On May 31, 2012, the Michigan Supreme Court handed down a decision in People v. Kolanek that will provide some much-needed guidance to lower courts, prosecutors, and defense attorneys dealing with the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. The decision contained several rulings on the interpretation of the MMMA. This post will examine these holdings and how they will likely affect future MMMA criminal litigation.
1. Section 4 grants broad immunity to registered patients.
The Court reaffirmed the language of the MMMA, that those patients who take the time to register with the state as medical marijuana users and to comply with the restrictions as to amount of marijuana, numbers of plants, and an enclosed locked facility for storage, are granted extensive protection against “arrest, prosecution, or penalty in any manner” and may not be denied “any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational professional licensing board or bureau, for the medical use of marihuana…” MCL 333.26424. The Court also reiterated protection against denials of custody or parenting time as a result of being a registered user.
While the Court emphasized the broad nature of the extra protections available to registered patients under Section 4, it is unclear how, procedurally, this will aid the many card-carrying patients who have their grow operations “inspected” and are charged and prosecuted even though they are following the restrictions in Section 4, or those who are experiencing collateral deprivation of rights and privilege such as employment or child custody. It should be noted, however, that neither of the two cases considered in this consolidated opinion asserted a defense under Section 4; both defendants relied on the Section 8 affirmative defense. It is possible that another subsequent ruling will be needed to ensure uniform enforcement of Section 4.
2. Registered patients (and any unregistered persons) who do not qualify for Section 4 immunity may assert the Section 8 affirmative defense.
The Court held that technical violations of the restrictions outlined in Section 4 did not completely eliminate registered patients’ protection under the statute. Instead it simply put the registered patients on the same page as everyone else. Any patient or person who uses marijuana for medical purposes (on a doctor’s recommendation), has the right to assert the affirmative defense under Section 8. This includes registered patients that for whatever reason fail to comply with the technicalities of Section 4. For example, Defendant King (in the consolidated matter People v. King) kept half of his medical marijuana in a padlocked, 6 foot tall dog kennel with no top enclosure, and the other half in an unlocked closet. The Court’s decision says even though King, a registered patient, hadn’t complied with the Section 4 restrictions in order to be granted broad immunity, he could still raise the Section 8 affirmative defense.
This ruling by the Court should provide a degree of consistency in the enforcement of the MMMA. It will prevent the illogical occurrence where a person who went through all the steps to become a registered patient with the state is deprived protections granted to anyone using marijuana for medical purposes (on a doctor’s recommendation), simply because of a technical error or misinterpretation.
3. Section 8 grants a more limited protection for the use of medical marijuana in criminal prosecutions (and forfeitures and professional licensing boards) to unregistered users.
Here the Court clearly indicated that a person does not have to be a registered patient to take advantage of the protections of Section 8. At the same time, it recognized that those protections are significantly more limited. In order for the trial court to dismiss a case based on a Section 8 affirmative defense, the unregistered user has to prove:
(1) A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition. MCL 333.26428.
Again, this will provide for more uniformity in the courts. Previously, some courts were requiring even registered patients to prove the Section 8 defense elements (in addition to the Section 4 compliance). Others may not have allowed non-registered patients to assert the Section 8 defense. This ruling clearly outlines who the MMMA protects and when.
5. A defendant need not establish that he or she qualifies for Section 4 in order to obtain protection under Section 8.
The details of this ruling has already been explained above, but the importance of the ruling cannot be overstated. Courts all over the state had been requiring defendants to prove that they qualified under Section 4 in order to assert the Section 8 affirmative defense. The Court very clearly held that these are 2 separate levels of protection with 2 separate lists of required elements. The defendant need not prove one to assert the other. Section 4 is not a gateway. It is instead the highest level of protection available to a medical marijuana patient.
6. A Section 8 affirmative defense must be asserted in a pre-trial motion to dismiss.
Procedurally this is very important to medical marijuana defense attorneys. A Section 8 affirmative defense can’t be raised at trial for the first time. In fact, the trial court is required to hold an evidentiary hearing prior to trial to determine whether the matter should be dismissed under Section 8. At that hearing, the Court outlined 3 possible outcomes:
- That all the elements of the Section 8 affirmative defense are proven and no question of fact exists for a jury to deliberate on. In this instance the case is dismissed prior to trial.
- That some evidence on each of the elements of the Section 8 affirmative defense is provided, but that a factual question exists for the jury to decide (such as whether a bona fide physician-patient relationship existed at the time of certification, or whether the defendant had more marijuana than was reasonably necessary to treat his or her condition). If this occurs, then the defense is presented to the jury to decide the factual questions
- That one or more elements of the Section 8 affirmative defense are not proven and no reasonable jury could determine otherwise given the facts presented in the evidentiary hearing. In this case the defendant may not present the defense to the jury at the time of trial.
This ruling is pivotal. Many judges have been erring on both sides of this matter. Some have not been holding evidentiary hearings or have been allowing the defendant to double-dip and present the defense to the jury even after determining there was not evidence to dismiss in the pre-trial motion. Others have been making rulings on fact questions, such as whether a bona fide physician-patient relationship existed in cases where reasonable jurors could have gone either way. Defense attorneys, likewise, have been failing to assert the Section 8 affirmative defense prior to trial and have therefore not allowed the trial courts to make the necessary determinations as to the legal validity of the defense. This ruling represents a major shift in how Section 8 affirmative defenses are handled and balances the defendant’s right to assert a legal defense against the court resources in holding expensive jury trials.
7. A qualifying physician’s statement must have been made after the MMMA came into law but before the charged offense occurred.
The Court clarified that the MMMA grants protection to individuals that physicians recommend take marijuana for medical purposes. This presupposes that the physician has made this recommendation before the person used the otherwise illegal drug. Similarly, the MMMA does not apply retroactively to recommendations made by physicians before the law went into effect.
This time restriction puts an end to medical marijuana defense attorneys seeking out physicians to approve their patients’ prior use of marijuana. If a patient has a legitimate medical need, he or she must get a recommendation from his or her physician and then undertake the use of marijuana pursuant to that recommendation. A later recommendation will protect the patient from future charges, but cannot be applied to defend against the previous charge. This was a matter of some controversy among defense attorneys, which this case has hopefully put to rest.
People v. Kolanek should prove to be a defining case in the area of medical marijuana law. Hopefully, it will result in more uniform enforcement and defense of these matters. While additional case law is certainly needed to clarify the Section 4 immunity and other elements of the Michigan Medical Marihuana Act, this case should provide some much needed guidance to trial courts, prosecutors, and defense attorneys alike.