Lawyers for Cannabis
Michigan Regulation and Taxation of Marijuana Act
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A registered primary caregiver was charged with manufacturing 20 or more but fewer than 200 marijuana plants, possessing a firearm during the commission of a felony and possessing with intent to deliver 5 kilograms or more but less than 45 kilograms of marihuana. Those are some pretty serious charges. A §8 defense was raised by defendant but the trial court did not allow him to present his affirmative defense at trial. The trial court determined that defendant did not satisfy his burden of presenting prima facie evidence for each element of §8 of the Michigan Medical Marihuana Act (MMMA). The element at issue was the existence of a bona fide physician-patient relationship.
Section 8 states that a primary caregiver has the burden of establishing by prima facie evidence the elements of subsection (a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marihuana. The Supreme Court in People v. Hartwick reduced the requirements of (a)(1) into three elements:
1. The existence of a bona fide physician-patient relationship,
2. In which the physician completes a full assessment of the patient’s medical history and current medical condition, and
3. From which results the physician’s professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the medical condition.
Defendant and his registered qualifying patients testified about their interactions with a Dr. Kattoo. The Court found that only one patient was able provide evidence to support a bona fide physician-patient relationship. The Court noted that no actual medical records or testimony from certifying physicians was admitted into evidence. “Without the showing of records the trial court could not determine whether records were created and maintained in accordance with medically-accepted standards.”
A Section 8 defense to a crime involving marijuana is no easy task. Call the Michigan Cannabis Lawyers at 517-512-8364 to speak to a cannabis warrior.
In People v. Mansour, defendant’s home was searched by police and an indoor marijuana grow operation was discovered in her basement. The grow consisted of 126 plants and approximately 550 grams of marijuana buds on a drying rack. Mansour was charged with 1 count of delivery or manufacture of marijuana and 1 count of delivery or manufacture of 20 or more marijuana plants. Defendant filed a motion to dismiss the charges based on her status as a registered medical marijuana patient, which allows her to be entitled to immunity under §4 of the MMMA.
This provision states that, “a qualifying patient…shall not be subject to arrest, prosecution, or penalty….for the medical use of marijuana…provided that the qualifying patient possesses an amount of marijuana that does not exceed 2.5 ounces of usable marijuana.” MCL 333.26424(a)(emphasis added).
Under MCL 333.26423(n), “usable marijuana” includes the dried leaves and flowers of the marijuana plant, and any mixture or preparation thereof.” Defendant argued that the 550 grams of marijuana buds were “unusable” because they were not yet dry and therefore must be excluded when considering her claim of immunity under §4 of the MMMA.
Prosecution argued that the precedent of People v. Carruthers, 301 Mich App 590, 609; 837 NW2d 16 (2013), is controlling and that the court must look at the total amount of marijuana defendant was found in possession of, not just the amount of “usable” marijuana. In Carruthers, defendant was found to be possession of marijuana infused brownies which was not considered to be usable marijuana under the MMMA. The Court concluded that if a registered patient is in possession of any marijuana that is not considered usable marijuana then he or she possesses an amount that is in excess of the permitted amount of usable marijuana. Following this decision, the Legislature expanded the MMMA definition of usable marijuana, effective December 2016.
Defendant argued that People v. Manuel, 319 Mich App 291; 901 NW2d 118(2017), should be the controlling precedent of the Court which would limit the amount of marijuana defendant was found in possession of to only the usable marijuana. In Manual, the defendant was both a qualified patient and a primary caregiver which allowed him to be in possession of up to 15 ounces. The amount he was found to be in possession of exceeded 15 ounces, but defendant argued that the marijuana was in “various stages of drying” and therefore was unusable by definition. Id at 123. The Court held that due to the marijuana being unusable defendant was entitled to §4 immunity.
In this case the Court held to interpret §4 immunity as it did in Carruthers, utilizing a two prong test that asks, “whether a possessor of marijuana possesses an allowed quantity of usable marijuana” and further inquiries “whether that person possesses any quantity of marijuana that does not constitute usable marijuana under the term-of-art- definition of the MMMA.” Carruthers, 301 Mich App at 610. Based on this approach, a registered qualifying patient in possession of any amount of marijuana that does not qualify as usable marijuana is not entitled to immunity under §4 of the MMMA. Therefore, defendant is considered to be in possession of marijuana that is not usable so she is not entitled to §4 immunity.
Michigan’s laws on marijuana are constantly changing. Make sure you are not caught off guard and ensure your interests are represented by competent and experienced attorneys who actually know a thing or two about cannabis. Call the Michigan Cannabis Lawyers today at 517-512-8364.
The Michigan Court of Appeals released a published opinion that defies logic and removes the availability of an immunity defense under section 4 of the MMMA (MCL 333.n26424) when caregivers possess unusable marihuana. What is unusable marihuana you ask? That would be any marijuana that doesn’t meet the definition of either marihuana plant or usable marihuana. A marihuana plant is defined in MCL 333. 26423(g) and MCL 333.2642(j) as any cannabis plant that is living and either has viable roots or is in a growing medium. Usable marijuana is defined in MCL 333.26424(n) as the “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant”. Based on these two definitions, unusable marihuana is essentially flower and leaf that is not dry.
This means that if patients or caregivers cultivate marihuana they will not be immune from arrest or prosecution under section 4 of the MMMA. If law enforcements finds you in possession of undried and therefore unusable marihuana you can be arrested and prosecuted and will have to rely on the affirmative defense contained in section 8 of the MMMA (MCL 333.26428) in order to avoid a conviction. A section 8 affirmative defense places the burden on the defendant to prove a valid defense. If charged with a crime it will be your burden to prove to the court that you and your patients had bona-fide patient physician relationships, that the marihuana possessed was a reasonable amount to prevent an uninterrupted supply, and that the marihuana was for medical use. Since proving a defense in court can be difficult, it is important to hire an attorney who has experience presenting defenses under section 8 of the MMMA. Call the Michigan Cannabis Lawyers at 517-512-8364 to talk about how this case will affect you and your grow.
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