dissecting a motion to dismiss hearing under Medical Marihuana Act

“now, when you digest marijuana, do you feel better?”

This was was the assistant prosecuting attorney (“APA”) asked the defendant. I suppose his inquiry was whether or not marijuana really is of medical use to the defendant. Or that, if you felt better, it must not be a debilitating condition. I had to grin because, well, lots of people like it because it makes them feel really good. But so what if you do feel better. Morphine can certainly make you feel better but it won’t eliminate any debilitating condition. Chemotherapy doesn’t make you feel better but it is of medical value. Thus, this was an indication of a fallacy coming from a team of lawyers experienced in prosecuting drug possession charges, but now confronted with a new medical marijuana affirmative defense. This particular hearing was to hear a motion to dismiss the possession of marijuana charge. The defendant did not see a doctor for registration under the Michigan Medical Marihuana program until two days after his arrest. Thus, the defendant is asserting medical use as a defense at at time where he had not seen a doctor for recommendation to use marijuana. So, does an affirmative defense based on the fact that the defendant believed it was of medical use work? The Michigan Act is certainly broad enough to include pre-recommendation medical use.  The prosecution doesn’t think so.

So, I decided to write this blog about it. 

The case was simple: the defendant was charged with  possession of a single marijuana cigarette found in his jacket. A police officer came to his house after an informant claimed a marijuana plant was growing at that house. The defendant is registered through the Michigan Medical Marihuana Program. However, he registered after he was arrested for possession. He has been diagnosed with symptoms involving weight loss, nausea, muscle spasms, and seizures. A doctor in Battle Creek recommended his using of marijuana for medical use. One additional fact: the defendant has had his condition well before his arrest for possession.

The defendant’s attorney, an experienced criminal-defense attorney originally from California, began by interviewing the doctor by telephone. This is a critical part of the affirmative defense. The doctor has to establish evidence to support an affirmative defense of medical use. The doctor must testify that the defendant has a debilitating medical condition, and that the medical use of marijuana is likely to alleviate or treat that condition. At this particular hearing, the doctor also discussed what he thought was an effective dose. This sets the stage for determining whether one marijuana cigarette was not an unreasonable quantity. This doctor thought that one cigarette was pretty low for the defendant’s condition.

The APA’s argument was that the new Medical Marihuana Act and its affirmative defense to possessing marijuana was a convenient defense for any offender. That might make sense, especially if the defendant had not registered for medical use until after the arrest. However, the defendant still has to prove that he has a debilitating condition and medical use of marijuana will help that condition; a possiblity of physican-defendant collusion to avoid arrest seems less likely. So, how would the APA be able to counter a physician’s testimony?

To begin, the APA heavily stressed whether there was a bona-fide physican/patient relationship. In Michigan, there is no case law that defines what this means. The APA thought that a physician who only takes referrals of patients that will need medical marijuana is not bona-fide. Instead, such a physician is in the business of creating Medical Marihuana registrants by simply glancing at medical records from another hospital and quickly drawing up recommendations, much like a products on a factory. Either that, or this was a physician who conspires with defendants to get them off charges of marijuana possession.  The APA thought the fact that the medical practice being in a hotel indicated further evidence that it was not a bona-fide relationship. 

Surprisingly, the defendant got up to testify.  The APA asked him whether he knew about the legal defense of medical marijuana at the time of his arrest. The APA also asked the arresting officer if the defendant ever expressed his medical marijuana rights. Here, the APA was implying that a defendant must assert the right during an arrest. He later acknowledged that no such requirement existed.

When the APA questioned the arresting officer, he inquired about the general appearance of the defendant. Did he look sick? Did the defendant explain his medical condition, even show x-rays? So, even if it was not important to assert a right to medical marijuana during an arrest, the APA was getting to his basic point. Medical marijuana is an convenient defense for someone to get charged with possession of marijuana. His inquiry about appearance was suggesting that the defendant is really fine, his condition was not debilitating, the physician is a paid expert witness. The motion to dismiss based on medical use is all a clever ruse to avoid conviction. The APA even cited a recent California case because of the concern of “post-arrest” certification, meaning the defendant goes out after an arrest and colludes with a physician to qualify for medical use of marijuana. The defendant’s attorney dismissed that case as not binding, and stressed that the affirmative defense clearly provides for the possibility of medical use before any doctor recommendation as long as the defendant can provide the required evidence.

That is what the defendant did in this hearing. The APA only really disputed whether it was a bona-fide physician relationship. He really didn’t do a good job disputing whether the condition was one that qualified as a debilitating condition. So, if the judge finds that it was a bona-fide relationship, then he must consider whether the affirmative defense should apply before a doctor actually recommends it. However, the statute calls for mandatory dismissal if the defendant can provide the required evidence.  Thus, the judge probably has no room of statutory interpretation (other than whether it was a bona-fide relationship) because if the defendant has provided the required evidence, his charge must be dismissed necessarily. I can definitely see the APA appealing this case should the Court decide for the defendant.

