Medical Marijuana Affirmative Defense – Atty. Bruce Alan Block
So, you qualify as a medical marijuana patient and/or caregiver and were arrested, or your house was searched, and now you are being charged with possession of marijuana, manufacture (growing marijuana), possession with intent to deliver marijuana, and maintaining a drug house. Now what?
Michigan's Medical Marijuana Affirmative Defense to Criminal Marijuana Charge.
The Michigan Medical Marihuana Act gives protection to both registered AND surprisingly, to unregistered patients and their caregivers. Irrespective of the identification card system, there is a second completely separate way of defending your medicinal use of marijuana. This separate non-ID card affirmative defense of medical marijuana is presumed by law to be valid when three criteria are met:
1) A physician has stated in writing that a patient is likely to receive therapeutic benefit from using marijuana. The key to this first requirement is that the person has a licensed doctor who is willing to certify, and possibly testify, that the patient is likely to receive a therapeutic benefit from the use of weed. Even if the patient or caregiver gets busted before they are registered, once a physician certifies that the person would have benefited from medical pot at the time of arrest, the affirmative defense applies even though he/she was not registered.
2) The patient and caregiver were in possession of an amount of marijuana and marijuana plants not more than 'reasonably necessary to ensure the uninterrupted supply' of marijuana to treat the patient. Unlike the 2.5 ounce and 12 plant limits of Section 4, Section 8 does not set any limits. Section 8 instead allows a patient or caregiver to have as many plants and ounces as "reasonably necessary" to guarantee an uninterrupted supply. Common sense applies here, and you would do well to stay within the limits of Section 4, as it may be extremely hard to argue this defense if you have a large amount of cannabis.
3) The patient or his designated caregiver was actually engaged in acquiring or growing marijuana – cannabis for the patient.
If a person accused of a marijuana crime can demonstrate these three criteria, a court MUST dismiss the marihuana charges. Of course, although this sounds good in theory, in reality it does not happen this way. Do not make the mistake of thinking you can represent yourself in court and win in such a contest. Marijuana has been demonized since it was declared illegal since 1937 and added to the Schedule I list of drugs in 1970, and not surprisingly, there is a tremendous amount of resistance to this new law. You should plan to hire an experienced attorney to help you! Full text of the Marihuana Act
If the Affirmative Defense of Section 8 is properly presented and argued before a judge, an arrest for possession or manufacture of marijuana can literally be dismissed! The Michigan Court of Appeals has ruled that the accused must have obtained a pre-arrest, certification from a Michigan licensed physician (M.D. or D.O.), that states that they will likely obtain a benefit from using marijuana, the amount cannot be more than reasonably necessary, and the accused must have been using, growing, possessing, or or obtaining marijuana to meet a patient's medical needs.
Contrary to popular belief (and daily headlines), the Medical Marihuana Act does not provide a defense for recreational possession or use; it is strictly a protection for the medical user and their helper or caregiver. The Marihuana Act only protects those growing, possessing, and using marijuana for medicinal purposes. The Act does not protect the recreational user, and even goes so far as establishing penalties for recreational users who try to use the Act as a shield. Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution is punishable by a fine of $500.00, in addition to any other penalties that may apply for making a false statement to a police officer and violating the controlled substances act.
Retroactive Application – Physician's Certification.
The Michigan Medical Marihuana Act is not “retroactive.” That means it does not apply to arrests that occurred prior to the December 4, 2008 effective date. Nor does it undo convictions that occurred prior to effective date. However, if you discussed the medicinal use of marijuana with your physician after the passage of the act, but before any arrest and your physician recommended that you be allowed to use medicinal cannabis, and are subsequently are charged with a marihuana related offense, you should be able to assert the Affirmative Defense.
This part of the Michigan Medical Marijuana Act that allows for protection for a patient or their caregiver from state criminal charges without having gone through the formal registration process is somewhat unusual. The Medical Marihuana Act allows an unregistered patient or their caregiver to raise this Affirmative Defense of Section 8 of the Act, even though they never registered with the state's medical marijuana program. The Michigan Court of Appeals ruled that the person charged must have consulted and obtained a doctor's recommendation prior to the unregistered use or possession of medical marijuana.
There are many who do not trust 'big brother' and this portion of the Act allows one to avoid a marijuana conviction, so long as you meet the three criteria. Of course registering under the Act would be the wiser course, as doing so should provide you with a 'safe harbor,' credibility with police officers, and save you time, money, and the embarrassment of being arrested, booked, and charged with a crime (not to mention having your medicine seized). Also, it can be expensive to bring your medical doctor to a hearing to testify.
Federal Laws do Not Recognize Michigan's Medical Marijuana Act and Defenses.
All should be aware that the state medical marijuana laws do not carry any weight or authority with the federal government. It goes without saying that there are very strict federal laws that prohibit possession of marijuana, manufacture of marijuana, and the gift, sale, or delivery of any amount of marijuana. Ironically, while medical marihuana is legal in the District of Columbia, federal law still prohibits any medicinal use. Most federal criminal marijuana laws have mandatory minimum prison sentences, and marijuana remains on the Schedule I list of highly prohibited drugs. There is also the 1000 foot Drug Free School Zones that you must not violate.
The federal government is not required to recognize Michigan's Medical Marijuana Identification Card system or its Affirmative Defense. To a federal pot or cannabis charge, the ID card and the affirmative defense is "not relevant," meaning a federal judge will refuse to acknowledge its defenses and it cannot even be mentioned at trial. Michigan, Colorado, California nor any of the other medical marijuana state laws trump federal law, which has kept weed on its Schedule I list of illegal drugs. To a federal pot or cannabis charge, the ID card and the affirmative defense is “not relevant,” meaning a federal judge will refuse to acknowledge it and can prohibit any mention of medical marijuana at trial.
The current Obama administration has indicated a "hands off" approach to those caregivers and patients who register and comply with Michigan's medical marijuana laws. See our Medical Marihuana page for more information. Of course, this decision not to prosecute could be changed at any moment by a new administration in Washington.
Despite the Department of Justice claims that it will not actively investigate those who are in strict compliance with State Law, the DEA recently subpoenaed the Michigan Department of Community Health for caregiver and patient information. In addition, you can be charged with violating federal law if you are on tribal property, i.e., a casino. See our Medical Marihuana page for more information.
We are Knowledgeable About Michigan's Medical Marijuana Law.
This is a new law with many grey areas. There are many lawyers, prosecutors, police officers, and the like who are not sure how to interpret and argue the Medical Marihuana Act. We know how. We are experienced.
At our Michigan Marijuana Lawyer Criminal Defense firm, we have years or experience with marijuana cases, and have defended numerous individuals charged with minor to serious marijuana crimes. We have represented patients and caregivers accused of marijuana crimes such as: possession of marijuana, manufacture, delivery, possession with intent to deliver, use of marijuana, and maintaining a drug house. We are experienced in search and seizure cases and can raise proper defenses at the appropriate times to all marijuana crimes. Put our talent and experience to work for you. Call us at (616) 458-8585.
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