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CRIMINAL 2: What are the requirements for Section 8 defense under Michigan Medical Marijuana Act?

Under the Michigan Medical Marijuana Act, both an immunity provision (Section 4) and an affirmative defense provision (Section 8) offer protection against prosecution for the medical use of marijuana.

This case arose out of defendant’s transfer of marijuana to a client at a medical marijuana dispensary.  Unbeknownst to defendant, the client was a confidential informant. At the hearing, defendant testified that he worked at a medical marijuana dispensary helping out patients with their medicine. Defendant testified that the presentation of the medical marijuana card informs him that the person in possession of the card has a relationship with their doctor and that they can have two and a half ounces of medical marijuana for personal use.

Under Michigan law, it is a crime to use, possess, manufacture, or deliver marijuana. This law was not changed with enactment of the Michigan Medical Marijuana Act. Rather, the act provides protection from state prosecution under Section 4 and Section 8.  Individuals who meet the patient or caregiver definitions may assert a Section 8 defense. Because defendant did not present evidence to create a question of fact on each of the three elements of a Section 8 defense, the trial court denied defendant’s motion to present a Section 8 defense.  Following a jury trial of delivering/manufacturing marijuana, the court sentenced defendant to 180 days in jail and 18 months’ probation.

Under the MMMA, a defendant charged with a marijuana-related offense may assert a Section 8 defense if the defendant presents evidence supporting the following three elements:

(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 marijuana 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 marijuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marijuana 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 marijuana or paraphernalia relating to the use of marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.

If a defendant establishes these elements and no question of fact exists regarding these elements, then the defendant is entitled to dismissal of the criminal charges.

In this case, the trial court found that there was a question of fact regarding element 1, but determined that defendant did not present sufficient evidence to create issues of fact regarding elements 2 and 3. Standing alone, proof of a medical marijuana registry card is insufficient for a defendant to meet his burden of proof. The trial court found that defendant did not present any evidence to show that he had any information which would help him or allow him to make a determination as to what would be a reasonable amount for the client to use. The trial court held that defendant dispensed marijuana in the nature of a business transaction. The court noted that defendant did not have any actual knowledge of what the client’s condition was and whether or not he was actually using the marijuana he was being sold to treat that condition.

With the rise of medical marijuana has come a rise in arrests for possession and use of marijuana. At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, we help defend clients from criminal charges throughout southeast Michigan. Fortunately, there are options for keeping a marijuana crime conviction off your record and for fighting a charge. This is why it is important to hire a skilled and experienced criminal defense attorney.

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