Michigan Medical Marihuana Criminal Law: Section 8 Affirmative Defense

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 the defendant but the trial court did not allow him to present his affirmative defense at trial. The trial court determined that the 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. This results in 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.

The defendant and his registered qualifying patients testified about their interactions with Dr. Kattoo. The Court found that only one patient was able to 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.

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