marijuana law

MMMA-People v. Pointer: Prosecution Only Required to Present Evidence of a Single Violation of Section 4


David Rudoi Esq.

October 21, 2012

On October 11, 2012 the Michigan Court of Appeals issued its opinion in the MMMA related case of People v. Pointer. The defendant was charged in the trial court for violation of MCL 333.7401 (2)(d)(ii). Specifically, in the amended information the defendant was charged with manufacture/distribution of marijuana for illegally possessing 5 kilograms or more but less than 45 kilograms, or 20 plants or more but fewer than 200 plants.

The trial court issued a directed verdict in favor of the defense based on MCL 333.26424 or Section 4 of the Michigan Medical Marihuana Act. The trial court ruled that the prosecution had not fulfilled its burden because they had presented no evidence that the weight of usable marijuana exceeded the amount allowed under the Michigan Medical Marihuana Act (MMMA). However the Michigan Court of Appeals reversed the trial court’s decision because the prosecution had presented evidence that the defendant possessed more than 12 marijuana plants which is more than the amount allowed under section 4 of the MMMA.

Basically, the ruling in People v. Pointer signifies that the prosecution is only required to present evidence of a single violation of Section 4 of the MMMA to avoid a directed verdict. Thus, a single violation of Section 4 is all that is required for a person to no longer be immune from prosecution, leaving the defense with the alternative Section 8 affirmative defense which must be presented in a pretrial motion and where the burden of proof is on the Defense rather than the Prosecution.

Although, this opinion is not very good for the medical marijuana community, it is consistent with case precedent. At Rudoi Law we are always current on all the MMMA case law and are ready to aggressively defend our client’s rights.

People v. Anderson: MMMA Section 8-Trial Court Shall NOT Resolve Facual Disputes

October 1, 2012

David Rudoi Esq.

On September 18, 2012 the Michigan Court of appeal issued an opinion in the case of People v. Anderson for a second time. The Trial Court in People v. Anderson ruled in an evidentiary hearing that Anderson had not satisfied the elements of the Michigan Medical Marijuana Act‘s Section 8 Affirmative Defense. The Trial Court entered an Order denying Defendant’s motion to dismiss and precluded him from asserting the MMMA Section 8 affirmative Defense at trial.

The case was then appealed to the Michigan Court of Appeals where the ruling of the trial court was upheld in a decision that was detrimental to the Medical Marijuana movement in Michigan because it stated that Defendants must prove elements of the Michigan Medical Marijuana Act‘s Section 4 in order to assert the Section 8 affirmative defense. Most importantly, The Michigan court of appeals ruled that a Defendant must conform with the MMMA section 4 requirement of an “enclosed and locked facility” in order to assert the Section 8 affirmative Defense. This Opinion was soon overruled in the Michigan Supreme Court case of People v. King. Anderson then appealed to the Michigan Supreme Court who remanded the case back to the michigan Court of appeals in order for them to issue an opinion consistent with the Ruling in People v. King.

This time the Michigan Court of Appeals ruled that the trial court did err when it ruled that the provisions of Section 4 applied to the affirmative defense under Section 8. Thus, Anderson should not have been required to prove that his plants were kept in an enclosed and locked facility. The court also ruled that the trial court erred when it assessed the weight and credibility to be given to defendant’s evidence in attempting to resolve factual disputes. The Michigan Court of Appeals ruled that the trial courts only role in the Section 8 evidentiary hearing was to determine if, as a matter of law, defendant presented enough evidence to satisfy a prima facie defense under Section 8 of the MMMA. If a prima facie defense is established then the court’s role is to determine if any factual disputes exist that a jury must resolve.

The Michigan Court of appeals then remanded the case back to the trial court because the landscape of the Michigan Medical Marijuana Act has changed so much with the recent Michigan Supreme Court decision in People v. King the attorney’s deserve an to present proper proofs as to the elements of the section 8 affirmative defense.

The important aspect of this ruling is that it further affirms the idea that the trial court must not resolve factual disputes regarding the Michigan Medical Marijuana Act’s Section 8 affirmative defense: if a factual dispute exists it should be resolved by the jury not the judge.

At Rudoi Law we are expert Medical Marijuana attorneys and understand all of the current ruling that involve Medical Marijuana. We are prepared to fight in order to help you receive the best possible outcome in your case.

