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People v. Argo: Remedy For Denial Of Defendant’s Right to Raise Section 8 Defense

February 1, 2013 Criminal Law and Procedure

In People v. Agro, defendant Agro, a qualifying patient under the Michigan Medical Marihuana Act was found with 17 marijuana plants in her basement. She was charged and convicted of manufacturing marijuana and sentenced to 90 days probation.

Agro brought a pre-trial motion under Sections 4 and 8 under the MMMA to dismiss.  Following an evidentiary hearing, the trial court ruled that Agro could not meet the Section 4 requirements in order to gain immunity from prosecution.

Section 4 of the MMMA grants qualifying patients and registered caregivers immunity from arrest and prosecution where a person has been issued and possesses a registry identification card, and has no more than the specified amount of marijuana kept in an enclosed, locked facility.

Specifically, the trial court ruled that the defendant’s home in which the lower level held a growing operation, did not constitute an enclosed, locked facility.

Following that ruling, the trial court held that, per a previous Court of Appeals ruling the defendant could not assert the Section 8 defense because she did not meet the requirements of Section 4.

Section 8 is an affirmative defense that can be raised where the defendant meets three requirements. The defendant must show a physician statement that the defendant could benefit from the use of marijuana, the defendant did not possess an amount of marijuana that was more than reasonably necessary to receive that benefit, and that defendant’s use was to treat a debilitating medical condition.

Between the time of the trial court’s ruling and the appeal the law on the Section 8 affirmative defense underwent a change. The Supreme Court in People v. Kolanek held that a defendant need not meet the requirements of Section 4 in order to raise the affirmative defense of Section 8.

At issue on appeal then is the proper remedy for the trial court’s denial of Agro’s ability to assert the Section 8 defense.

The Court of Appeals concluded that a continued evidentiary hearing for the Section 8 defense is required. At the hearing, the trial court must determine whether there are questions of fact related to the defendants’ Section 8 affirmative defense.

The rest of the procedure in this case will go as follows. If no material questions of fact exist and the defendant establishes the requirements of Section 8 then the trial court must dismiss. If questions of fact exist then the defendant will have to raise the Section 8 defense in trial. If, however, no questions of fact exist and the defendant fails to establish the section 8 requirements, then the trial court must rule that the defendant may not assert the defense at trial.

Though this case does not establish any new law, it does underscore the importance of compliance with Section 4. The defendant here did not meet the requirement of keeping the plants in an enclosed, locked facility.

Failure to comply with the Section 4 requirements will preclude individuals from the immunity granted by the MMMA and forces them to fall back on the lower level of protection found in Section 8.

Contact ArborYpsi Law at 734-883-9584 or at to speak with attorney Sam Bernstein

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