Our Section 8 Defense And Court Drama...

[MiMedical]

In laments terms, can they rebut or can they not, that is the question....

[GregS]

And what of the rules specifying the burden of proof? Is the proof not prima fascie required to establish the totality of the elements that once estabished, well then madame prosecutor, knock yourself out?

Edited August 20, 2014 by GregS

[MiMedical]

So, if the judge isn't to weigh the evidence or assess the credibility, who determines it goes to the jury?

[bobandtorey]

The Judge 

[GregS]

Forget it Frank. You're not worth my time.

[GregS]

A doctor as an expert witness can provide an opinion on amounts, an expert witness from the prosecution (ie another doctor) could try to refute that.  But a patient, with a doctor's opinion confirming the reasonableness of their dosages, goes a long way to making the case.

 

Doctors can and do have a difference of opinions, but most of the time it is Dr. A likes motrin and Dr. B likes naprosyn, but both a and b agree the other's therapy is reasonable.  You would be hard pressed to find Dr. A saying 1 ounce a week is reasonable and Dr. B saying that is completely unreasonable.  On the other hand, if Dr. A says a pound a week is needed, Dr. B might disagree and the jury will decide which expert has the coolest cuff links.  In that case their own experience and common sense will help them decide if Dr. A or B is out of line and unsupported.

 

BUT given the defense brought an expert that agreed with the defendant, the prosecution must disprove.

 

Dr. Bob

And at 3200 bucks a crack we should all queue up glassy eyed with our wallets hanging open at your door. We understand. Most medical witnesses testify for about half that.

Edited August 25, 2014 by GregS

[FranksHotPeppersAndMarijuana]

Zapatosunidos, you are narrowly defining the term "weigh evidence." You are also selectively quoting the court. Since I am not a legal professional I will defer to your legal definition of weighing evidence and of assessing credibility since maybe it means something slightly different than it does in plain English. But, in Kolanek the court said "If, for example, a defendant raises a defense but fails to produce evidence from which a reasonable jury could conclude that the elements of the defense have been met then the defendant is not entitled to the defense instruction and the jury is precluded from considering the defense."

 

That means the court is weighing the evidence. If the evidence is sufficient to where the jury could conclude that the elements of the defense have been met then the defendant is entitled to use the defense. How is that not weighing the evidence??? Of course it is weighing the evidence. If there isn't enough evidence for the jury to conclude that the elements have been met then no win on your section 8 hearing. Likewise, witness testimony is evidence. If you get your good buddy to testify that you needed marijuana for your injury then the question is whether his testimony can contribute enough to the pile of evidence required to win your section 8.

 

The court also said in Kolanek at a section 8 hearing "Conflicting evidence, for example, may be produced regarding the existence of a bona-fide doctor-patient relationship or whether the amount of marijuana possessed was reasonable."  What? Is the court suggesting that the evidence might be rebutted by the prosecutor? Yes.

 

Addressing tpain and his constant  obsession with prima facie evidence I would suggest you read the entire court opinion and not take things out of context. The court specifically addresses the issue. It says that if the defendant establishes a prima facie case for the defense but that there are still questions of fact then the defendant doesn't win at the section 8 hearing. The court then gives the example of rebuttal evidence being presented as I quoted in paragraph 2 above. So if rebuttal evidence about the doctor-patient relationship or amounts are presented then it isn't likely you win your section 8.

 

For GregS who continually insists that marijuana is inherently self-titrating I would suggest you examine the issue more closely because that is an opinion and not a fact. I am on your side of the fence on this issue but there are flaws in that argument. If you have read Neil Rockind's blog on this issue he insists that it should be seen as self-titrating as well and that the patient should use as-needed. He then goes on to compare it to OTC meds like ibuprofen. Again, I agree that it should be self-titrated but I'm not the judge or the supreme court. The flaw in that argument is that OTC meds or prescription meds that are given to be taken "as needed" also have a ceiling on dosage amounts. Maybe your oxycontin is given as-needed but UP TO 2 tablets every 6 hours. So it technically is not as-needed it is only as-needed within a certain limitation. That is the achille's heal of the argument. It isn't my position but is certainly arguable. As-needed in the medical world doesn't give a patient license to swallow a whole bottle of oxycontin and it technically isn't given as-needed. It is given as-needed up to a certain amount.

[Dr. Bob]

Frank, don't bother with that one.  When you refute his 'cut and paste' arguments he'll just change the subject and attack in another direction with name calling and more silliness.  To have a debate, both sides must, at a minimum, understand the rules being discussed.  

 

Dr. Bob

[medmanmike]

A doctor as an expert witness can provide an opinion on amounts, an expert witness from the prosecution (ie another doctor) could try to refute that.  But a patient, with a doctor's opinion confirming the reasonableness of their dosages, goes a long way to making the case.

