Ann Arbor Criminal Defense Blog
In the cases of People v. Kolanek, King the Michigan Supreme Court decided several important issues regarding the Michigan Medical Marihuana Act in a win for medical marijuana users and advocates.
The Court ruled that a defendant asserting the Section 8 defense is not required to establish the requirements of Section 4. The defendant may raise the Section 8 defense at trial after losing on a pre-trial motion. Also, in asserting the Section 8 defense the defendant must show that the physician’s statement was made after enactment of the MMMA but before the commission of the offense.
The MMMA permits qualifying patients to possess and use marijuana for debilitating medical conditions and for caregivers to grow and provide marijuana for up to five patients. A limited exception in the law is created for these activities, not a general right.
There are two sections of the Michigan Medical Marihuana Act that were at issue in these cases.
Section 4 of the Act grants immunity from criminal prosecution and civil penalties to patients and caregivers who possess a registry card issued by the Michigan Department of Community Health, does not possess over the permitted amount of marijuana, and keeps the marijuana plants in an enclosed, locked facility. Individuals meeting these requirements are presumed to be engaged in the medical use of marijuana and are entitled to the broad immunity provided by the Act.
Section 8 of the Act provides for an affirmative defense to marijuana-related charges to persons generally. The elements of the defense are that patient and the patient’s caregiver were engaged in the medical use of marijuana, the patient has received a physician’s statement recommending the medical use of marijuana, and that the amount of marijuana in possession was no more than was reasonably necessary to treat the patient’s medical condition.
In People v. King, the Supreme Court addressed the issue of whether a defendant must establish the requirements of Section 4 of the MMMA in order to assert the Section 8 defense.
Defendant King was charged with manufacturing marijuana. During searches of his home and backyard, police found marijuana plants in several places that could not be considered enclosed, locked facilities, such as an unlocked closet and a dog kennel in the backyard that was open on top and not anchored to the ground.
King asserted the Section 8 defense in district court and was denied. King against asserted the Section 8 defense in Circuit Court. The Circuit Court found that King had complied with the requirements of Section 4 and therefore was entitled to the presumption that he was engaged in the medical use of marijuana from the Section 8 defense.
The Court of Appeals disagreed, finding that since King did not keep the marijuana in an enclosed, locked facility, he was not in compliance with Section 4, and thus could not assert the Section 8 defense.
The case then proceeded to the Supreme Court on the issue of whether a defendant must meet establish the requirements of Section 4 in order to assert the Section 8 defense.
In People v. Kolanek, the Supreme Court took up two issues.
First, whether a defendant must have obtained the required physician’s statement after the date of enactment of the MMMA but before the date of defendant’s offense. And second, whether a defendant may assert the affirmative defense of Section 8 at trial after a court has denied the defendant’s motion to dismiss.
In People v. Kolanek, defendant Kolanek was arrested and charged with possession of marijuana. At the time of arrest, Kolanek did not have a registry identification card, but claims that five months prior to arrest his physician recommended medical marijuana. Six days after his arrest Kolanek received authorization from his physician to use marijuana for pain and nausea caused by Lyme disease. The Michigan Department of Community Health issued Kolanek a registry card two weeks later.
Kolanek asserted the Section 8 defense in district court. The district court denied his motion, reasoning that the MMMA requires a physician’s statement prior to the date of an offense. Kolanek had not received the physician’s statement until after his arrest. The Circuit Court on appeal disagreed, stating that a physician’s statement coming at any time is valid to raise the defense.
The Court of Appeals agreed with the district court ruling and sent the case back down, with a further instruction that Kolanek was still eligible to assert the Section 8 defense at trial, even though he had lost in a pre-trial motion.
The case then went up to the Supreme Court on whether a physician’s statement must come prior to a defendant raising the Section 8 defense and whether a defendant may still assert the defense at trial despite losing on a pre-trial motion.
The Supreme Court consolidated the two cases as there were two closely related issues.
At the Supreme Court, the Prosecution argued that the language of Section 8 incorporates the requirements of Section 4 so that a defendant must show that he was not in possession of more than the permitted amount and that it was kept in an enclosed, locked facility. However, the prosecution conceded that a defendant need not be in possession of a registry card in order to assert the Section 8 defense.
The Court pointed out that no language in Section 8 requires compliance with Section 4. The two sections require distinct evidentiary showings and also provide distinct protections for the defendant. Moreover, that a defendant would need to show some but not all of the requirements of Section 4, as the Prosecution argued is logically inconsistent.
The Prosecution also argued that without compliance with the stricter Section 4 requirements, individuals asserting the Section 8 defense would be permitted to greater liberties with marijuana, such as keeping more than the permitted amount and not keeping the marijuana in an enclosed, locked facility. The Court disagreed with this argument, stating the Section 4 is intended to encourage individuals to comply with the state registration process in order to obtain the broad immunity provided by the MMMA. The affirmative defense provided is a lower level of protection.
The Court therefore held that a defendant asserting the Section 8 defense is not required to establish the requirements of Section 4.
As to the timing of the physician’s statement, the Court held that the MMMA does not apply retroactively. Therefore, pre-MMMA physician’s statement do not count.
Moreover, a defendant must show that a physician’s statement was be made before the commission of an offense. Requiring a person to obtain a physician’s statement recommending marijuana prior to medical use is consistent with the purpose of the MMMA. To hold otherwise would allow individuals charged with crimes to obtain a get-out-of-jail card after the fact.
The Court also held that a defendant may assert the Section 8 defense at trial after losing in a Section 8 pre-trial motion. Section 8 provides that the defense may be raised in a pre-trial motion and the charges shall be dismissed following a hearing where the defendant shows all of the elements listed in the Section. The Section 8 defense cannot be raised for the first time at trial.
The answer to this issue comes from the structure of criminal procedure.
Where there are no questions of material fact as to the Section 8 elements then the defendant is entitled to a dismissal. If the defendant has shown the elements of Section 8 but questions of fact exist then the issue must go to a jury. Where the defendant has not shown that the elements of Section 8 exist then the court will not allow the jury to hear the defense.
Therefore, there are instances where the Section 8 defense will be taken to the jury after losing in a pre-trial motion.
In the end, Kolanek was not permitted to take the Section 8 defense to the jury as he had not presented sufficient evidence for this defense in his pre-trial motion. For King, he was allowed to take his case back to Circuit Court to have an evidentiary hearing on the Section 8 defense motion.
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