Our Section 8 Defense And Court Drama...

[GregS]

Tuttle doesn't affect cases that occurred after PA 512 went into effect.  The elements of the bonafide relationship were established then.  Prior to the medical board putting out guidance in Jan 2012 I believe, it was case by case with no standard, and in the middle time after the board put out the guidance and before it was codified in law (Tuttle) real skill and expert witnesses are required.  As you know the board guidance had two parts, one was the guidelines and the second was suggestions.  The guidelines were very similar to PA 512 and the suggestions rely heavily on the physician's opinion and the value of that opinion in the eyes of the court.

 

But hey, what do I know?  I'm just confirming it is my signature on the form.

 

Dr. Bob

...and that you and your patient swear and attest to being compliant with the law.

Edited August 15, 2014 by GregS

[Wild Bill]

Zap, in your experience with Section 8 proceedings, if the Dr. is only testifying to facts, how does the defendant establish the medical need for usable MMJ and number of plants?  Does the court simply accept the defendant's own assertion that he needed that much?

My doctor always asks how much I need to use on a bad day. He doesn't recommend a dosage but the amount I use is in his notes from my check up.

[Dr. Bob]

Marijuana is a titrated medication, you take enough to achieve the desired effect limited only by tolerance and function.

 

That said there are certain guidelines that can be followed (being able to state and support these opinions is the role of the expert witness in court).

 

1/  There is no 'dosage' for marijuana as a dosage is too closely tied to 'prescription'.  Offering guidance on the use of a schedule 1 controlled substance is allowed under 'Freedom of Speech', whereas writing a prescription is a violation of the CSA.  Therefore I can offer guidance, but it is non-binding and merely a suggestion based on training, experience and understanding of the medication.

 

2/  A 'dosage' is related to two factors- what is an effective dose to treat the condition (in the case of cannabis this is so variable as to make the term meaningless- some judgment can be offered in opinion form about a 'reasonable amount' based on interview of the patient, their current use, and the effect of that use, but it only applies to that patient).  The second purpose of 'dosage' is to make a determination of 'safe dosage', beyond which there is a risk of 'over dosage'.  Again, with cannabis this has no bearing as the only way to overdose on it is to have a bail fall on you from an airplane.

 

3/  We can, after much research, state that MOST people will use 1 ounce or less per week and get good control of their symptoms, BUT this is widely variable and even 2-3x as much should be considered 'reasonable' based on condition, symptoms, etc.  Again this is an OPINION by an expert, and the value of that opinion is based on the credibility of the expert.

 

4/  There are some guidelines from the federal government and other states that can come into effect.  For example the federal dosage of smoked marijuana is 9 grams a day, roughly an ounce every 3 days.

 

As Zap has said, this is the sticky stuff.  My spin on that is that if it is clear cut it will be dismissed prior to trial on the strength of the paperwork alone, but if it does go on to court it is by definition 'sticky' and needs the services of an expert.

 

Dr. Bob

[t-pain]

Zap, in your experience with Section 8 proceedings, if the Dr. is only testifying to facts, how does the defendant establish the medical need for usable MMJ and number of plants?  Does the court simply accept the defendant's own assertion that he needed that much?  Or is there some other expert witness who would testify as to what quantities are needed for the patient's medical use?

 

 

This is another questionable situation posed by Hartwick and Tuttle, and the ball is in the air.

 

interesting. in the definitions it states

(3) In the physician's 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.

 

so if your chronic pain causes insomnia, you can use marijuana to treat your insomnia.

 

 

to answer your question, 

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

 

(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

 

its fairly clear that sec8 does not allow a prosecutor to rebut or challenge how much a patient uses or needs.

 

sec4 does allow someone to rebut based on amounts though.

 

luckily sec10 and the supreme court agrees, each section is independent and you cant make a sec8 stand in all of the sec4 limits.

[Highlander]

 

 

 

interesting. in the definitions it states

(3) In the physician's 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.

 

so if your chronic pain causes insomnia, you can use marijuana to treat your insomnia.

 

 

to answer your question, 

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

 

(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

 

its fairly clear that sec8 does not allow a prosecutor to rebut or challenge how much a patient uses or needs.

 

sec4 does allow someone to rebut based on amounts though.

 

luckily sec10 and the supreme court agrees, each section is independent and you cant make a sec8 stand in all of the sec4 limits.

 

You left out an important clause:

 

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:

(1) A physician 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 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 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; and

(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.

 

What evidence is necessary to prove #2?

[t-pain]

like i said, nowhere in the law does it allow a prosecutor to rebut what is reasonably  necessary.

[GregS]

Marijuana is a titrated medication, you take enough to achieve the desired effect limited only by tolerance and function.