 

Doctors can and do have a difference of opinions, but most of the time it is Dr. A likes motrin and Dr. B likes naprosyn, but both a and b agree the other's therapy is reasonable.  You would be hard pressed to find Dr. A saying 1 ounce a week is reasonable and Dr. B saying that is completely unreasonable.  On the other hand, if Dr. A says a pound a week is needed, Dr. B might disagree and the jury will decide which expert has the coolest cuff links.  In that case their own experience and common sense will help them decide if Dr. A or B is out of line and unsupported.

 

BUT given the defense brought an expert that agreed with the defendant, the prosecution must disprove.

 

Dr. Bob

Let me take this expert testimony discussion and look at it from a different perspective.

 

I'm a MMMJ patient. I follow the letter of the law. I have a bona-fide relationship with my primary care physician. I meet with her twice a year and we discuss, and she records in my files, our discussion , my mj needs, my use, etc.

 

To be more proactive, and to be prepared in the event LEO comes knocking, what kind of questions, points of conversation should I being having with my dr.? Meaning, if I had to establish a meaningful dosage for a defense, if I had to have her come in to court as an expert witness, what can I do up front to "prepare" her as well as myself, to mount a "reasonable use" defense?

[bobandtorey]

Well i'am no Doctor but i would first make sure she would come to court some say they will but come time they won't Doctor do not like court rooms

 

 sorry but you will need  $$$$  also

[Dr. Bob]

Just make sure they are able to answer basic questions about cannabis and cite some sources to back up their opinion.  Denali and I DO support doctors in that position, a quick phone call and a discussion to help them prep is all it takes.  It is part of our program to encourage physicians to participate in the program.  We have some literature, studies, and other documentation they can bring if they need it. 

 

Just a professional courtesy.

 

Dr. Bob

[GregS]

Zapatosunidos, you are narrowly defining the term "weigh evidence." You are also selectively quoting the court. Since I am not a legal professional I will defer to your legal definition of weighing evidence and of assessing credibility since maybe it means something slightly different than it does in plain English. But, in Kolanek the court said "If, for example, a defendant raises a defense but fails to produce evidence from which a reasonable jury could conclude that the elements of the defense have been met then the defendant is not entitled to the defense instruction and the jury is precluded from considering the defense."

 

That means the court is weighing the evidence. If the evidence is sufficient to where the jury could conclude that the elements of the defense have been met then the defendant is entitled to use the defense. How is that not weighing the evidence??? Of course it is weighing the evidence. If there isn't enough evidence for the jury to conclude that the elements have been met then no win on your section 8 hearing. Likewise, witness testimony is evidence. If you get your good buddy to testify that you needed marijuana for your injury then the question is whether his testimony can contribute enough to the pile of evidence required to win your section 8.

 

The court also said in Kolanek at a section 8 hearing "Conflicting evidence, for example, may be produced regarding the existence of a bona-fide doctor-patient relationship or whether the amount of marijuana possessed was reasonable."  What? Is the court suggesting that the evidence might be rebutted by the prosecutor? Yes.

 

Addressing tpain and his constant  obsession with prima facie evidence I would suggest you read the entire court opinion and not take things out of context. The court specifically addresses the issue. It says that if the defendant establishes a prima facie case for the defense but that there are still questions of fact then the defendant doesn't win at the section 8 hearing. The court then gives the example of rebuttal evidence being presented as I quoted in paragraph 2 above. So if rebuttal evidence about the doctor-patient relationship or amounts are presented then it isn't likely you win your section 8.

 

For GregS who continually insists that marijuana is inherently self-titrating I would suggest you examine the issue more closely because that is an opinion and not a fact. I am on your side of the fence on this issue but there are flaws in that argument. If you have read Neil Rockind's blog on this issue he insists that it should be seen as self-titrating as well and that the patient should use as-needed. He then goes on to compare it to OTC meds like ibuprofen. Again, I agree that it should be self-titrated but I'm not the judge or the supreme court. The flaw in that argument is that OTC meds or prescription meds that are given to be taken "as needed" also have a ceiling on dosage amounts. Maybe your oxycontin is given as-needed but UP TO 2 tablets every 6 hours. So it technically is not as-needed it is only as-needed within a certain limitation. That is the achille's heal of the argument. It isn't my position but is certainly arguable. As-needed in the medical world doesn't give a patient license to swallow a whole bottle of oxycontin and it technically isn't given as-needed. It is given as-needed up to a certain amount.