People v. Brown: Police are Not Required to Check if a Person Is a Registered Medical Marijuana Patient or Caregiver for the Search Warrant Affidavit

September 17, 2012

David Rudoi Esq.

On August 28, 2012 the Michigan Court of Appeals issued its opinion in People v. Brown. The Case involved the issue of whether the police are required to investigate whether a person is a registered qualified Michigan Medical Marihuana Patient or Caregiver when investigating to build probable cause for a search warrant. A prior Michigan Appeals Court ruling in People v. Keller stated that evidence of marijuana discovered in a trash pull was sufficient probable cause of illegal activity for a magistrate to issue a search warrant on a home. Many Michigan medical marijuana attorneys have argued that the above rule from People v. Keller is not good law since the enactment of the Michigan Medical Marihuana Act because evidence of marijuana found in a trash pull is no longer necessarily evidence of criminal activity since the MMMA specifically allows registered patients and caregivers to possess and use marijuana.

The court in People v. Brown rejected this argument. The reasoning of the court was that the MMMA does not legalize possession of marijuana; rather the Michigan Medical Marihuana Act merely provides immunity from arrest, prosecution, and penalty in any manner. Focusing on this distinction the court found that evidence of marijuana is still sufficient evidence of illegal activity for a magistrate to issue a search warrant because it is still evidence of illegal activity even if the owner of the home may be immune from prosecution or arrest under the MMMA. Further the court in People v. Brown held that the Police are not even required to investigate to see if a person may be a registered medical marijuana patient or caregiver.

The Michigan Department of Licensing and Regulatory Affairs have issued 131,483 patient registrations for the Michigan Medical Marihuana Act. Evidence of marijuana would most likely be found if a trash pull was done in any one of these registered patients’ homes. Therefore, due the appeals court ruling in People v. Brown most registered medical marijuana patients and caregivers could be subject to having a search warrant executed on their home if the police are able to find evidence of marijuana in their trash.

This conclusion is completely ridiculous in this writer’s opinion. The court’s focus on the distinction between legality and immunity from prosecution is misguided. The point is that the MMMA specifically authorizes registered medical marijuana patients and caregivers to possess, use, and in some cases manufacture marijuana. This protection of the MMMA should not open those registered medical marijuana patients and caregivers to an invasive search on their home simply because they are exercising their rights under the MMMA.

At Rudoi Law we are current on all medical marijuana statutes and case law. Rudoi Law can help you avoid searches of your home, call our hotline anytime for advice.

People v Kiel: Medical Marijuana Card is Prima Facie Evidence of Section 8 Defense’s Elements 1 and 3

David Rudoi Esq.

August 12, 2012

In The Case of People v Kiel the Michigan Court of Appeals ruled on July 17, 2012 that a Michigan Medical Marihuana Registry Identification Card Is prima facie evidence of the first and third elements of the section 8 affirmative defense. The Michigan Medical Marihuana Act has two distinct levels of protection for defendants to utilize. Section 4 provides for broad immunity from arrest and prosecution but only if many requirements are met. Section 8 provides for an affirmative defense, which means a defendant can still be arrested and prosecuted, but is entitled to dismissal of the charges if 3 elements are proven.

Section 8’s elements summarized are:

1. A physician’s recommendation that in the physician’s professional opinion and in the course of a bon fide physician patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana.

2. The defendant was in possession of an amount of marijuana that was less than reasonably necessary for the purpose of treatment of the patient’s medical condition.

3. The patient’s use of medical marijuana was only to treat and alleviate the patient’s serious or debilitating medical condition or symptoms associated with that condition.

The Court in People v Kiel reasoned that in granting a registry identification card (Medical Marijuana Card) the State Department of Licensing and Regulatory Affairs (LARA) was in effect certifying the first and third elements of the Section 8 affirmative defense. Thus, a person who has their medical marihuana card but fails to meet all of the requirements for the immunity of section 4 may still assert the section 8 affirmative defense and only have to provide evidence as to the second element in order to either gain dismissal of the charges or to have the defense presented to the jury.

At Rudoi Law we understand how to use all the current case law to your advantage when defending you in a medical marijuana related case.

John Ter Beek v City of Wyoming: The MMMA Preempts City Ordinances That Prohibit Medical Manufacture and Use of Marijuana

David Rudoi Esq.

