Medical Marijuana Decisions

The Michigan Court of Appeals handed down a ruling yesterday regarding reinstatement of manufacturing and delivery felony charges against two defendants who did not have medical marijuana cards when they were arrested. Under Section 8 of the Michigan Marijuana Act (MMA), even though a person may not have yet obtained a “patient” card, an affirmative defense may be asserted if there is a “bona fide” relationship with a physician, the person has a debilitating condition, and the physician determines that marijuana will provide a therapeutic benefit to that person.
A defendant charged with a felony is entitled under Michigan law to a preliminary exam in order to determine whether there is probable cause that a crime was committed and the defendant may have committed the crime. If probable cause is found, the case is then bound over to Circuit Court. In this case, the District Court, that first heard the matter, dismissed the charges against the individuals after a preliminary examination determining that under Section 8 of the MMA the defendants had not committed a crime.

The prosecutor then appealed to the Circuit Court which ruled that questions of whether a “bona fide” relationship existed between the defendants and physician, whether the defendants had a debilitating condition, and whether marijuana would provide a therapeutic benefit to the defendants, were questions of fact that should be decided by conducting a trial. The defendants then appealed to the Michigan Court of Appeals, which upheld the decision of the Circuit Court, agreeing that these were questions of fact and should be decided by a jury.

As I have said to many prospective clients who call me, smoking, possessing and growing marijuana is still against the law in Michigan and the MMA only provides an affirmative defense. That means, according to the Appeals Court, that a jury will have to decide whether you qualify.

The District Court judge in this case stated, “the MMA is probably the worst law ever written” and provides little guidance to police, prosecutors and the courts. So unless you are willing to pay an attorney to defend you against drug charges, let someone else be the test case and define the law.