Hartwick And Tuttle Amicus Briefs Filed On Behalf Of Mmma And Cpu

[GregS]

I believe they could rule that the section 4 limits are per se reasonable, without precluding the patient or caregiver from providing evidence that any amounts allegedly in excess are also reasonable because of individual circumstances.

That is the better option. The distinction will be found at the nexus of portability.

[GregS]

Because the electorate does not include any per se limit in sec. 8, I don't know that the Court can insert it by judicial fiat within the Constitution. That would be no different from the COA moves to put their recent restrictive demands onto caregivers. It is not in the Act.

[YesMichigan]

Because the electorate does not include any per se limit in sec. 8, I don't know that the Court can insert it by judicial fiat within the Constitution. That would be no different from the COA moves to put their recent restrictive demands onto caregivers. It is not in the Act.

 

333.26428 Defenses.

8

(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

 

http://www.legislature.mi.gov/%28S%28jpnvsjummlhvmmjn40mv5b45%29%29/mileg.aspx?page=getobject&objectname=mcl-333-26428

 

Did I pull out the part to which you refer?

[GregS]

Yep. More to the point, YM. in King/Kolanek (http://law.justia.com/cases/michigan/supreme-court/2012/142695.html) the Court held that sec. 4 and 8 are entirely separate animals. Go the the appendix at the end for a short statement of findings.

Edited January 22, 2015 by GregS

[YesMichigan]

Yep. More to the point, YM. in King/Kolanek (http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/11-12-Term-Opinions/142850-Opinion.pdf) the Court held that sec. 4 and 8 are entirely separate animals. Go the the appendix at the end for a short statement of findings.

 

Link isn't working. http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/11-12-Term-Opinions/142850-Opinion.pdf

 

Thank you for the direction to get more info on the 4 and 8. I am somewhat familiar but I have a lot of learning to do (just like the people in Lansing it seems).

 

So in a "Had too much" all hope isn't lost if a determination under Section 8 for "reasonably necessary" is made? That's how I was reading your comment regarding the electorate and if they can create a quantity where one wasn't specified by the MMMA as it is a judgement call pertaining to Section 8 coverage.

 

Section 8 looks to me like the voter intent portion of "Look, don't mess with people if they can be helped by or are trying to help others obtain medical marijuana".

[GregS]

I can't seem to insert a link that works. Try searching king/kolanek. Sorry.

[YesMichigan]

I can't seem to insert a link that works. Try searching king/kolanek. Sorry.

 

The one I posted is working. The ending parenthesis is getting concatenated with your link.

[GregS]

Link isn't working. http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/11-12-Term-Opinions/142850-Opinion.pdf

 

Thank you for the direction to get more info on the 4 and 8. I am somewhat familiar but I have a lot of learning to do (just like the people in Lansing it seems).

 

So in a "Had too much" all hope isn't lost if a determination under Section 8 for "reasonably necessary" is made? That's how I was reading your comment regarding the electorate and if they can create a quantity where one wasn't specified by the MMMA as it is a judgement call pertaining to Section 8 coverage.

 

Section 8 looks to me like the voter intent portion of "Look, don't mess with people if they can be helped by or are trying to help others obtain medical marijuana".

Amounts in possession in sec. 8 are to be answered by the finder of fact in the courts. In this regard the Court has also ruled that those findings are in the domain of a jury,  rather than a judge. Prosecutors are arguing otherwise. They don't want us taking cases to juries.

[YesMichigan]

Amounts in possession in sec. 8 are to be answered by the finder of fact in the courts. In this regard the Court has also ruled that those findings are in the domain of a jury,  rather than a judge. Prosecutors are arguing otherwise. They don't want us taking cases to juries.

 

Solid analysis and some good reading ahead for me. Thank you.

[t-pain]

i think the opinions could go either way.

 

this opinion is going to repeat/affirm what the coa said. that you have to prove any small amount of marijuana for sec8a2. this means prosecutor and judges will rule even having 10mg of marijuana can be too much. just depends how the msc words it.

 

the msc opinion will be another 50/50 good/bad crap, at least as far as i can guess.

e.x. "you cant prosecute for xxx and yyy but you can for zzz and aaa".

 

theres an interesting thing i think we are skipping over, that the presumption must rebut conduct related to marijuana isnt for any medical use. what it means is that even with a fake medical card, that would still be for medical use. so the cops will have to try to buy weed without a card or rec.

 

 

i really dont see much besides of course prima facie winning over preponderance. and all that crap in hartwick and tuttle getting reversed. hartwick is a sec4. tuttle will get his sec8 proper.

it will help a few people who are running into the same prosecutor playbook around coa hartwick/tuttle, but i fear not much else.

 

 

 

i wonder if they will issue any opinion on the amicus briefs. thats where i want to see some attention in the opinions.

 

 

coa gets slapped hard on this.

oakland county prosecutors all get slapped.

oakland co judges get slapped for following the oakland county prosecutors and completely missing the language in the act.

 

but without some clear message, or with some unclear 'this court will not search for every route that a mmma patient can be prosecuted' crap, i fear oakland co will continue its crusade.

 

at least until some patients decide to sue big time. hartwick should sue for confidentiality breach and wrongful arrest and everything.

 

all i know is i got my hopes up in

[GregS]

This ruling might bring us to the critical mass necessary to succeed in bringing malicious prosecution action.

 

http://www.criminaldefenselawyer.com/resources/criminal-defense/criminal-offense/suing-for-damages-malicious-prosecution

 

That so many of the issues have already been ruled on, prosecutors are most certainly abusing privilege by bringing them again.

