Hartwick And Tuttle Ruling Published

[GregS]

 Of course Sec. 4 requires a bona fide relationship.  LARA determines it before issuing a card.

 

 

 

 The legislature actually liberalized the definition of bona fide relationship from what LARA had approved.  LARA required a lot of absurd requirements that were nullified with the legislatures definition. 

 

 Also,... did you actually testify on bona fide relationship back then in the judiciary committee?  Or was it just in your head?  I do remember you testifying once I think, I just do not remember the bona fide argument you are suggesting?  It has been awhile. :-)

 

 

 

 I only know of one physician who thoroughly covers their bases for Sec. 8 defenses and testifies regularly in court for patients under his care.  He has routinely created the extra documents and all facets needed for Sec. 8 defenses dealing with the physician for a long time; well before this current decision because he understood the need to do so.

 

As I recall, you have given him endless crapp for it and I guess he was proven correct in the long run.  Go figure.

 

Greg wrong again about the law.

The state certification form does not include the statement that a bona fide exam has occurred. You will find nothing that requires one in sec. 4. It is arguably the worst sticking point in this decision. It is because it is omitted in sec. 4 that cards are inadequate to prove sec. 8.

 

You are talking about the guy who said that supporting documents such as these were a bad idea and told us not to use them. If he is using something like them he got the idea right here. He agreed with the COA that caregivers must know their patient's conditions, doctor's names, and dosag all of which only make things much more difficult.  He argued that there is no such thing as an unregistered caregiver and that all caregivers must be registered. He was not looking out for us.It was because he went along with all of that in contravention to patient and caregiver interests that it was necessary to treat him harshly. I do not regret that. This decision vindicates me in all of that .

 

I'll be talking with Irwin on Friday about making the change to the certification form. Early conversation indicates that it will have to go through some administrative law agency in the government in addition to LARA.

 

If you think I am wrong about the law, I'd enjoy hearing how.

Edited July 29, 2015 by GregS

[+Malamute]

The state certification form does not include the statement that a bona fide exam has occurred. You will find nothing that requires one in sec. 4. It is arguably the worst sticking point in this decision. It is because it is omitted in sec. 4 that cards are inadequate to prove sec. 8.

 

 

 

Sec. 4 (f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

 

 

In Section 4, the burden is on the Physician and the Department.

 

In Section 8, the burden is on the patient and/or caregiver.

 

 The decision states one must prove the relationship (paraphrase) " at the time of the accused crime".

 

 

 He agreed with the COA that caregivers must know their patient's conditions, doctor's names, and dosag all of which only make things much more difficult...He was not looking out for us.It was because he went along with all of that in contravention to patient and caregiver interests that it was necessary to treat him harshly. I do not regret that. This decision vindicates me in all of that .

 

 

 

 When the Michigan Court of Appeals rules,... it is the LAW silly billy.  He HAS to follow it or put all his patients and himself at risk. *mind boggle*  And by doing so, he is looking out for "us".

 

 This decision does not vindicate you at all on your wild theories of Sec. 8 over the past 6+ years. Not even kind of.  It actually vindicates him for following the COA ruling, and once again shows how wrong you have progressively been on Sec 8.

[GregS]

I stand corrected. It is not, however, stated on a certification form and should be. Would that make a card authoritative in an AD?

 

The Court is wrong and handed down bad law.

Edited July 29, 2015 by GregS

[t-pain]

That, gregs, is something we all agree on. But it's the law now dog.

[+Malamute]

Amazingly, people haven't figured out it doesn't matter what "we" think the laws says. It only matters what "they" say the law says.

 

When I tell people to operate in certain ways under this law, I am telling them to do it how either "they" have said it is, or how "they" will most likely say it is. This way people are SAFE.

 

Many try to tell people what they personally believe it says and that is a huge mistake of ego, arrogance and simply not understanding the law and how the courts are in Michigan.

[GregS]

A physician may not write a recommendation without a bona fide physician-patient relationship.

Which makes this sooo totally fukd.

Edited July 29, 2015 by GregS

[+Malamute]

We all are unhappy with this decision.

[t-pain]

why the flower did the supreme court say in k/k that sec8 was three prong and then come back here in tut/wick and say sec8 is six prong?

[t-pain]

heres k/k ruling

 

7. A defendant is entitled tothe dismissal of criminal charges under § 8 if, at the

evidentiary hearing, the defendant establishes all the elements of the § 8 affirmative

defense, which are (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,” (2) the defendant did not possess an amount of marijuana that

was more than “reasonably necessary for this purpose,” and (3) the defendant’s use was

“to treat or alleviate the patient’s serious or debilitating medical condition or

symptoms . . . .” 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.

 

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.