Those other OTC drugs are toxic, whereas mj is not. The LD50 and therapeutic ratio of the drug have been found to be off the charts as therapeutic substances go, or for that matter many common foodstuffs, and a toxic dose impossible to consume in any fashion. Toxicity of the drug is so low as to be impossible to accurately quantify. It is impossible for marijuana to directly cause death. Please see DEA Administrative Law Judge Fancis Young's findings in the testimony given during his hearings on the matter. Mine is not a matter of opinion, but incontrovertible fact, and I have known this and other facts since I used medical marijuana as a topic in a public speaking course more years ago than I care to count. (http://www.ccguide.org/young88.php)

 

It is altogether clear your statements are matters of opinion without fact. And yes, you would do well to defer legal arguments to people trained in the law. t-pain may not be one of them, but he is one of us who has put a lot of time and energy into his understanding, deserves credit for that, and has much to offer.

Edited August 22, 2014 by GregS

[Dr. Bob]

This is an interesting concept- as needed up to a certain amount.  I would thing a recommendation or some guidance on what that ceiling amount would be, and so long as the patient did not exceed (without a defendable reason) that amount, it would be helpful in court.

 

As for the previous post, I find the last paragraph particularly amusing considering the source.  Lawyers know the law.  Many with a good, logical mind are very capable of drawing conclusions from the law as to what it means and how decisions are made, and they are personal rather than legal decisions.  Looking at a law and making a leap of logic to assume that somehow it means something else to suit individual needs or wants is not a very good way to do it.  Nor is cutting a pasting an isolated part of a law and using it to reach a desired (the key word is desired) conclusion, especially if that conclusion is refuted elsewhere in the law or by formal court opinions on what the law means.  Frank is attempting to explain legal logic to understand how and why things are interpreted in a certain way, and how evidence is handled by the court, and is doing a pretty good job of it.  He seems to know what he is talking about.

 

Dr. Bob

[GregS]

This is an interesting concept- as needed up to a certain amount.  I would thing a recommendation or some guidance on what that ceiling amount would be, and so long as the patient did not exceed (without a defendable reason) that amount, it would be helpful in court.

 

As for the previous post, I find the last paragraph particularly amusing considering the source.  Lawyers know the law.  Many with a good, logical mind are very capable of drawing conclusions from the law as to what it means and how decisions are made, and they are personal rather than legal decisions.  Looking at a law and making a leap of logic to assume that somehow it means something else to suit individual needs or wants is not a very good way to do it.  Nor is cutting a pasting an isolated part of a law and using it to reach a desired (the key word is desired) conclusion, especially if that conclusion is refuted elsewhere in the law or by formal court opinions on what the law means.  Frank is attempting to explain legal logic to understand how and why things are interpreted in a certain way, and how evidence is handled by the court, and is doing a pretty good job of it.  He seems to know what he is talking about.

 

Dr. Bob

Soo B*B. Do you or do you not agree that an unregistered caregiver is a thing? You never did produce facts or use legal logic to support your position they are not. More aptly your unabashed profiteering at our expense is more than likely a point of your arguments and is, to my mind, indefensible. You are no responsible judge of truth.

 

Now you want to put limits on a substance with no potential for harm. Is it just me or is that stupid? You are no patient. You are no caregiver. You fail us in your refusal to address our medical conditions. You are a craven profiteer and poorly trained doctor.

Edited August 22, 2014 by GregS

[MiMedical]

Soo B*B. Do you or do you not agree that an unregistered caregiver is a thing? You never did produce facts or use legal logic to support your position they are not. More aptly your unabashed profiteering at our expense is more than likely a point of your arguments and is, to my mind, indefensible. You are no responsible judge of truth.

 

Now you want to put limits on a substance with no potential for harm. Is it just me or is that stupid? You are no patient. You are no caregiver. You fail us in your refusal to address our medical conditions. You are a craven profiteer and poorly trained doctor.

I can already see Dr.Bob going in a court room with other federal experts and testify that cannabis has no deadly side effects, so blaze and have as much as you want.. That will be the day the plant goes free.. Till that happens, I think we just have to work with what we have.

[GregS]

I can already see Dr.Bob going in a court room with other federal experts and testify that cannabis has no deadly side effects, so blaze and have as much as you want.. That will be the day the plant goes free.. Till that happens, I think we just have to work with what we have.

What we have are facts that show conclusively no toxic harm. If you did not notice, a federal judge found it in a courtroom to have no deadly side effects already. Did you have something else in mind?

[Dr. Bob]

Personally I think cannabis is safe enough to be added to the water supply, and in certain places prozac too, but the courts don't care about that.  They want something to hang their hats on when it comes to supportable dosages.  And I respect Neil and his opinion on the need for 'ceilings' which is why I actually put some thought into that and made a comment.

 

As for Greg, for your attacks and name calling, I have only one logical response...

 

 

Take care-

 

Dr. Bob

[medmanmike]

Just make sure they are able to answer basic questions about cannabis and cite some sources to back up their opinion.  Denali and I DO support doctors in that position, a quick phone call and a discussion to help them prep is all it takes.  It is part of our program to encourage physicians to participate in the program.  We have some literature, studies, and other documentation they can bring if they need it. 

