The Michigan Medical Marijuana Act

Citation of the law:  Cite as the Michigan Medical Marijuana Act

 

Effective Date: 10 days after official certification of the election [Mich Const 1963 Art. 2, Sec. 9], which is scheduled for November 24. Effective date will be December 4, 2008.

 

Law specifically authorizes medical use:  Section 7 (a) "The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act."

 

Medical Use of Marijuana - "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.

 

Two Levels of Protection

Registry ID Card Protections and Immunities

Affirmative Defense regardless of Registry ID card

 

Disqualifications for protections under Act: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that apply to the Section 8 affirmative defense and to the Act's other more prophylactic immunities for registry participants. The defense may not be asserted for any of the following:

Smoking marijuana "in any public place";

Smoking marijuana on any form of public transportation;

Any use by a person who has no serious or debilitating medical condition;

Any conduct where being under the influence would constitute negligence or professional malpractice per se;

Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

Any use or possession in a school bus;

Any use or possession on the grounds of any preschool, primary, or secondary school;

Any use or possession in any correctional facility;

 

 

The Medical Purpose Affirmative Defense

The law sets up a registry ID program, with written certifications for Doctors, and designated Primary Caregiver. This program offers more affirmative immunities, including immunity from arrest. However, if you are charged with any crime relating to marijuana, you can asset the Medical Purpose Affirmative Defense. This is an umbrella defense for patients and primary caregivers, regardless of whether they are registered with the government, and if defendant makes a showing of its elements at an evidentiary hearing the court must dismiss the case. This catch all defense is very powerful, and not difficult to prove.  

Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of the affirmative defense, and crates a presumption of validity of the defense where a showing is made as to its elements. "Patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense." Generally, in asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence. At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.

 

Statutory authority to bring a motion to dismiss, and mandatory dismissal:

Section 8(b) establishes the statutory authority for a motion to dismiss. "A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissedfollowing an evidentiary hearing where the person shows the specified elements of the defense." The showing must prove the elements by a preponderance of the evidence, and where this showing is made the dismissal is mandatory.

 

Standing and Scope of the Affirmative defense:

The affirmative defense is available to the following people:

Any "patient" who demonstrates the patient's medical purpose for using marihuana pursuant to this section; or

Any patient's "primary caregiver" who demonstrates the patient's medical purpose for using marihuana pursuant to this section.

The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia, in these proceedings:

Any prosecution involving marihuana [Section 8(a)]

Any disciplinary action by a business or occupational or professional licensing board or bureau [Section 8(c)1]; or

Forfeiture of any interest in or right to property. [Section 8(c)2]

 

No Seizure or Forfeiture of Marijuana Supply: Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited. [Section 4(h)]

 

 

Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that apply to the Section 8 affirmative defense and to the Act's other more prophylactic immunities for registry participants. The defense may not be asserted for any of the following:

Smoking marijuana "in any public place";

Smoking marijuana on any form of public transportation;

Any use by a person who has no serious or debilitating medical condition;

Any conduct where being under the influence would constitute negligence or professional malpractice per se;

Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

Any use or possession in a school bus;

Any use or possession on the grounds of any preschool, primary, or secondary school;

Any use or possession in any correctional facility;

 

Elements of the Affirmative Defense:

The Gatekeeper's Statement [Section 8(a)1]:

·         A physician (Licensed MD or Osteopath)

·         has stated that

·         in the physician's professional opinion

·         after having completed a full assessment of

·         the patient's medical history and

·         patient's current medical condition

·         which assessment was made in the course of a bona fide physician-patient relationship

·         that 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

The Reasonably Necessary Quantity [Section 8(a)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

The Medical Purpose [Section 8(a)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.

 

Medical Use of Marijuana - "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.

 

 

Disqualifications for Protections under Act: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that apply to the Section 8 affirmative defense and to the Act's other more prophylactic immunities for registry participants. The defense may not be asserted for any of the following:

Smoking marijuana "in any public place";

Smoking marijuana on any form of public transportation;

Any use by a person who has no serious or debilitating medical condition;

Any conduct where being under the influence would constitute negligence or professional malpractice per se;

Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.

Any use or possession in a school bus;

Any use or possession on the grounds of any preschool, primary, or secondary school;

Any use or possession in any correctional facility;

 

 

Parties Protected by the Act

Patients - [affirmative defense only] a user or caretaker who possesses not more than an amount reasonably necessary to insure uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms, uses for a medical purpose, whose doctor has stated 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.

Registered Qualifying Patients -  - [Section 3(f)]. "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition. Must have a registry identification card, or legal equivalent if department fails to issue. [Section 9(b)].

Visiting Qualifying Patient - [Section 4(j)] "Visiting qualifying patient" means a patient who is not a resident of this state or who has been a resident of this state for less than 30 days. [Section 3(k)] A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient's medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department.

Primary Caregivers - [Section 4(e)]"Primary caregiver" means a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs. [Section 3(g)]    A registered primary caregivermay receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

Physicians - [Section 3(f)]"Physician" means an individual licensed as a physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556.Bystanders and assistants – A person in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

Providers of Paraphernalia for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient's medical use of marihuana.

 

 

Medical Conditions Covered

Physicians as Gatekeepers – There is no provision whatsoever in this law that allows anyone to second guess your physician’s professional judgment. This includes not only the judgment thatmarijuana is likely to produce therapeutic or palliative benefits but also the judgment as to whether your condition meets the statutory criteria. This statutory criterion has several options that allow the specific list to be expanded substantially. As shown below, if not on the specific list of conditions immediately below, you can qualify if your doctor determines, in his or her  judgment that that you have, “A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

 

Even more expansive is the very general criteria set for umbrella affirmative defense. It includes any “serious medical condition” in addition to “debilitating medical condition” and does not require any “chronic and sever pain” or other specific symptoms

 

Specific Medical Conditions listed in Statute

“Debilitating medical conditions":[Section 3 (a)1]

Applies to these medical conditions and the treatment of the following conditions:

 Cancer

Glaucoma

Positive status for human immunodeficiency virus

Acquired immune deficiency syndrome

Hepatitis C

Amyotrophic lateral sclerosis (ALS - Lou Gehrig's Disease)

Crohn's disease

Agitation of Alzheimer's disease

Nail patella

New conditions can be specified: [Section 3 (a)3] Applies to any other medical condition or its treatment approved by the department, as provided for in section 5(a).

 

General Diseases , Medical Conditions, and treatment not listed but authorized in Statute:Open ended definition of  "Debilitating medical condition" includes any other conditions below[Section 3 (a)2]

 A chronic disease or its treatment

A chronic medical condition or its treatment

A debilitating disease or its treatment

A debilitating medical condition or its treatment

if it produce sany of these symptoms or side effects:

cachexia or wasting syndrome;

severe nausea;

seizures, including but not limited to those characteristic of epilepsy; or

severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

Departmental Authority to expand conditions covered

New conditions can be specified in future: [Section 3 (a)3] Applies to any other medical condition or its treatment approved by the department, as provided for in section 5(a).

 

Affirmative Defense Conditions Covered [section 8] - any “serious or debilitating medical condition” or “symptoms” of a serious or debilitating medical condition, if a doctor has stated, in his 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, that the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's the condition or symptoms.

·         This standard is different than for obtaining the written certification for the registry ID card – it includes any “serious medical condition” in addition to “debilitating medical condition” and does not require any “chronic and sever pain” or other specific symptoms, so the defense applies if your doctor, 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, makes the statement that, “in my professional opinion, you likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate your serious condition or its symptoms.”

 

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