 

heres tut/wick ruling, page 6:

 

Regarding § 8, we hold:

(1) a defendant must present prima facie evidence of each element of § 8(a) in order to be entitled to present a § 8 affirmative defense to a fact-finder;

(2) if the defendant meets this burden, then the defendant must prove each element of § 8(a) by a preponderance of the evidence

so they reversed k/k

 

heres the law

(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).

so you're going to have a pre-trial evidentiary hearing and then the charges "shall be dismissed". the "fact-finder" is the jury, yes?

 

so how are you going to have a pre-trial hearing and then get a jury to dismiss the charges without going to trial to dismiss it? i mean, it does not say "and then you go to trial where the prosecutor may say a bunch of crap, then the jury can decide to dismiss or not"...

 

someone tell me if a jury can "dismiss" a charge anyway? the only people who can dismiss charges are judges and prosecutors? juries can only decide if a defendant is guilty or not of the charges.

 

http://www3.ce9.uscourts.gov/jury-instructions/node/329

[chi_guy]

it's funny how different states interpret the exact same language totally different. Correct me if I'm incorrect but didn't the Supreme court of Arizona rule patient to patient transfers legal citing the exact same language from section 4k of the MMMA. Also why is 4e never used as a defense. Here's a tip for you lawyers and the next guys that get busted for this non connected transfer b.s. . Assert 4e

Here's why: it's standard statutory interpretation that it is considered intentional when the legislature includes language in one section and omits it in another. One thing about 4e is that the protection is for "A" caregiver assisting "A" patient. You know one thing that isn't mentioned in 4e. Anything about that caregiver being connected to that patient.This language was clearly omitted from this statement.Why? They could have easily added the word "connected" here.

[+Malamute]

I have to disagree with the 4(e) argument(although personally I do not want to).

 

 This has been discussed in court(McQueen maybe?) and shot down.

 

As far as Arizona and several other states go, they have looked at much of the same language we have(vastly similar if not exact) and ruled differently than Michigan. Michigans courts are filled with Republican Judges and it shows.

 

As you said, (pt/pt) transfers are somewhat legal in Arizona. Not "fully", but mostly.

 

They interpreted "mixture and preparation thereof" properly as did a couple other states.

 

So yea.  Michigan is run lock, stock and barrel by republicans,... not only republicans, but really bad republicans.  Engler stuffed the courts and nothing has gotten better since. Almost all COA judges in Michigan run completely unopposed, so why would it change.  The Michigan Supreme court is basically 5-2 republican nowadays.

 

So yea,... Michigan courts suck.

 

I mean, Arizona is mostly run by Republicans, but they aren't as nasty as Michigan republicans. 

 

 It surprises me as well.

[+Malamute]

I have to disagree with the 4(e) argument(although personally I do not want to).

 

 This has been discussed in court(McQueen maybe?) and shot down.

 

As far as Arizona and several other states go, they have looked at much of the same language we have(vastly similar if not exact) and ruled differently than Michigan. Michigans courts are filled with Republican Judges and it shows.

 

As you said, (pt/pt) transfers are somewhat legal in Arizona. Not "fully", but mostly.

 

They interpreted "mixture and preparation thereof" properly as did a couple other states.

 

So yea.  Michigan is run lock, stock and barrel by republicans,... not only republicans, but really bad republicans.  Engler stuffed the courts and nothing has gotten better since. Almost all COA judges in Michigan run completely unopposed, so why would it change.  The Michigan Supreme court is basically 5-2 republican nowadays.

 

So yea,... Michigan courts suck.

 

I mean, Arizona is mostly run by Republicans, but they aren't as nasty as Michigan republicans. 

 

 It surprises me as well.

 

 

 My bad on Arizona law.  I forgot like Rhode Island added to their law,... they have this phrase:

 

3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

 

 Updated COA ruling here:

 

http://www.phoenixnewtimes.com/news/patients-cant-sell-medical-pot-appeals-court-rules-7363907

[GregS]

I listened to green trees last night. What I took away is the incredulousness the attorneys on the show vocalized toward the Court. I think the word they were looking for at the end of the regular broadcast, before they ran out of time and suggested anyone interested to call in to keep listening, is bias. My jaw is still hanging open.

 

The question for me remains: What evidence is enough to establish the elements of the AD? I do not understand how the state certification form, and a card that is directly derived from it, that lays out and attests to every term used to define a bona fide relationship,, to wit, "reviewed the patient's relevant medical records and completed a full assessment of the patient's medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient," but does not use the term "bona fide" does not establish prima facie proof of §8(a)(1), which requires proof of a bona fide exam. That could not be more absurd. Footnote 77 turns that around and says it "might suffice," but only as allowed hearsay, which is up to each trial judge to arbitrarily allow or deny. Zahra and any other Justice who wrote the opinion have given up on decent and intellectually honest legal construction in this regard.

