to have.  Unless the caregiver’s patient expressly allows him (the caregiver) to divulge any information known about the patient, he is forbidden by law to do so. Requiring the caregiver to have the information and to divulge it goes against the will of the people who voted to keep the information confidential.

 

Sec. 6. (b) States that applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential. This includes information given to the caregiver.

 

Although prudent for the patient to discuss their underlying medical condition with the caregiver, they need not do so. They may simply tell them how much marijuana they require.

 

Patients need not identify to the caregiver the identity of their physician, in addition, the caregiver need not disclose the identity of his patients. In fact, the caregiver would be in violation of Sec. 6. (b), the confidentiality rules of  the law, and subject to prosecution, Sect. 6 (4) states that a person, including an employee, contractor, or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both." By asking the caregiver to divulge information about their patients, or their patient’s physician, the prosecution is asking them to break the very law they are already being accused of breaking.

 

The Physician Attestation form signed by the physician specifies that the physician attests that the information entered on the certification is true and accurate. The physician attests that they are in compliance with the Michigan Medical Marihuana Act, Administrative Rules, and all amendments.

 

This all-encompassing statement assures that any definition the prosecution or the courts could derive from the language of the act, is already attested to by the physician. LARA’s inclusion of the preceding statement, and their subsequent approval and issuance of identity cards, indicates that the agency has investigated and concluded that the statement is indeed factual.

 

All the caregiver can and need do is accept LARA’s findings.  If the courts wish to challenge the validity of the information, they must do so with LARA, not the caregiver, the caregiver’s patient, or the patient’s physician. By law, it is up to LARA to conduct any investigating, not the caregiver.

 

On LARA's Physician Certification Form, the physician also attests that they have completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation. Further, they attest that in their professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

This statement is redundant. That same language is included within the language of the act, and as the physician has already attested that they are in compliance with the Michigan Medical Marihuana Act, Administrative Rules, and all amendments, they have twice stated it.

 

By issuing the patient's card, all medical references, or references construed to be medical, are therefore deemed to be understood and being complied with by the physician.

 

Issuance of a card by LARA trumps any argument that may be derived from the language and subsequent interpretation of said language by the prosecution, the courts, or by anyone else. 

 

Since a failure by the physician to sign this form would result in LARA denying both the patient’s application, as well as the caregiver’s issuance of a registry card,  the caregiver accepts that LARA has conducted an investigation verifying the truth of the statement, as the law requires.

 

It follows that any question regarding the validity of a patient’s medical use of marijuana is confirmed. LARA role as the agency mandated to manage the implementation of the MMMA, constitutes the final word. The defense’s argument that his possession of a registry identification card automatically immunizes him from prosecution under § 4 and grants him a complete defense under § 8, is therefore valid.

 

All reference to dosages could be considered if the doctor were issuing a prescription, but the same Physician Attestation form clearly states that this is not a prescription. The physician attests that in their professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana. The key word here is opinion.

 

Information regarding the amounts of medical marijuana that the patient is to use, if such was discussed with the patient, is between the patient and their physician. The caregiver has no choice but to rely on the word of the patient as to how much medical marijuana the patient will need.

 

It should be noted that marijuana has been used for thousands of years. It is deemed by researchers all over the globe as being largely nontoxic. A lethal dosage of marijuana is virtually impossible to consume.

 

Telling a patient to "take increasing quantities of marijuana until you feel better." would not be a bad way to establish dosage for virtually all patients.

 

The prosecution’s stance that the defendant was unfamiliar with the health background of his patients, and could not identify the maladies or “debilitating conditions” suffered by two of his patients, and that he was not aware of how much marijuana any of his patients were supposed to use to treat their respective conditions, or for how long his patients were supposed to use “medical marijuana.”  Is again, a non-issue. The caregiver is again immune from supplying said information due to the confidentiality of said information.

 

Further, by the same reasoning, their assertion that the defendant’s inability to name each patient’s certifying physician constitutes a violation, is also a non-issue.

 

It is unclear whether the prosecution's demand that witness's divulge confidential information, constitutes a violation of the law in itself. This determination is for the courts to decide.

 

The prosecution cited the plant count as being a factor in denying a dismissal  under section 4. The defendant denied having the 77 plants that the police stated they counted. He stated that a number of the plants that were counted had already been cut down. They were no longer growing plants. This makes them a combination of usable marijuana, once dried, and plant matter such as stalks.

 

Sec. 4. (a) states in part that in addition to the 12 plants allowed. "Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this (total plant count) amount". Therefore these plants are exempt from the count, and the caregivers stated count of 71 plants should have allowed for a dismissal under section 4.

 

In addition, the count could be seen as irrelevant. Section 8 (2) states that the patient and the patient's primary caregiver, if any, may be 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.

 

As with any plant, yields differ with the particular strain of the plant. Some strains have a higher yield, some a lower yield.

