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A Better Partnership
September 19, 2012

COA Opinion: Misapplication of Medical Marijuana Act prompts a do-over of the hearing on the Act's affirmative defense to prosecution

Under the Michigan Supreme Court's June decision in People v. Kolanek, trial courts must conduct a quasi-evidentiary hearing to determine whether a criminal defendant may assert "medical purpose" as an affirmative defense to marijuana-related charges under the Michigan Medical Marijuana Act, MCL ' 333.26428. Under Kolanek, though the trial court must conduct an 'evidentiary hearing," the trial court may not decide any factual issues. It may only determine whether the evidence established a prima facie defense and whether genuine issues of material fact remain to be adjudicated at trial. This means the trial court is only resolving an issue of law, which is reviewed de novo in the Court of Appeals. In People v. Anderson, however, the Court of Appeals declined to review the issue because the attorneys and trial court had conducted the hearing as one to resolve factual issues. Because this "mistaken assumption likely affected the parties' decisions in preparing and presenting their cases to the trial court at the hearing," the Court of Appeals, in the "interests of justice" elected to instead vacate the lower court's decision and remanded for a new hearing. The Court of Appeals also suggested that the trial court clarify its ruling on whether expert testimony is necessary to support or contest any particular element of the affirmative defense'an issue we are likely to see percolate to the surface in future Medical Marijuana Act cases, if not this one.

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