Edited July 30, 2015 by GregS

[GregS]

it's funny how different states interpret the exact same language totally different. Correct me if I'm incorrect but didn't the Supreme court of Arizona rule patient to patient transfers legal citing the exact same language from section 4k of the MMMA. Also why is 4e never used as a defense. Here's a tip for you lawyers and the next guys that get busted for this non connected transfer b.s. . Assert 4e

Here's why: it's standard statutory interpretation that it is considered intentional when the legislature includes language in one section and omits it in another. One thing about 4e is that the protection is for "A" caregiver assisting "A" patient. You know one thing that isn't mentioned in 4e. Anything about that caregiver being connected to that patient.This language was clearly omitted from this statement.Why? They could have easily added the word "connected" here.

Different rulings by different states regarding identical facts are not altogether uncommon. I remember being surprised to find that two neighboring states, one is New York and possibly Pennsylvania, ruled differently in an instance of tort law that pertains to liability in the event of personal injury on a public transit system where a bystander helps out. In one of those states the court held that the helpful bystander was liable for injuries subsequent to their assistance, and in the other is not. Many years ago a law professor at CMU told me that the law always prevails land that personal bias does not play. I have seen nothing but what proves that statement wrong. It is everywhere accepted that rulings by a court in one state can inform, but not compel, a different state court to make the same determination. I agree with you that we are somewhere down in a rabbit hole and the characters we are dealing with would be hysterically funny, if not for the seriousness of the outcomes.

[Restorium2]

Isn't it about time that cannabis get's her turn in the court of last resort?

 

The whole farce from it not being a medicine, the schedule, to the unconstitutional discrimination against users. The whole can o worms. If they can give ALL people the right to marriage then they can give us the right to truth about cannabis and the right to our plants too. 

 

When we have arbitrary political figures threatening to 'take away' rights that WE THE PEOPLE have won at the polls, and local judges disregarding the rules of law to play politics, it IS time for the court of last resort to give US some relief from the bullies that use our plants against us. The time has come for this to be judged fairly from sea to shining sea! 

[Joel]

Am I correct in believing the SOM sold us cards that are basically useless?

 

If so perhaps a class action suit is in order to recoup any money spent on those cards, and damage suits by people who had cards that did them no good when they were arrested.

 

Looks like I am screwed when I go back to court on my case.

[t-pain]

We will also see shortly how the prosecutors react to the ruling, which will give us an indicator of where they will choose to continue to fight.

tut/wick gave them exactly what they wanted. bona-fied is now up for grabs in every case. the prosecutors just cant call it a prescription, but everything else is fair game.

 

who gets to decide if your dr/pt relationship is bona-fied? judge/prosecutor

who gets to decide if your immunity is rebutted? judge/prosecutor

who gets to decide if you can present your defense to a jury? judge/prosecutor

who gets to decide if your conduct was in a nexus? judge/prosecutor

who gets to decide if a cg2pt transfer taints all conduct? judge / prosecutor

yeah not "per se", but if they find one sticky note... its tainted.

 

(11) the trial court must ultimately weigh the evidence to determine

if the defendant has met the requisite burden of proof as to all elements of

§ 4 immunity.

 

(3) a valid registry identification card does not establish any

presumption under § 8. 10

 

10

A valid registry identification card is prima facie evidence that a physician has determined the registered qualifying patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition. In addition, a valid registry identification card issued after April 1, 2013, the effective date of 2012 PA 512, is also prima facie evidence that a physician has conducted a full, in-person assessment of the registered qualifying patient. We reach this conclusion because § 6© requires the state to verify all the information contained in an application for a registry identification card; therefore, a valid registry identification card is prima facie evidence of anything contained in the application. This prima facie evidence satisfies two elements of § 8(a)(1), but does not satisfy the last element requiring prima facie evidence of a bona fide physician-patient relationship.

 

 

that was the ultimate problem that the coa made in tut/wick, that each patient now had to PROVE to a judge that the dr/pt relationship was valid. not just valid, but bona-fied. not just bona-fied, but bonafied by a preponderance of evidence. if a defendant did not "present[ing] evidence from which a reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense, . . . then the circuit court must deny the motion to dismiss the charges,”.

 

is there even such a thing as a reasonable jury? is it reasonable when its an all-white jury in detroit courts? is it reasonable when the ages of the jury are twice that of the defendant?

 

who gets to decide if evidence sways a reasonable jury? judge/prosecutor.

 

oh, and using sec4 and sec8 means you are pleading guilty to the charges. how does this affect your other defenses if you are saying in court "i did it, but i have a card" when they say ok, your card does not count, now what "i plead not guilty" but you just "admitted guilt"...

[GregS]

I think you are on the right track. Last night was a night of first impressions, and though you did hear the attorneys voice some similar sentiments about the court's motivation, they could not have been more different on their assessments of the potential outcome. We will also see shortly how the prosecutors react to the ruling, which will give us an indicator of where they will choose to continue to fight.

