Michigan Medical Marihuana Act - Section 8 (Affirmative Defense) Outlined [MMMA] - Michigan Marihuana Lawyer, Josh Jones

The Section 8 [Affirmative Defense] Briefly Outlined

The Michigan Supreme Court in People v King determined what an individual must do in order to be considered a “patient” within the language of the Michigan Medical Marihuana Act (MMMA). It explained that “patients” must obtain a doctor’s statement indicating a medical need for marihuana prior to the commission of any potential criminal act. A written statement or “certification” may be more appropriate due to the required evidentiary hearing that is attached to criminal charges. It seems the outcome of the evidentiary hearing will be based upon the reasonableness of the activity and as compared to the other requirements indicated in Section 8 of the MMMA. See MCLA § 333.16428.

Once the patient has obtained a statement or “certification” from a doctor he or she may use a “reasonably necessary quantity of marihuana ” The Court did not elaborate on “reasonably necessary.” But in essence, a “patient” should be allowed to hold at least 2.5 ounces of marihuana (the amount indicated in Section 4). See MCLA § 333.26424.

It seems that the Court interpreted the Act clearly in a fashion that it was intended, which consisted of a variation in the term “patient.” You have those patients that will want to be somewhat immune from criminal exposure, if that person adheres to the strict requirements of Section 4 of the MMMA. You will also have those patients that do not want to register or become “qualified patients.” In the end, the MMMA allows for multiple defenses involving a “patient’s” marihuana and medical uses of such marihuana. 

Consult your attorney to discuss the potential exposure to criminal prosecution and the stages of prosecution in order to make an informed decision about any and all questions regarding the MMMA. 

People v King - Michigan Medical Marihuana Act - Patient Defenses - Michigan Marihuana Lawyer, Josh Jones

People v King - The Two Defenses For Patients

The Supreme Court in People v King provided a great deal of guidance when looking at the Michigan Medical Marihuana Act (MMMA), at least when it comes to those who possess and do not possess registry identification cards. In the end, the Court held that the MMMA has two classifications for marijuana “patients” in the State of Michigan.

The first rests within Section 4, which contains strict requirements and provides immunity against arrests, charges, and prosecution. The second rests within Section 8, which allows for registered and non-registered patients to qualify for an affirmative defense, but an evidentiary hearing will likely be held to determine if the individual has met the requirements set forth within the section. It should be noted that Section 8 indicates a presumption of compliance if the three “elements” are met. See MCLA § 333.26428. Therefore, Section 8 allows for a defense for those who do not satisfy Section 4 of the MMMA, yet subjects the individual to potential criminal prosecution and/or conviction.

Section 4 is differentiated from Section 8 because it refers to “qualifying patient” or “caregiver,” while Section 8 simply states “patient” or “patient’s caregiver.” Section 4 indicates qualifying patients and primary caregivers “who have been issued and possess a registry identification card shall not be subject to arrest, prosecution or penalty in any manner . . . for the medical use of marihuana in accordance with this act.” MCLA § 333.26424(a-b).

Further, the qualified patient and primary caregiver (if attempting to comply with Section 4) must not possess more than 2.5 ounces of “usable marihuana” nor have more than 12 marijuana plants kept in an “enclosed locked facility.” Remember, a qualified patient is allowed to possess 12 marihuana plants as an individual and a primary caregiver is allowed to possess 12 marihuana plants for each of the “qualifying patients to whom he or she is connected through the department’s registration process.” But remember, Section 7 also applies to Section 4, which limits activities involving medical marijuana in certain circumstances.

Therefore, registered patients and caregivers will not have to worry about prosecution if they follow the strict requirements set forth in Section 4, which includes those activities involving other registered and connected patients and caregivers. If the individual does not satisfy all the requirements within Section 4, he or she may qualify for a Section 8 defense. A Section 8 defense does not provide immunity from prosecution.

The Michigan Supreme Court has established two thresholds that police officers and prosecutors must overcome before prosecuting “patients” within the MMMA. Patients, registered and non-registered, now maintain two avenues of redress when facing alleged criminal prosecution within the State of Michigan.

PLEASE DO NOT RELY upon any of the information contained in this article when trying to represent yourself. You should always consult with an attorney before relying upon any written advice, article, blog etc.