August 6, 2012

On July 31st, 2012 the Michigan Court of Appeals in John Ter Beek v City of Wyoming ruled that zoning ordinances which conflict with the Michigan Medical Marihuana Act are void and unenforceable. The City of Wyoming amended its city code and enacted a zoning ordinance which provides: “[u]ses not expressly permitted under this article are prohibited in all districts. Uses that are contrary to federal law, state law, or local ordinance are prohibited.” The City of Wyoming admits that the purpose of the ordinance “is to regulate the growth, cultivation and distribution of medical marihuana in the City of Wyoming by reference to the federal prohibitions regarding manufacturing and distribution of marijuana.” Basically, the City of Wyoming was attempting to penalize all medical marihuana growth, manufacture, distribution, and use by saying that you may not violate federal law in the city.

However, John Ter Beek decided to sue the City of Wyoming under the belief that that ordinance should be voided, due to its conflict with the Michigan Medical Marihuana Act. The controlling precedent is that any ordinance that purports to prohibit what a state statute permits is void. Therefore, the Michigan Court of Appeals ruled that The City of Wyoming ordinance was attempting to prohibit what the Michigan Medical Marihuana Act permits and is thus void and unenforceable. This leads to the conclusion that all city ordinances across the state that attempt to prohibit anything that the Michigan Medical Marihuana Act permits are void as well.

The City of Wyoming also argued that the Michigan Medical Marihuana Act is what should be void because it directly conflicts with the Federal Controlled Substances Act. There is the Supremacy Clause in the U.S. Constitution that basically states that any state law that is in direct conflict with a federal law is void. However, the Michigan Court of Appeals rejected this argument by looking at the intentions of congress when enacting the Controlled Substances Act. The Medical Use permitted by the Michigan Medical Marihuana Act is not mandatory, and it is thus not impossible to comply with both the Michigan Medical Marihuana Act and the Federal Controlled Substances Act. Therefore, the Michigan Medical Marihuana Act and the Federal Controlled Substances Act are not in direct conflict and the MMMA is thus not preempted by the federal CSA.

All uses of marijuana are still illegal under the Federal Controlled Substances Act. However, the Federal government cannot force the states to enforce federal law. Remember, the federal authorities can still arrest and prosecute medical marihuana users in federal court. However, in the State of Michigan any city ordinance which purports to prohibit any use of medical marihuana that is permitted by the MMMA is unenforceable.

At Rudoi Law we understand all of the case precedent regarding Medical Marijuana, and are fully prepared to help any citizen that is wrongly penalized for their proper medical marihuana use.

Michigan medical marijuana card

People v. Nicholson: Must Have Actually Possession of Your Card at the Time of Arrest, or at the Time of Prosecution

The Case of People v. Nicholson was decided by the Michigan Court of Appeals on June 26, 2012. The case dealt with a situation where the Defendant was a passenger in a parked car while in possession of one ounce of marijuana. Defendant had not been issued his registry identification card but did have a copy of his registry identification application which is deemed to act as a valid registry identification card under section 9(b) of the Michigan Medical Marihuana Act. However, Defendant’s copy of his registry identification card application was at his home and not in his possession at the time of the arrest.

The circuit court ruled that Defendant needed to have the copy of his registry identification card application at the time of the incident in order to receive any immunity from section 4 of the Michigan Medical Marihuana Act. The Michigan Court of Appeals reversed this decision and looked to the language of the statute to form the rule. The statute states:

“Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner…”

The Michigan court of appeals interpreted the above language to mean that a person is immune from arrest if they are in actual possession of their registry identification card at the time of arrest, however, if a person is not in actual possession of their registry identification at the time of arrest they are not immune and may be arrested. On the other hand, that same person can show up to court (the time of prosecution) and be immune from prosecution if they are in actual possession of their registry identification card at that time.

Thus, a person may be immune from arrest if they are in actual possession of their registry
identification card at the time of arrest, a person can be immune from prosecution if they are in actual possession of their registry identification card at the time of prosecution. However, the Michigan Court of Appeals still left a bit of ambiguity in its opinion. For example: what if a person is arrested and then applies for their registry identification card? If they show up at their first court date with a registry identification card or the equivalent copy of an application, many interpret that People v. Nicholson rules that they are immune from prosecution even though they hadn’t even applied for their registry card at the time of the incident.

