The Affirmative Defense and Dismissal for Medical Marijuana

Except as provided below, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana, 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 bonafide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana 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 marijuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marijuana 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)a] The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the use of marijuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

b] A person may assert the medical purpose for using marijuana 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).

c] If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marijuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marijuana:
(I) disciplinary action by a business or occupational or professional licensing board or bureau; or
(II) forfeiture of any interest in or right to property.

Exceptions

The medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.

This act shall not permit any person to do any of the following:
(1) Undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.

(2) Possess marijuana, or otherwise engage in the medical use of marijuana:
a] in a school bus;
b] on the grounds of any preschool or primary or secondary school; or
c] in any correctional facility.

(3) Smoke marijuana:
a] on any form of public transportation; or
b] in any public place.

(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

(5) Use marijuana if that person does not have a serious or debilitating medical condition.

Nothing in this act shall be construed to require:

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marijuana.

(2) An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.

Fraudulent representation
To a law enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this act.

This Act supersedes all previous acts
All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

SUMMARY

There has been much talk and confusion regarding the Affirmative Defense (“AD”) provided for in Section 8(a) of the Michigan Medical Marijuana Act (“the Act”). The following is a very general overview of the AD. Please note that nothing in this post should be read as establishing an attorney-client relationship with the Michigan Medical Marijuana Association, it’s directors, officers, employees or agents, this web-sites administrators, or the posts author. In other words, this general overview is not meant to, nor should it, replace consultation with an attorney.

Who may assert the Affirmative Defense?
The Act makes a distinction between a “Qualifying Patient” and a “Patient.” A “qualifying patient” is a person who is eligible to use, possess, acquire, cultivate, transport and deliver marijuana after having been diagnosed by a doctor as suffering from one or more of the debilitating conditions specifically stated in section 3(a)(1)-(3) the Act and otherwise meets the criteria of said Act. In plain English, a “qualifying patient” is a person who meets the requirements of the Act and has received their registry identification (“card”) from the Department of Community Health. As a “qualifying patient” is protected from arrest, prosecution or penalty (including forfeiture of the medicine) under the provisions of the act it is unlikely, though still possible, that a situation will arise where they will need to plead the AD.

Conversely, a “patient” is anyone who uses marijuana for medicinal purposes, but does not necessarily qualify under the provisions of the Act and is not eligible to receive their “card” from MDCH. It’s anticipated that the most common reason a person would be a “patient,” rather than a “qualifying patient,” is because their condition is not one of those specified in the Act.

The AD may be asserted by a patient or the patients “primary caregiver” for any marijuana charge(s) pending on or issued after December 4, 2008. A case is considered “pending” from the time the charge(s) is formally issued until there is a resolution of the charge(s) by a guilty/no contest plea, a finding of guilt after a trial, or the outright dismissal.

Requirements to Establish the Affirmative Defense
Section 8 of the Act states that the Affirmative Defense is to be asserted in a Motion to Dismiss. The burden of proving the AD is on the person asserting it, the patient or the patient’s primary caregiver. In order for the AD to be effective, the patient/primary caregiver must establish the elements as provided in the Act by a preponderance of the evidence. The elements are as follows:
A doctor (MD or Osteopath), after having reviewed both the patient’s medical history and current medical condition during the course of a bonafide doctor-patient relationship, has stated (orally or in writing) that the patient is likely to receive therapeutic or palliative benefit from the medicinal use of marijuana.

Collectively, the patient and/or primary caregiver do not possess a greater amount than is reasonably necessary to ensure the uninterrupted availability of the medicine used to treat or alleviate that patient’s serious or debilitating medical condition or the symptoms of same.
The marijuana was in fact for the purposes of treating or alleviating the patients serious or debilitating medical condition and/or symptoms of same.

According to section 8(3)b] the Act, if the above elements are met, the charges shall be dismissed.

What to expect
On first glance the above listed elements would seem fairly easy to meet, thereby requiring the charge(s) be dropped. However, litigation is never simple, there are no guarantees of outcome and it is usually quite expensive, both financially and emotionally. It would not be unusual for several months to elapse before a hearing can be scheduled for a Motion to Dismiss. During this time your attorney will be conducting witness interviews, researching law, organizing their evidence, crafting the arguments to be made and otherwise preparing the Motion to Dismiss.

At the hearing the evidence will be presented to the court and the arguments made. The Judge may make their decision immediately or issue a written opinion. If a Judge decides to issue a written opinion, it is likely to take anywhere from 2-4 weeks, if not longer. Hopefully the decision will go your way. Regardless of the ultimate decision, getting to that point will likely cost several thousand dollars, a fair amount of time and a large amount of stress.

It should be noted that many different hypothetical situations have been discussed on the board regarding the AD. While many are an interesting exercise in “what if,” in reality none of us know how the courts are going to approach and interpret the law. As with any new legislation, it will take several years and more than a few “test cases” before any determinations or recommendations can be made with confidence.