The Michigan Medical Marijuana act was passed by voters nearly seven years ago. In its wisdom, the populace of Michigan felt that sick people should be able to use marijuana without fear of prosecution and jail.
However, since the Michigan Medical Marijuana Act has passed, there has been an onslaught of attacks on patients and their caregivers, led mostly by the Oakland County Sheriff’s Office. And each time, it seems as though it gets harder and harder to be a patient or caregiver in the state of Michigan.
The newest decision handed down by the Michigan Supreme Court proves that to be true once again. Moreover, it makes being a caregiver a very risky business.
Richard Lee Hartwick was confronted by police in Oakland County when they received an anonymous tip about him growing marijuana. At the time, he was a patient himself, plus a caregiver for 5 other patients. He was found with 3.69 ounces of marijuana and either 71 or 77 plants, a dispute that the courts have yet to decide. He motioned the court to dismiss based on section 4 immunity, but was denied because he couldn’t name his patients’ doctors or medical conditions.
Robert Tuttle, who was a patient and caregiver for 2 other people, was arrested when he sold marijuana to a patient who was not connected to him through the state registry, activity that has already been deemed unprotected by the Act’s immunity clause. Oakland County Sheriff deputies then conducted a search of Tuttle’s home and discovered 33 cannabis plants and 1.34 ounces of marijuana, amounts that are otherwise protected by the Michigan Medical Marijuana Act. Despite this, the prosecution stacked several more charges against him for growing and possessing the marijuana.
The Michigan Supreme Court held that conduct that is not protected by the Michigan Medical Marijuana Act does not negate the protection of the Act for otherwise compliant activities. One cannot be charged for growing 12 plants just because he may have passed a joint to someone who wasn’t his own patient.
The opinion went on to clarify some aspects of section 4 immunity and section 8 affirmative defense.
Immunity (Section 4)
It is the ruling of the Michigan Supreme Court that the burden of proving immunity under section 4 falls to the defendant and must be done so by a preponderance of the evidence. The registry card is not enough to provide the burden of proof. One must now prove that he/she was in fact in possession of what he was allowed and that any plants were under lock and key; a feat that might prove difficult for most patients or caregivers.
Also under the immunity clause, a caregiver need not know the patient’s doctor name, condition, or any other protected medical information from the patient. While this is good news for most people, the same does not hold true for anyone who finds himself needing to assert the affirmative defense.
Finally, only the caregiver’s own conduct can be used as evidence that the medical marijuana might not be for the purpose of medical use, but not the unknown conduct of the patient after he receives the medical marijuana. The opinion states:
“While the statute does not specifically state whose marijuana-related conduct may be used, when read in context it is clear that it refers to the defendant’s conduct. Stated differently, in § 4(d), only the defendant’s conduct may be considered to rebut the presumption of the medical use of marijuana. This interpretation is consistent with the purpose of § 4, which is to provide immunity from prosecution to a defendant who abides by certain restrictions. “
Affirmative Defense (Section 8)
Under section 8, the affirmative defense clause, a caregiver does need to know, and give testimony to, every patient’s medical information and dosage requirements that he/she acts as a caregiver to. A patient would have to be willing to testify for their caregiver even though they would be incriminating themselves for illegal activity. It’s a risky business, the MSC admits:
“In this context, a primary caregiver who provides marijuana to a putative patient plainly assumes the risk that the patient does not actually meet the elements of § 8(a)(1) or that the patient may not cooperate in a subsequent prosecution of the primary caregiver, regardless what that person may have otherwise told the primary caregiver.”
The card itself holds little weight once the case reaches the need for an affirmative defense. It would seem as though full and complete testimony would be necessary regarding every aspect of how the certification was attained, how he doctor completed his exam, and how the medical marijuana was used. The presumption of medical use is not given in section 8, and therefore the conduct of both the caregiver and each patient must demonstrate the purpose of medical use in order to qualify for the defense.
Though some of the decision seems like it is good news, much of it is damaging to caregivers specifically. It will be harder and harder to qualify for immunity and the affirmative defense. I wouldn’t be surprised if the number of caregivers in this state goes down dramatically after this. When compassion becomes illegal, no one wins.
Disclaimer: This article was written by a layperson, not an attorney. Nothing contained herein should be taken as legal advice. If you need legal help, please contact a licensed attorney.