 

A reasonable person may conclude that Section 8 (2) provides relief from the restrictions of complying with the 12 plant limit that the act suggests for each qualifying patient. It could be necessary to grow more than the 12 plants to assure an 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.

 

As with any crop, it is difficult to predetermine yield, and it would be prudent to plant more and have an overage, than to plant less, and be unable to assure an uninterrupted availability.

 

Having a surplus should not be an issue as the surplus could be either destroyed, or donated to the needy.

 

71 or 77 plants may seem like a lot, but the growing of a plant from start to harvest can take as long as eight months, perhaps longer. Much depends on the particular strain of the marijuana. The inclusion of the language "reasonably necessary quantity", appears to address this issue.

 

This case is the quintessential MMMA case. No major violation was cited. The defendant was not selling marijuana to children, nor was he growing thousands of plants. This a case where an ordinary citizen was attempting to alleviate his own pain, and the pain of his patients.

 

Sec. 6 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

 

The moment Medical Marijuana was brought up, and the defendant was able to provide documentation, he should have been left alone. 

 

The State has introduced no evidence that there was probable cause to move the detective to try and gain entry into the defendant's home. They showed no evidence that would suggest anything suspicious was happening. "a registry identification card shall not constitute probable cause or reasonable suspicion" Why did the detective even try and gain entry? 

 

The defendant was acting within the scope and the spirit of the MMMA. He had an enclosed locked facility. Although not locked when the police came in, there was no evidence that the plants were in danger of being accessed by persons other than the caregiver.The house itself was locked and needed to be unlocked to allow entry by the police. That should suffice.

 

The defendant had the requisite number of plants. The question of plants "not growing" (cut down) has been addressed by the statute as not being allowed in the count. Detective Ferguson should have known that. The defendant had all the documentation to support his grow operation. There was no need to ask to see the defendant's grow once that was established.

 

If this defendant is denied the dismissal he deserves, then you might as well tell every patient and caregiver in the State of Michigan that their cries for relief are going to be denied by a deaf government who just plain dislikes this law, and will punish and imprison anyone who tries to act under it.

 

Just as a motorist caught speeding cannot claim ignorance of the law as a defense, there is no question that the courts assume he knows the law, then the reverse must also apply. The court cannot claim a person was ignorant of this law as a means of prosecuting them.

 

Everything the defendant was asked to produce at the scene was produced. Was the door locked? Perhaps not, but with everything else in order, there was no cause to arrest this person.

 

As ignorance of the law by a defendant is no excuse, it should hold that no excuse should be allowed because a police officer did not know the difference between a plant that should be counted, and those that should not.

 

 

It is my belief that the trial court, and subsequently the CoA, erred in their decision to deny, first, a dismissal under section 4, or in absence of that, the right of the defendant to present an affirmative defense under section 8

 

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My own case is in abeyance waiting on the results of this case and people v Tuttle.

 

I've been forbidden to use MM for nearly two years now, and as a result my health has spiraled down to the point I can hardly walk. I use a walker, but with great difficulty, and with a lot of pain. 

 

Going to meetings is out of the question. The same goes to attending others court cases which I used to do. I can no longer grow.

 

My existence is waking up, taking many pills, being in a lot of pain, and returning to bed.

 

I had a motion to change my bond to allow me to go back to using my MM, but despite my physician stating in open court that he wants me to have it reinstated, the judge ruled against me. I really don't think I can last another year.

Edited by Joel
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file an interloculatory appeal on the judges decision about bond ?

 

file a motion to dismiss saying 333.7401 does not apply to MCL 333.26424 (the MMMA) because its inconsistent with the ACT. 7401 says marijuana has no medical benefit and yet 333.26421-333.26430 says it does have medical benefit.

 

therefor, as in people v koon, all other acts inconsistent with the MMMA do not apply.

Edited by t-pain
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Will Mr. Kormon file any briefs in these cases zap? Is he defending either?

 

 

You are right on just about all counts Joel, with the exception the inference that possession of a card is necessary to bring a sec. 8 affirmative defense. Any person can bring the defense in any prosecution involving cannabis, with or without a registration card. Perhaps that's a minor point, but still worth mentioning. When we land in a courtroom sec. 8 is just about all we have, unless the court dismisses on a sec. 4 motion, which not all judges do and cannot be counted on. You are obviously painfully aware of that. 

 

The COA Judges have been especially reactionary fools (or is it tools?) regarding the issues and have been b!tch slapped by the Supreme Court more than once. i expect it will happen again in these cases. The lower courts are a confused mix of inept judges, although there are those who are up to speed and who administer the law well. 

Edited by GregS
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the supreme court said previously that everyone gets a sec8 hearing.

 

the CoA has been ignoring this for a while now.

 

 

Yes

 

do you know why ? 