 

Just a professional courtesy.

 

Dr. Bob

Dr. Bob, who knew?  What a great service to provide.  

[Dr. Bob]

Dr. Bob, who knew?  What a great service to provide.  

 

You would be surprised how many I've been called on.  I have about 3 I am working with right now.  One of which is a child custody case.

 

Dr. Bob

[t-pain]

i'm curious when will dr bob will try cannabis for himself. ?

[Dr. Bob]

Part of my strategy has always been to be able to say to government officials that I support cannabis, not because I use it, but because it works and helps my patients. 

 

Maybe when my back, shoulder and knee get worse and I am given a choice between cannabis and narcotics.  Currently I don't require either.

 

Dr. Bob

[MiMedical]

What we have are facts that show conclusively no toxic harm. If you did not notice, a federal judge found it in a courtroom to have no deadly side effects already. Did you have something else in mind?

So perhaps we should just subpoena him to testify, would he be considered an expert though.

[GregS]

Let me know how that works out for you.

[MiMedical]

What we have are facts that show conclusively no toxic harm. If you did not notice, a federal judge found it in a courtroom to have no deadly side effects already. Did you have something else in mind?

[FranksHotPeppersAndMarijuana]

Dr. Bob the idea of ceiling on the medication is mine and not attributable to Neil Rockind. I pointed it out as a flaw in Rockind's position. He basically states that there should be no limit and he says why should there since OTC medication is use as needed. I am pointing out that his argument is a bad analogy because even though ibuprofen may be use as needed, it isn't technically use as needed because it has a ceiling as to limit.

 

GregS I do not argue whether marijuana has toxic effects. That isn't the point. If a doctor prescribes 800mg of ibuprofen as needed based on an 8 hour schedule he is doing that because 800mg is all that will help not because more would be toxic. I was once on 800mg of ibuprofen every 8 hours, which was at the time a prescription dose and the highest amount allowed by prescription. I also had several other usual medications that I had to take daily. One day I woke up in the evening because I dozed off watching tv. I went to take my meds and then to go to bed. In my foggy half asleep mind I mistakenly took 2 pills of 800mg ibuprofen and didn't realize the mistake until they were swallowed. I called the poison control line to see if I should force myself to vomit or go to the ER. They told me not to worry about it because the double dose is not toxic to your liver or otherwise harmful. They said the only reason 800mg is the max was because studies showed that more than 800mg did not prove to be more effective. There wasn't proven to be a direct relationship between an amount over 800mg and any other symptom improvement. So ibuprofen's benefits maxed out at 800mg. This demonstrates that toxicity is not the only consideration in dosage limitation. On top of that, even if it was the only consideration I don't think a judge is going to accept that there should be no limit just because GregS says so. You would need an expert to testify. And even on top of that, you are ignoring that the law itself requires that possession only be of an amount necessary to alleviate the condition. So the law presupposes that the amount is no an unlimited amount just because a patient decides that it isn't toxic.

 

GregS I have to pat you on the back for rushing to the defense of your buddy tpain. He has put in tireless hours and energy and he deserves credit for that, as you say. Unfortunately your idea of credit for that means I shouldn't challenge his arguments. I should leave them where they lie so that unsuspecting patients can read them on here and think that a section 8 hearing is a slam dunk. Then they may as well just rely on section 8 since it is so easy. Since all you have to do is present unrebuttable prima facie evidence. That is easy to establish with just the patient himself testifying because the prosecutor cannot rebut it according to him. So no need for a doctor or anyone else. The patient can just mosey on into court and tell his story and the judge will have no choice but to dismiss the case. That is super easy and I wonder why so many people are having trouble with it.

 

GregS it is wonderful to be taught that I should defer my opinions to those trained in the law. Makes one wonder why you don't administer the same admonishment to tpain after I proved him wrong by quoting directly from the exact case he selectively quoted from to try and support his opinion. Also makes me wonder why your affidavit scheme isn't similarly kept to yourself. I have asked you several times the reasoning behind your claim that an affidavit from a doctor can protect a patient and dispose of the need for the doctor to testify. All you did was throw up a long list of rules of evidence, most of which had no bearing on the topic, and say something on the order of "trust me it will work."  So I will point blank ask again. Can you provide us with your reasoning as to how that would work and support that reasoning with specific law or court rules or rules of evidence? Also I have asked you several times if you are a lawyer. Someone told me that you went to law school and either never graduated or didn't practice law, I don't remember which. Why haven't you answered that question? If we are to leave opinions to those trained in the law do we not have a right to know if you are trained in the law?

 

I would also point out, GregS, that my "opinions," as you put it, were not all my opinions. I supported several of my claims with direct quotes from caselaw. Maybe you can do the same for me regarding your affidavit scheme?