Personally, I agree that medical use of marijuana should extend to any period before a doctor recommended it. I think it would be difficult to fabricate medical records going back years, especially if the defendant came to see a doctor days after his arrest.  An individual would likely know if marijuana helped his or her debilitating condition. Thus, it would be inhumane to prosecute an individual for marijuana possession just because he or she had not obtained a registration card first. Also, this requirement of doctor recommendation before arrest would not read from the statute itself. Clearly, the statute provides two levels of protection: a presumption of medical use if the individual registers with the Michigan Medical Marihuana Program, and an affirmative defense of medical use in a criminal charge for possessing marijuana. Thus, why would there be an affirmative defense if the law required doctor recommendation before valid medical use? In order to construe this requirement, the statute would have only the requirement to register with the state of Michigan.

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

2 Responses to “dissecting a motion to dismiss hearing under Medical Marihuana Act”

  1. Sunni Ball says:

    I recently co-presented with an attorney to the Colorado Bar on the use of medical marijuana and parenting. In preparing I discovered a number of disturbing research conclusions. First of all, many doctors are prescribing less and less. MS patients can have seizures after taking medical marijuana. In order for marijuana to alleviate intraocular pressure in glaucoma patients, the patients must remain “high” constantly. A woman who takes marijuana while pregnant risks congenital heart defects in the fetus. Adolescents are more prone to cannabis psychosis, a paranoid schizophrenic type disorder. Colorado passed their medical marijuana law in 2000. From 2000 to 2008, there were only 2,000 registered users in the State. From 2008 to 2010, there are now over 20,000 registered medical marijuana users, and “dispensaries” have sprung up everywhere. The back of a local newspaper recently had 12 pages of ads for medical marijuana dispensaries, offering such bargains as “free joint Friday”. The procedure involved seeing one of “their” doctors, getting the client’s medical records from the “doctor”, which cost about $150, then applying to the State for a license to the cost of $90 and then purchasing the product. Not great here. And the risks are too many. Not a legal opinion, but a mential health prospective.

  2. Robert says:

    First of all, medical doctors technically cannot prescribe marijuana as this is clearly prohibited by the Federal Controlled Substances Act. see http://en.wikipedia.org/wiki/Controlled_Substances_Act#Schedule_I_controlled_substances. Federal Law has classified cannabis as a drug with no medical use at all. (The grounds for this classification are a topic for another article.). More likely, a doctor is only “recommending” the use of marijuana for the patient. Because the doctor is so limited by making only a recommendation legally, your facts about the risks of marijuana really begs for the federal laws to be changed so that doctors have more control over its medical use. Also, I do not see how your cited risks show that marijuana has no accepted medical use. Like any other pharmaceuticals, there are side effects and risks that coincide with accepted medical use. Your cited facts suggest that the drug should only be used under doctor supervision. With more doctor control, certainly a prudent doctor will not prescribe cannabis to pregnant women or to young adolescents and children. If a glaucoma patient finds that cannabis is too burdensome, then he or she is always free to ask for other available pharmaceuticals. Finally, by changing the Federal laws, I would think there would be more studies over the medical use of marijuana, and doctors would make more informed choices when prescribing it. This would include Multiple Sclerosis. Through more studies and doctor control, perhaps most doctors won’t prescribe marijuana because it may not be the best treatment for MS. Thus, we really need to adjust the Federal Controlled Substances Act classification of cannabis. The issue really is about whether marijuana has any medical use, and if so, why does the U.S. Government continue to classify it as a schedule I drug.

    As far as your facts of the number of medical marijuana registrants in Colorado, how does the fact that registrants going from 2,000 to 20,000 suggest an unacceptable risk?

    Now, if the local population is aggravated by the presence of dispensaries, they are always free to enact zoning laws much like adult businesses. Still, how does the growth of dispensaries create an unacceptable risk?

    Moreover, why is there implied that doctors who recommend marijuana aren’t real doctors or there is something ironic about a doctor recommending medical use. Where is the foundation for this assertion? In the motion to dismiss case that I wrote about, the assistant prosecuting attorney did precisely that–imply that the doctor was not legitimate or only in the business of registering patients. In Michigan, the doctor still has to establish certain requirements under the law; one is that the patient has a debilitating condition. More likely, that doctor will have to defend himself or herself in court over why the recommendation was made. Why is it not good enough that a doctor can establish statutory requirements under the law?

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