 

That said there are certain guidelines that can be followed (being able to state and support these opinions is the role of the expert witness in court).

 

1/  There is no 'dosage' for marijuana as a dosage is too closely tied to 'prescription'.  Offering guidance on the use of a schedule 1 controlled substance is allowed under 'Freedom of Speech', whereas writing a prescription is a violation of the CSA.  Therefore I can offer guidance, but it is non-binding and merely a suggestion based on training, experience and understanding of the medication.

 

2/  A 'dosage' is related to two factors- what is an effective dose to treat the condition (in the case of cannabis this is so variable as to make the term meaningless- some judgment can be offered in opinion form about a 'reasonable amount' based on interview of the patient, their current use, and the effect of that use, but it only applies to that patient).  The second purpose of 'dosage' is to make a determination of 'safe dosage', beyond which there is a risk of 'over dosage'.  Again, with cannabis this has no bearing as the only way to overdose on it is to have a bail fall on you from an airplane.

 

3/  We can, after much research, state that MOST people will use 1 ounce or less per week and get good control of their symptoms, BUT this is widely variable and even 2-3x as much should be considered 'reasonable' based on condition, symptoms, etc.  Again this is an OPINION by an expert, and the value of that opinion is based on the credibility of the expert.

 

4/  There are some guidelines from the federal government and other states that can come into effect.  For example the federal dosage of smoked marijuana is 9 grams a day, roughly an ounce every 3 days.

 

As Zap has said, this is the sticky stuff.  My spin on that is that if it is clear cut it will be dismissed prior to trial on the strength of the paperwork alone, but if it does go on to court it is by definition 'sticky' and needs the services of an expert.

 

Dr. Bob

Who then has responsibility to establish a necessary amount? Does the law allow that as a requirement?

[GregS]

 

 

 

interesting. in the definitions it states

(3) In the physician's 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.

 

so if your chronic pain causes insomnia, you can use marijuana to treat your insomnia.

 

 

to answer your question, 

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

 

(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

 

its fairly clear that sec8 does not allow a prosecutor to rebut or challenge how much a patient uses or needs.

 

sec4 does allow someone to rebut based on amounts though.

 

luckily sec10 and the supreme court agrees, each section is independent and you cant make a sec8 stand in all of the sec4 limits.

And you are not required to. The law does not permit conviction under sec. 8 for anything allowed despite sec.7.

Edited August 15, 2014 by GregS

[Highlander]

like i said, nowhere in the law does it allow a prosecutor to rebut what is reasonably  necessary.

Yes. Seems to be a reasonable conclusion that the PA can't rebut what is reasonably necessary. But the law requires that evidence supports what is reasonably necessary. So in what form does that evidence come? Something tells me that a judge won't accept a patient's own testimony that "that's how much I needed." Also section 8 requires that the patient AND the CG (if there is one) together don't possess more than is reasonably necessary.

 

How do you see this evidence being presented?

[t-pain]

you missed what i quoted from the law. sec 8 is PRESUMED VALID if the patient provides evidence on reasonable necessary amount.

 

presumed valid and no one can rebut it.

 

how would i see the evidence being presented by a defendant?

i guess just written testimony. 'i use xx amount per day, i only grow 1x per year, the amount i have is needed until i can grow xx amount next year'.

Edited August 15, 2014 by t-pain

[t-pain]

Something tells me that a judge won't accept a patient's own testimony that "that's how much I needed." 

 

 

the judge has no power to deny a patients testimony. unless you can point to something in the MMMA that says otherwise?

 

the patients evidence is PRESUMED VALID. no rebuttals, no denials.

 

maybe i am wrong. i know judges have denied sec8 all over. lets continue debating this. i am interested in getting to the bottom.

Edited August 15, 2014 by t-pain

[t-pain]

i know in people v king they said 'if no question of fact remains, the defense is valid'.

 

 

As long as a defendant can establish these elements, no question of fact
exists regarding these elements, and none of the circumstances in § 7(b), MCL
333.26427(b), exists, then the defendant is entitled to dismissal of the criminal charges.

 

these 'elements' are the three prongs.

 

 

so how can there be a question of fact if its presumed valid?

 

 

9. If a defendant moves for dismissal ofcriminal charges under § 8 and at the
evidentiary hearing establishes prima facie evidence of all the elements of the § 8
affirmative defense, but material questions of fact exist, then dismissal of the charges is
not appropriate and the defense must be submitted to the jury.

 

 

prima facie = meaning on its first encounter or at first sight.

question of fact = A question of fact is a factual dispute between litigants that must be resolved by the jury at trial. It is an issue that is material to the outcome of the case and requires an interpretation of conflicting views on the factual circumstances surrounding the case.

