The Michigan Medical Marihuana Act (MMMA) provides protections to users of therapeutic marijuana and their caregivers. But a recent Court of Appeals opinion has put a big caveat on those protections, and it’s one of which caregivers had better take notice.
In a rather straightforward case, the defendant was a medical marijuana card holder and a caregiver for five other card holders. He allowed the police to inspect his grow operation (which he was not required to do by law) and they found several violations of the MMMA. What makes the case interesting is that in defending against the resulting controlled substance charges, the defendant simply relied on the fact he was a registered MMMA patient and that each of the people he provided for had shown him valid registry cards. His position was that the possession of the required cards immunized him any prosecution and that the case should be dismissed.
But the defendant had missed a very important part of the law. By having a card and complying with the MMMA (which it appeared he was not), the defendant would be entitled to the presumption that he was growing, distributing, and using medical marijuana for medical purposes. But in law, very few presumptions are absolute. Here, the prosecution was allowed to present evidence that the marijuana was not being used medicinally. It did so by showing that the defendant had no knowledge of his qualified patients’ debilitating medical conditions or treatment plans provided by their doctors.
The Court of Appeals confirmed this approach as valid, relying on the voter initiative’s intent to protect medical users. In so doing, the court created a medical standard of care for MMMA caregivers, most of whom have no education or certification in any medical field. Under this new standard of care, caregivers must:
- Obtain the names of the certifying and treating physicians of the people they provide for;
- Ascertain whether the physicians continue to treat the people they provide for;
- Receive documentation of the debilitating medical condition for which the people require marijuana;
- Regulate doses of marijuana as indicated by the physicians, including any end to the treatment.
The court noted that there was nothing in the statute requiring this level of care, but it held that without this information there is no way for a caregiver to know he or she is providing marijuana for a medical purpose. It seems the court has determined that a qualified patient registry card creates a presumption of medical use in court, but that the caregivers cannot rely on that presumption.
If you know a caregiver looking for advice on how to comply with the Michigan Medical Marihuana Act, have them contact attorney Lisa J. Schmidt for a consultation.