Jump to content
ALD

If my spouse is my caregiver can I be in room?

Recommended Posts

I currently have a caregiver, but my husband would really like to take over as my caregiver and set up a grow area in our basement. I know everything has to be locked away, but if I am my husbands only patient (so he has less than 12 plants) can I be in the room to help with harvest?

Share this post


Link to post
Share on other sites

resto is simplifying the issue too much.

its kind of a complicated issue.

lets go through it real quick here.

You (patient)
your husband (caregiver)

only one of you is allowed to possess 12 plants. in this case, only one of you would be allowed to be in the grow room.

now here is another situation, which may work for you.

you (patient, but keeps possession of plants on the LARA form)
husband (caregiver, not allowed to possess plants)

then only you would be allowed in the grow room.

different way to do this

you (patient, keep possession of plants)
husband (caregiver to you, patient himself, keep possession of plants)

now both of you would be able to be in the grow room, since you are both allowed to possess 12 plants.


if your husband does not have a qualifying condition than the above situation would of course not work for you and your husband.

there is one more situation that might work better for you.

you (patient, cant keep plants)
husband (caregiver, can keep plants)

the husband waters, cultivates, grows the plants.
then he cuts the plants down when the plants are ready to harvest.

as soon as the plant is no longer living, it is an amount of marihuana. it is no longer a plant if it is not in growth material or living.

then you are free to possess it and help trim etc.



the reason this is important is there were 3 cases in the court of appeals and supreme court of michigan.

people v bob said husband and wife could not grow together, because the total of the 21 plants was more than the 12 plants each could possess.

people v bylsma said 3 caregivers could not grow together because the total of the 88 plants was more than the total 72 plants that is a maximum number of plants a caregiver could possess if they had all 5 patients plus themselves.

people v mazur said a wife could not help her husband cultivate if she was not a patient. she merely wrote down some numbers on a post-it note that was found on a plant. this case went to the michigan supreme court. where it was found that any device or item used for marijuana cultivation was paraphernalia and thus legal under section 4 of the MMMA.

so , its complicated.

but in general, if you want to be in the grow room of 12 plants, your card better say "allowed to possess plants" for you to be in there.

there maybe another issue that a grow room is only allowed to be either a patient OR a caregiver, but not both. but this issue has not been fully found in the courts yet.

in reality, as long as you dont talk to the police without a lawyer at all, dont tell no one about you being in a grow room , and your grow room door automatically closes and locks and only one person has the key (or combination lock) then really you should be fine.

otherwise to be 100% safe, wait for plants to be cut and dead. then you can trim and dry away!

Share this post


Link to post
Share on other sites

Thank you for the responses. Now the fun begins... starting from scratch. 

Does anyone know where I could get some high CBD clones?

Share this post


Link to post
Share on other sites

Bottom line here:  Who in the heck is going to know if you go into the room, touch the plants (oh no!!), or whatever else you do in your house?

I believe that the law says a patient can be in the caregivers grow room and... CAN ACTUALLY TOUCH THE PLANTS!

How absurd. You can smoke the stuff, eat the stuff, fill your bathtub up with it and roll around in it, but you can't be in the presence of a live, growing plant? WTF? Absurd...

Share this post


Link to post
Share on other sites

The heart of the problem is that caregivers are cleared to possess more than 12 and patients are not. Work outwards from there and you see where the prosecutors hang their hats.

I like to keep things as simple as possible so I reduced it to it's lowest common denominator. 

Share this post


Link to post
Share on other sites

footnote 45 of people v kolanek also mentions the patient OR caregiver bit.

 

45 Because we have concluded that a defendant need not establish the requirements of § 4
in order to satisfy the elements of the § 8 affirmative defense, we need not address the
Court of Appeals’ holding that Kolanek did not satisfy the “enclosed, locked facility”
requirement of § 4. However, to provide some guidance, we note that courts considering
whether a defendant’s plants were kept in an “enclosed, locked facility” should focus on
whether the security device functions to “permit access only by a registered primary
caregiver or registered qualifying patient.” MCL 333.26423(c) (emphasis added).

Share this post


Link to post
Share on other sites
2 hours ago, t-pain said:

footnote 45 of people v kolanek also mentions the patient OR caregiver bit.

 

45 Because we have concluded that a defendant need not establish the requirements of § 4
in order to satisfy the elements of the § 8 affirmative defense, we need not address the
Court of Appeals’ holding that Kolanek did not satisfy the “enclosed, locked facility”
requirement of § 4. However, to provide some guidance, we note that courts considering
whether a defendant’s plants were kept in an “enclosed, locked facility” should focus on
whether the security device functions to “permit access only by a registered primary
caregiver or registered qualifying patient.” MCL 333.26423(c) (emphasis added).

Note the use of the word "a" vs. "the" in describing who may be in a grow room.

Share this post


Link to post
Share on other sites

A caregiver gets a background check and a patient doesn't. Therefore a patient gets to access only a specific 12 and a caregiver can access up to 72 because of the background check. All the rest is total BS by who ever wants to sling the BS. 

Share this post


Link to post
Share on other sites
On 2/6/2018 at 7:37 AM, Restorium2 said:

Yes you can. It's just when a caregiver has more than one patient that access becomes a problem for a patient. 

As much as I hate it, I have to disagree with this based on the current state of the law. Assume for the sake of argument that we are discussing the most straightforward arrangement - the husband and wife patient-caregiver arrangement. One spouse's patient card will read "Authorized to Possess Plants: NO" while the other spouse's caregiver card will read "Authorized to Possess Plants: YES."

The unfortunate problem becomes, if there is a police interaction while the patient is alone in the caregiver's grow room, is that the patient will have a card that explicitly says "Authorized to Possess Plants: NO" while they are possessing plants. I personally think that situation is to be avoided.

Share this post


Link to post
Share on other sites

True. Although I have to say it makes no sense that a patient be unauthorized to be near a plant that they are authorized to have everything that comes from it. The only legal purpose the plant has is to supply the patient who created the authorization in the first place.  

Share this post


Link to post
Share on other sites

The premise that when someone is a room they are considered to be in actual 'possession' of everything in the room is a stretch that only a bad prosecutor would make. 

If the card said access and no access that would dictate the actual access. Being in a room with, or having access, doesn't mean actual possession.

If you put on your common sense prosecutor hat then it all comes down to the criminal background check and having access to actual numbers of plants a person is cleared for.

Every qualified patient has the right to access 12 plants regardless of their criminal background. That's the law. Not more than 12 though. That requires passing the proper background check.

 

 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now



×