 

I feel its because of the new Bills coming down soon and that part will change no one will get their case in front of a jury even today its hard to get a jury trial its up to the judge

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Will Mr. Kormon file any briefs in these cases zap? Is he defending either?

 

 

You are right on just about all counts Joel, with the exception the inference that possession of a card is necessary to bring a sec. 8 affirmative defense. Any person can bring the defense in any prosecution involving cannabis, with or without a registration card. Perhaps that's a minor point, but still worth mentioning. When we land in a courtroom sec. 8 is just about all we have, unless the court dismisses on a sec. 4 motion, which not all judges do and cannot be counted on. You are obviously painfully aware of that. 

 

The COA Judges have been especially reactionary fools (or is it tools?) regarding the issues and have been b!tch slapped by the Supreme Court more than once. i expect it will happen again in these cases. The lower courts are a confused mix of inept judges, although there are those who are up to speed and who administer the law well. 

  Thanks to the Redden and Clark case

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Yes

 

do you know why ? 

 

I feel its because of the new Bills coming down soon and that part will change no one will get their case in front of a jury even today its hard to get a jury trial its up to the judge

Bob, the SC could not have been more clear that sec. 8 must be permitted in the King/Kolanek unanimous decision and in their appendix to those cases, something that is uncommon, and when material questions of fact arise, the case must go to a jury. Will you please stop telling us the sky is falling? We know better.

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Bob, the SC could not have been more clear that sec. 8 must be permitted in the King/Kolanek unanimous decision and in their appendix to those cases, something that is uncommon, and when material questions of fact arise, the case must go to a jury. Will you please stop telling us the sky is falling? We know better.

Thaks the next time i get a call from someone that is scared from being raided i will give them your phone # you can tell them

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Moving that direction will not get him out in less than a year. I do not have all the context on the case, and not enough to make a recommendation of whether or not to plea. I don't even know if an offer is on the table. I don't even know the judge. I do know that it is an awful position to have your case stayed for an unspecified period of time and have rigid bond conditions disallowing medical marijuana use. And really, I do not "want" anything, and even if I did, what I want does not matter, only what the defendant wants.

MARTHA D. ANDERSON

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Thaks the next time i get a call from someone that is scared from being raided i will give them your phone # you can tell them

I'll be kind enough to explain the ins and outs of the defense. There are complicated issues, but I won't tell them that they are not entitled to all due process required by law. Your case had nothing to do with establishing precedent in sec. 8 issues. You quit and took a plea before the Supreme Court could rule. The lower court, was it not District Court?, ruling does not establish that, as do no opinions at that level of the judiciary. We appreciate that you had hardship Bob, but you mishandled your end of the case. I deal in facts. If there is anything inaccurate here, speak up. 

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I do believe that are case had everything to do with  sec. 8 issues. maybe you missed the C.O.A opinion of are case

I did not miss the fact that you backed out before the case was concluded by the SC, leaving the COA decision standing. Judge O'Conell piped up with his thirty page schit strewn diatribe, and the issues were, for the most part, left hanging. You took a plea Bob. There is no getting around that. It is because of that I ask that you quit with the repeated, and repeated, and repeated insistence that we are not permitted the full protection of the law. We heard you the first time. So if the COA had opined that you were entitled to the sec. 8 defense, why then did you not use it in the lower courts on remand. and why did you drop your SC appeal and plead?

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Ask a POW. A person can't stand up to torture indefinitely, everyone has a breaking point.

 

Those who haven't been through a protracted trial have no way of knowing the pressure faced by the defendant. The State has unlimited resources and yours dwindle rapidly.

 

There is always a sword hanging over your head, the original charge plus the chance of breaking any bond terms the court might have set.

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  • 1 month later...

The Physician Attestation form signed by the physician specifies that the physician attests that the information entered on the certification is true and accurate. The physician attests that they are in compliance with the Michigan Medical Marihuana Act, Administrative Rules, and all amendments.

 

This all-encompassing statement assures that any definition the prosecution or the courts could derive from the language of the act, is already attested to by the physician. LARA’s inclusion of the preceding statement, and their subsequent approval and issuance of identity cards, indicates that the agency has investigated and concluded that the statement is indeed factual.

are you sure that was in the forms when hartwick was convicted? they changed the forms a few times now...

 

heres all of the questions the msc wants answered from hartwick and tuttle.

(1) whether a defendant’s entitlement to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., is a question of law for the trial court to decide;

 

(2) whether factual disputes regarding § 4 immunity are to be resolved by the trial court;

 

(3) if so, whether the trial court’s finding of fact becomes an established fact that cannot be appealed;

 

(4) whether a defendant’s possession of a valid registry identification card establishes any presumption for purposes of § 4 or § 8;

 

(5) if not, what is a defendant’s evidentiary burden to establish immunity under § 4 or an affirmative defense under § 8;

 

(6) what role, if any, do the verification and confidentiality provisions in § 6 of the act play in establishing entitlement to immunity under § 4 or an affirmative defense under § 8; and

 

(7) whether the Court of Appeals erred in characterizing a qualifying patient’s physician as issuing a prescription for, or prescribing, marijuana.