 

so the supreme court said a prosecutor can rebut anything. that sucks right there.

 

 

 

10. If a defendant moves for dismissal ofcriminal charges under § 8 and at the
evidentiary hearing fails to present evidence from which a reasonable jury could conclude
that the defendant satisfied the elements of the § 8 affirmative defense, and there are no
questions of fact, then the circuit court must deny the motion to dismiss the charges. In
this instance, the defendant is not permitted to present the § 8 defense to the jury. Rather,
the defendant’s remedy is to apply for interlocutory leave to appeal. 

i think this means if a defendant failed to provide any evidence, or if the evidence was incorrect , in the case of kolanek they explain this.

 

In Kolanek, no reasonable jury could have concluded that Kolanek satisfied the
elements of the § 8 affirmative defense. As explained, Kolanek did not meet the
requirements of § 8(a)(1) because he did not obtain a physician’s statement after
enactment of the MMMA and before the commission of his offense. Thus, Kolanek
failed to present evidence supporting the affirmative defense under § 8. Because no
reasonable jury could have concluded that Kolanek isentitled to the defense as a matter
of law, he is precluded from presenting evidence of this defense at trial.

Edited August 15, 2014 by t-pain

[GregS]

i know in people v king they said 'if no question of fact remains, the defense is valid'.

 

 

 

these 'elements' are the three prongs.

 

 

so how can there be a question of fact if its presumed valid?

The facts of a case are particular to it. They spell out the events between the parties. 

[Highlander]

i know in people v king they said 'if no question of fact remains, the defense is valid'.

 

 

 

these 'elements' are the three prongs.

 

 

so how can there be a question of fact if its presumed valid?

 

 

 

 

prima facie = meaning on its first encounter or at first sight.

question of fact = A question of fact is a factual dispute between litigants that must be resolved by the jury at trial. It is an issue that is material to the outcome of the case and requires an interpretation of conflicting views on the factual circumstances surrounding the case.

 

so the supreme court said a prosecutor can rebut anything. that sucks right there.

 

"As long as a defendant can establish these elements, no question of fact

exists regarding these elements"

 

Your position seems to be that if the defendant testifies that he needed 'that much' MJ, then he established the element, and no question of fact exists.

 

Compare it to a similar affirmative defense - justifiable homicide. 

 

A defendant can claim "I feared for my life, so I shot him." 

 

I think anyone would agree that with only that much evidence, a question of fact remains.  Additional evidence is needed in support of the defendant's position.

 

Take an extreme example...a guy with 10 pounds of MJ and 1,000 plants.  He takes the stand and testifies, "I need that much MJ to treat my condition."  Absent any other supporting evidence, the defendant is relying on hope that his own statement is sufficient to demonstrate that the "evidence shows" he needed that much.  I'm pretty liberal when it comes to MMJ as a whole, but I can't see how any reasonable mind could conclude that this hypothetical defendant's statement is evidence that shows he needed that much.

[Highlander]

you missed what i quoted from the law. sec 8 is PRESUMED VALID if the patient provides evidence on reasonable necessary amount.

 

presumed valid and no one can rebut it.

 

how would i see the evidence being presented by a defendant?

i guess just written testimony. 'i use xx amount per day, i only grow 1x per year, the amount i have is needed until i can grow xx amount next year'.

Not misquoting. You are saying "if the patience provides evidence." There is a big difference between a patient "providing evidence" and a patient "provides evidence that shows...." You need to ask yourself what the difference is between providing evidence vs provides "evidence that shows" and why the author of the law decided to use the phrase "provides evidence that shows" rather than "provides evidence that...."

[FranksHotPeppersAndMarijuana]

The patient can provide as much evidence as the patient wants but as highlander said it needs to "show..." So the judge needs to find that the evidence "shows..." by 51%. Credibility of a defendant in a case like that would probably require a lot more than their own testimony to reach the 51%. If you get a traffic ticket and contest it and the officer says you were speeding and you say you were not the cops needs to prove that there was a 51% chance you were speeding. Most outcomes in cases like that would turn on credibility because it is generally assumed the cop had no reason to lie and you did have a reason to lie. Same with the section 8.

[Dr. Bob]

Prosecutors can attempt to rebut evidence present concerning amounts.  For example if you claim your condition requires you to use a pound of cannabis a day, obviously they are going to attempt to rebut that by making you prove WHY you need that much.  Another example of a prosecutor being able to rebut your claim concerns the last prong, all marijuana was used for your own use.  All they have to do is show you gave some to another person, that is proof you had more than you personally needed.