At Rudoi Law we understand how to properly argue case law to benefit your specific factual circumstances in order to protect your rights and freedoms. Although the law may still seem unclear we can guide you with all the information that is available and inform you of how courts are likely to rule on certain issues. If you have further questions regarding the ruling in People v. Nicholson feel free to call our offices anytime.

michigan marijuana law

Michigan Supreme Court Reverses People v. King- Huge Win For Medical Marijuana Community

May 31st 2012

David Rudoi Esq.

In a Unanimous decision, the Michigan Supreme Court reversed the ruling of the Michigan Court of Appeals in People v. King. This is a huge win for the medical marihuana community across Michigan. In People v. King the Michigan Court of Appeals ruled that the Section 8 Affirmative Defense contained in the Michigan Medical Marihuana Act was only available to a defendant that satisfied the requirements of Section 4 of the Act. For example, it was ruled in People v. Anderson (based on the Court of Appeals ruling in People v. King) that if a defendant could not show that his marijuana plants were kept in an enclosed and locked facility than he could not assert the Section 8 Affirmative Defense.

Prosecutors have been using The Court of Appeals decision in People v. King and its progeny to keep the words “Medical Marijuana” from even being used at trial in any way. That’s right, prosecutors have been successfully arguing that if a defendant failed to lock the door to his growing facility than he can not mention medical marihuana, or marijuana being used for medical purposes in any way during his trial even if he was operating in conformity with the Michigan Medical Marihuana Act in every other way.

The Michigan Supreme Court has reversed this precedent by ruling that Section 8 is not connected to Section 4. Section 4 simply provides broader protection from arrest and prosecution if certain requirements are met while Section 8 has fewer and different requirements but is only an affirmative defense to be asserted at an evidentiary hearing or at trial. Section 8 does not protect a defendant from arrest and prosecution.

Furthermore, the Ruling in People v. King means that one does not have to be a Registered Michigan Medical Marihuana Patient to assert the Affirmative Defense contained in Section 8. You must still have a doctor recommendation to use medical marijuana before the date of the arrest and after the enactment of the Michigan Medical Marihuana Act. However, there are some negative aspects to the Michigan Supreme Court’s ruling in People v. King. The Affirmative defense must be asserted in a pre-trial evidentiary hearing first, then that judge can either dismiss the case, state that there are questions of fact for a jury to rule on during trail, or state that no jury could find the elements of the Affirmative Defense exist and thus that the Affirmative defense cannot be asserted at trial in front of the jury at all.

Overall, this was a huge win for us in the medical marijuana community. At Rudoi Law we are up to date on all rulings concering medical marijuana issues and no how to use these ruling to properly advise and protect our clients.

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People v. Danto: Strict Compliance with the Michigan Medical Marihuana Act Section 4 to bring a Medicinal Marijuana Defense under Section 8

The case of People v. Danto involved the Section 8 defense under the Michigan Medical Marihuana Act (MMMA) and whether the prosecution can preclude the medicinal marijuana defense to even be presented for a jury. Recall, under the MMMA Section 4 the patient or caregiver must keep 12 or fewer marijuana plants (per registered qualified patient) in an enclosed, locked facility.

In People v. Danto, the defendants kept marijuana in various locations throughout their home, including the bathroom, living room, kitchen, bedrooms, and basement with no door at the entrance. Clearly, this was not in compliance with the “enclosed, locked facility” requirement of the MMMA. What People v. Danto held is that if the grower of marijuana has failed to keep the plants in an “enclosed, locked facility” or is indisputably over the limit of marijuana prescribed by the MMMA, the medicinal marijuana defense is precluded and cannot be used at trial (the jury will not be able to hear why the marijuana was in the defendant’s possession, as legitimate as his reasons may be). Therefore, strict compliance with MMMA Section 4 is required or the defendant will not be able to use Section 8 as a defense.

Prosecutors across the state have been successfully presenting motions to preclude the Section 8 Medical Marihuana Defense based on the ruling in People v. Danto. Thus, this Michigan Appeals Court ruling has been very detrimental to the medical marijuana community because it prevents medical marijuana patients and caregivers from asserting the Section 8 Medical Marihuana defense at trial if the court determines that the defendant was in any way out of compliance with Section 4 of the MMMA. At Rudoi Law we understand and have experience in fighting motions to preclude the Medical Marihuana Defense, which is imperative in any medical marijuana case.