Edited January 22, 2015 by GregS

[+Malamute]

I think the "bubble burst" of section 4 will be addressed as well.

 

 That could be very important. VERY.

[GregS]

I think the "bubble burst" of section 4 will be addressed as well.

 

 That could be very important. VERY.

How do you mean to say?

[+Malamute]

Well the issue of whether if one violation makes everything illegal.

 

Examples:

 

 As a patient having 14 plants, you would only be charged with the 2 extra plants,... or if you have 3 oz, you wont be charged with your 12 plants as well.  Or such as in this case,  you sell to someone under sec 8. and it ends up illegal, is your 48 plants at home with 4 patient cards illegal or still legal.  Only the transfer itself was illegal.  Quick touch on the topic.

 

 Also, for future issues,... you get in trouble for transport, is your plants at home still legal.

[semicaregiver]

What is the charge for having extra plants?  Is it a felony and if it is, are you not then out of the cg business?

Edited January 22, 2015 by semicaregiver

[+Malamute]

Well, if convicted you would then lose your CG rights.  So like you can then drop your plants etc.  There would be a lot of safe zone stuff though.  May resolve issues of full on complete busts for the most minor infraction.

[GregS]

What does an extra plant look like under the AD? For the sake of this conversation I am a caregiver and have a pound for each patient. Each patient uses an oz a month. Is that an amount that is no more than necessary to ensure a steady, uninterrupted supply for the next 16 months?

Edited January 22, 2015 by GregS

[bobandtorey]

What does an extra plant look like under the AD? Not good inn Oakland County

[t-pain]

What does an extra plant look like under the AD? For the sake of this conversation I am a caregiver and have a pound for each patient. Each patient uses an oz a month. Is that an amount that is no more than necessary to ensure a steady, uninterrupted supply for the next 16 months?

 

who desides what is "reasonably necessary"?

 

i think some testimony we've seen in various cases is good. like the people who say they were growing 72 plants because half of them will be male and then culled. because that automatically just takes it down to 36 plants. then a cg can say how good or bad he is at growing plants. how many ounces he gets per plant. some of these new cbd plants dont really make the flowers and you can only get an oz or two off each one.

 

the police have been trying to say you can make 4 harvests a year. you may need to explain why you will or wont be doing that much growing. even though it is possible to run that or more, you may have to explain why you are not doing it. also maybe explain how many plants get budrot, mites, etc.

 

maybe we should come up with a kind of checklist for plant yields, pests, growing problems (hermies due to lights, dead plants due to power outs etc). some kind of document that addresses all facets of patient/caregiver cultivation for evidence showing?

Edited January 23, 2015 by t-pain

[GregS]

who desides what is "reasonably necessary"?

That would be the finder of fact, which the SC has already determined is a jury. Prosecution briefs argue desperately that it is a judge's prerogative.

Edited January 23, 2015 by GregS

[GregS]

who desides what is "reasonably necessary"?

 

i think some testimony we've seen in various cases is good. like the people who say they were growing 72 plants because half of them will be male and then culled. because that automatically just takes it down to 36 plants. then a cg can say how good or bad he is at growing plants. how many ounces he gets per plant. some of these new cbd plants dont really make the flowers and you can only get an oz or two off each one.

 

the police have been trying to say you can make 4 harvests a year. you may need to explain why you will or wont be doing that much growing. even though it is possible to run that or more, you may have to explain why you are not doing it. also maybe explain how many plants get budrot, mites, etc.

 

maybe we should come up with a kind of checklist for plant yields, pests, growing problems (hermies due to lights, dead plants due to power outs etc). some kind of document that addresses all facets of patient/caregiver cultivation for evidence showing?

Facts can vary widely from one case to the next, and each prosecution will turn on them. My methods and results, as good or bad they may be, do not necessarily reflect yours. The core of sec. 8 power is found in its refusal to specify restrictive measures, leaving us the most liberal options found in the act. It is not a bad idea to do it on our own, but to require it would be a mistake.

Edited January 23, 2015 by GregS

[cristinew]

Well the issue of whether if one violation makes everything illegal.  THAT IS WHAT THE JUDGE SAID HERE  TRANSPORT LAW BROKE  ALL PROTECTIONS GONE , ....

[t-pain]

Well the issue of whether if one violation makes everything illegal.  THAT IS WHAT THE JUDGE SAID HERE  TRANSPORT LAW BROKE  ALL PROTECTIONS GONE , ....

i dont remember hartwick or tuttle (or mazur) being transport cases.

 

also, section 10 of the act should take care of section 4 being applicable multiple times.

 

Sec. 10. Any section of this act being held invalid as to any person or circumstances shall not affect the application of any other section of this act that can be given full effect without the invalid section or application.

 

but like thats just my non-legal non-medical opinion, dude.

[+Malamute]

Well, Sec. 8 isn't necessarily the most liberal when it comes to amounts. Those amounts could be 5 grams or 5 lbs depending on the courts interpretation and what evidence can be presented to support that amount.  Both good and bad.  Prosecutors will seek "reasonable" as being just under the amount you had, and defense attorneys will argue any amount is reasonable.

[t-pain]

yes malamute, but no where in section 8 does it say a prosecutor may rebut the evidence

in fact, section 8 is presumed valid.

 

"and this defense shall be presumed valid where the evidence shows that:"

Edited January 23, 2015 by t-pain