 

But the conversation was about section 8 and the role of the expert witness.  Highlander asked a good question.  If the doctor, as Zap maintains, is not an expert witness, how do you introduce an opinion as to what is reasonable, and how much needs to be on hand?  For the moment assume, as Zap maintains, that the doctor is just a witness of fact and essentially only will testify as custodian of records- yes the patient was there and was seen, yes that is the doctors signature, yes they were offered follow up.  Beyond that, the medical record is expected to speak for itself, and the jury/court can form their own opinions about what is in or not in the record and decide if it meets the standard.

 

How is the attorney to prove the case?

 

Dr. Bob

[MiMedical]

We just want this over and done, we hurt, we're exhausted, and we want our lives back on track and fight for the rights of Michigan. No matter what the cost is.

 

 

Thanks for everyone's suggestions also.

Edited August 16, 2014 by MiMedical

[jeff from bad axe]

I won on a sec 8 hearing.They offered me many pleas.There are three prongs you as defendant must meet.They the police said I had 85 plants.I still won the case.

[MiMedical]

Yea that's great news Jeff, you two went through hell and back again..

[bobandtorey]

We just want this over and done, we hurt, we're exhausted, and we want our lives back on track and fight for the rights of Michigan. No matter what the cost is.

 

 

Thanks for everyone's suggestions also.

 

 

How long have you been inn Court ?

[MiMedical]

Almost two years, I know, you did it for almost five, it sucks.

[bobandtorey]

Wow! 

That is a long time with out me going back and reading this 

 

What County are you in ?

[t-pain]

Not misquoting. You are saying "if the patience provides evidence." There is a big difference between a patient "providing evidence" and a patient "provides evidence that shows...." You need to ask yourself what the difference is between providing evidence vs provides "evidence that shows" and why the author of the law decided to use the phrase "provides evidence that shows" rather than "provides evidence that...."

 

keep trying, we need to beat this law over the head until we can agree on a consensus.

 

8 b says

 

 

(b) 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 elements listed in subsection (a).

 

 

8b says a patient only needs to show the elements listed and the charges shall be dismissed. not show to 51%, not convince a judge, not rebut a prosecutor trying to flower with you. the supreme court has ruled that you cannot nullify any part of the act, so if 8a says evidence shows and 8b only says shows, the supreme court said in king/kolanek that its prima facie evidence, as in evidence at face value.

 

 

prima facie

: (pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.

 

so the prosecution has to have substantial contradictory evidence that you dont use 1 pound a month.

expert testimony from the prosecutor about 'marijuana patients' is heresay.

 

what kind of evidence would a prosecutor be able to find/produce , assuming you were a legit patient and used 1 pound a month?

 

maybe i'm on the wrong track. all i know is i'd be raising objections to any prosecutors trying to harm my sec8.

[GregS]

keep trying, we need to beat this law over the head until we can agree on a consensus.

 

8 b says

 

 

 

 

8b says a patient only needs to show the elements listed and the charges shall be dismissed. not show to 51%, not convince a judge, not rebut a prosecutor trying to flower with you. the supreme court has ruled that you cannot nullify any part of the act, so if 8a says evidence shows and 8b only says shows, the supreme court said in king/kolanek that its prima facie evidence, as in evidence at face value.

 

 

prima facie

: (pry-mah fay-shah) adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.

 

so the prosecution has to have substantial contradictory evidence that you dont use 1 pound a month.

expert testimony from the prosecutor about 'marijuana patients' is heresay.

 

what kind of evidence would a prosecutor be able to find/produce , assuming you were a legit patient and used 1 pound a month?

 

maybe i'm on the wrong track. all i know is i'd be raising objections to any prosecutors trying to harm my sec8.

Which is precisely why I wrote the recommended Patient/Caregiver Agreement to Engage in the Medical Use of Marijuana in short, precise terms. Sec. 8 is just that simple, and is not at all superfluous. Subsequently, it is not necessary to be long winded about the elements in court and say anything that can be used against you. Granted, it does not specifically speak to possession limits except to state that the patient agrees to conform to the law in the medical use of marijuana, and that is because the law does not require more than that. MJ is a self titrating substance that every responsible physician should recommend as needed using medical protocols to spell it out to be taken as needed. That is not required under the law, but there is the argument from the opposition that dosing must be closely specified, Hartwick/Tuttle notwithstanding. That requirement, if at all, belongs more with the certifying physican than the caregiver, but ultimately it is and should be the legal prerogative of the patient to state their needs. Those judges who have come up with requirements not found in sec. 8, and we know who they are, pull that schit out of thin air with no regard to the limitation in the law from that. This should be so simple a caveman can do it.

Edited August 17, 2014 by GregS