 

(1) whether a registered qualifying patient under

the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., who makes

unlawful sales of marijuana to another patient to whom he is not connected through the

registration process, taints all aspects of his marijuana-related conduct, even that which is

otherwise permitted under the act;

 

(2) whether a defendant’s possession of a valid

registry identification card establishes any presumption for purposes of § 4 or § 8;

 

(3) if not, what is a defendant’s evidentiary burden to establish immunity under § 4 or an

affirmative defense under § 8; and

 

(4) what role, if any, do the verification and

confidentiality provisions in § 6 of the act play in establishing entitlement to immunity

under § 4 or an affirmative defense under § 8.

Edited by t-pain
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those questions are in the msc order. they are the questions which the MSC will address.

 

you can read them at the docket sites for hartwick and tuttle (scroll down to the bottom of the page for the newest items). specifically its in

06/11/2014 51 SCt Order: Application - Grant

 

here is tuttles docket. you can find hartwick at the same courts.mi.gov website... i'm just getting lazy.

http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=146392&CourtType_CaseNumber=1

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those questions are in the msc order. they are the questions which the MSC will address.

 

you can read them at the docket sites for hartwick and tuttle (scroll down to the bottom of the page for the newest items). specifically its in

06/11/2014 51 SCt Order: Application - Grant

 

here is tuttles docket. you can find hartwick at the same courts.mi.gov website... i'm just getting lazy.

http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=146392&CourtType_CaseNumber=1

 

 

Thanks for all of your post

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are you sure that was in the forms when hartwick was convicted? they changed the forms a few times now...

 

heres all of the questions the msc wants answered from hartwick and tuttle.

 

 

(1) whether a defendant’s entitlement to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., is a question of law for the trial court to decide;

(2) whether factual disputes regarding § 4 immunity are to be resolved by the trial court;

 

(3) if so, whether the trial court’s finding of fact becomes an established fact that cannot be appealed;

 

(4) whether a defendant’s possession of a valid registry identification card establishes any presumption for purposes of § 4 or § 8;

 

(5) if not, what is a defendant’s evidentiary burden to establish immunity under § 4 or an affirmative defense under § 8;

 

(6) what role, if any, do the verification and confidentiality provisions in § 6 of the act play in establishing entitlement to immunity under § 4 or an affirmative defense under § 8; and

 

(7) whether the Court of Appeals erred in characterizing a qualifying patient’s physician as issuing a prescription for, or prescribing, marijuana.

 

(1) whether a registered qualifying patient under

the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., who makes

unlawful sales of marijuana to another patient to whom he is not connected through the

registration process, taints all aspects of his marijuana-related conduct, even that which is

otherwise permitted under the act;

 

(2) whether a defendant’s possession of a valid

registry identification card establishes any presumption for purposes of § 4 or § 8;

 

(3) if not, what is a defendant’s evidentiary burden to establish immunity under § 4 or an

affirmative defense under § 8; and

 

(4) what role, if any, do the verification and

confidentiality provisions in § 6 of the act play in establishing entitlement to immunity

under § 4 or an affirmative defense under § 8.

 

 

Thanks t-pain, It is great to see the issues clearly laid out. I'm betting that the SC is winding up to give the COA another deserved asswhoopin'. Those schitheads will never get it right. I just reread both case opinions and the stuff they call jurisprudence would not make it past second grade. It is not even close to rational. We should have much clearer guidance after the SC decision is handed down. 

 

The entire thing is being driven into the ditch by the fools at the Appeals Court. The rulings as they now stand make any defense past absolutely compliant sec. 4 participation absolutely useless. There are reasons for the AD, and the courts cannot arbitrarily discount them or disregard them out of hand as they have here or tack something on to bluster their way through. They obviously cannot dazzle with brilliance, but think they can baffle us with bullschit. It is insane that a court of law would state, as has been here with clearly and unequivocally fallacious reasoning, that it is without effect, which is precisely the case. They are so clearly and utterly demanding burdens of proof that exceed those required in the Act as to be laughed at, and I'm betting Chief Justice Young is doing just that. Watching them write fantasy rules derived only from their fertile imaginations and inserting them into case law makes me to pull out my hair. Sec. 8 needs to be the biggest, baddest thing going, and if properly adjudicated, can be that. The law cannot responsibly treat it as though its provisions don't exist, negating them with made up rules without regard to the statute, pulling them out of thin air. I am particularly interested to see how the Court rules regarding evidentiary requirements.

 

What is the conventional wisdom regarding a hearing date?

Edited by GregS
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