 

tut/wick gave them exactly what they wanted. bona-fied is now up for grabs in every case. the prosecutors just cant call it a prescription, but everything else is fair game.

 

who gets to decide if your dr/pt relationship is bona-fied? judge/prosecutor

who gets to decide if your immunity is rebutted? judge/prosecutor

who gets to decide if you can present your defense to a jury? judge/prosecutor

who gets to decide if your conduct was in a nexus? judge/prosecutor

tut/wick. I like that.

[Restorium2]

Bona fide, as it relates to doctor and patients, is nothing new and it already had it's definition. This is just more evidence of judges stepping past their assigned tasks. 

Why does cannabis deserve such extra scrutiny over any other drug or doctor service in terms of 'bona fied'?

When a judge suggests that a relationship can be magically changed by a simple doctor's note with the words 'bona fied' in it they have went to the point of other judges knowing they are false.  They have lifted the words to a new level of them being an action rather than a description. This gibberish needs to be overturned and set right.

[t-pain]

ok enough of all of that whining. lets try some real questions.

 

how will you present a preponderance of evidence that you have 71 plants and 2.5oz of weed?

all you have is your own testimony. probably no pictures, no computerized weighing system, will a "reasonable jury" conclude that your testimony was a preponderance or unreliable?

[Restorium2]

ok enough of all of that whining. lets try some real questions.

 

how will you present a preponderance of evidence that you have 71 plants and 2.5oz of weed?

all you have is your own testimony. probably no pictures, no computerized weighing system, will a "reasonable jury" conclude that your testimony was a preponderance or unreliable?

First of all, do you have a valid card? If not, forget about it ...

[GregS]

I think you are on the right track. Last night was a night of first impressions, and though you did hear the attorneys voice some similar sentiments about the court's motivation, they could not have been more different on their assessments of the potential outcome. We will also see shortly how the prosecutors react to the ruling, which will give us an indicator of where they will choose to continue to fight.

One outcome I can think of is that patients and caregivers who are narrowly out of compliance, for instance a caregiver who is unaware that a patient's card has expired because he/she has not received timely notice from the patient or state and is subsequently over the allowed plant count, will have nowhere to go if found out. Something else that is apparent is Hartwick's permission for lying coksucker Detective Ferguson to perform the warrantless search. He should not have allowed that. How many times have we heard that it is one of the LAST things to permit?

 

I DON"T want whatever the Court is smoking.

Edited July 30, 2015 by GregS

[GregS]

First of all, do you have a valid card? If not, forget about it ...

The Court just ruled that a valid card is useless.

[t-pain]

btw i love how they put the word "nexus" into our act. surplusage much? that word does not exist in the mmma. the word "related" is there , as in "conduct related to marihuana", but not "conduct in a nexus with marihuana".

 

thats a thing that i dont think got mentioned before. this opinion, every time it rules one way, it also gives a roundabout way to get around the ruling.

 

1. (1) a defendant must present prima facie evidence of each element of

§ 8(a) in order to be entitled to present a § 8 affirmative defense to a fact-finder; BUT (2) if the defendant meets this burden, then the defendant must prove each element of § 8(a) by a preponderance of the evidence; and

 

2. "A valid registry identification card is a prerequisite to establish immunity under § 4. But possession of a valid registry identification card, alone, does not establish any presumption for the purpose of § 4."

 

2. This prima facie evidence [card] satisfies two elements of § 8(a)(1), but does not satisfy the last element requiring prima facie evidence of a bona fide physician-patient relationship.

 

what does this part mean?

 

If the presumption of medical use has been rebutted, however, the defendant may still prove through other evidence that, with regard to the underlying conduct that resulted in the charged offense and for which the defendant claims immunity, the defendant was engaged in the medical use of marijuana, as defined in § 3(f).

3f says "a patient" , not "the patient"

 

from mcqueen

It is entitlement to that immunity—not the definition of “medical use”—that demonstrates that the person’s medical use of marijuana is inaccordance with the MMMA.

Because § 4(d) creates a presumption of medical use and then states how that

presumption may be rebutted, we conclude that a rebutted presumption of medical use

renders immunity under § 4 of the MMMA inapplicable.

tut/wick overturned mcqueen?

[Restorium2]

It would be coolest thing I've seen in my lifetime for this decision to be remanded back to these clowns with instructions from The Supreme Court. 

It fits too good for it not to happen ....

There are so many reasons they would/should take up the case of medical cannabis in the USA. We are truely trampled Americans. Our rights have been trampled to the point of ridiculously to the tenth power. 

When you strip away all of the gibberish it is plain to see we patients are held against our rights for our money. 

Edited July 30, 2015 by Restorium2