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A Better Partnership
November 21, 2013

Valid patient and/or caregiver card is insufficient, by itself, to seek protection from prosecution under MMMA

In People v. Hartwick, the Court of Appeals continued to chip away at the protections available to qualified patients and caregivers under § 4 and § 8 of the Michigan Medical Marihuana Act (MMMA). Although defendant was a registered medical marijuana patient and caregiver, he was not entitled to the presumption of immunity under § 4 because he could not identify his patients’ medical conditions or physicians, and he did not know the amount of marijuana reasonably required for each patient’s treatment. For the same reasons, defendant was also not entitled to raise the affirmative defense in § 8. Hartwick continues the trend of Michigan courts reading the defenses and immunities of the MMMA narrowly.

Section 4 of the MMMA, MCL 333.26424, creates a presumption of immunity from criminal prosecution and other penalties for registered qualifying patients and primary caregivers. However, “mere possession” of a registry card “does not guarantee that the cardholder’s subsequent use and production of marijuana was ‘for the purpose of alleviating the qualifying patient’s debilitating conditions.’” Because the defendant failed to produce specific evidence of the other patients’ medical needs, the Court ruled that he could not establish that he was “holding true to the medical purposes” of the MMMA and was therefore not entitled to § 4 immunity.

Turning to § 8, MCL 333.26428, which outlines the possible defenses a person can make when charged with violating the MMMA, the Court held that the defendant needed to demonstrate three things before he could assert a § 8 defense: (1) that a bona fide physician-patient relationship existed; (2) that the patient and caregiver were not in possession of an amount of marijuana that was more than “reasonably necessary” for the patient’s treatment; and (3) that the marijuana supplied by the caregiver was actually used for medical purposes. Rather than providing evidence of these factors, the defendant asserted that his possession of state-issued registry cards was sufficient to establish all elements. Again reiterating the purpose of the MMMA, the Court held that while a registry card is necessary, “[p]ossession of a registry card, without more, does nothing to address these § 8 medical requirements.” Instead, it likened defendant’s claim to “stating that possession of a Michigan driver’s license ensures the holder of the license always obeys state traffic laws.” Accordingly, the Court held that the defendant, without more, did not have a valid § 8 defense, and the trial court did not abuse its discretion when it denied his requests for dismissal under § 8 or to present the § 8 defense at trial.

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