In a decision issued on November 19, 2013, the Michigan Court of Appeals laid down a strict and onerous burden for a caregiver to assert defenses under the Michigan Medical Marijuana Act.


In People v Hartwick, a caregiver was charged with felonies for illegally growing and possessing marijuana.  In the trial court, the defendant/caregiver moved for dismissal of the charges under either Section 4 of the MMMA or under Section 8, or alternatively argued that he was entitled to a jury instruction on the Section 8 defense.


The caregiver essentially argued that, since all of his patient’s were registered with valid registry identification issued by the State of Michigan, then he was entitled to dismissal or the defenses under the MMMA.   Oakland County Circuit Court judge Hon. Colleen O’Brien denied the motions because she held that the registry cards were not enough — the caregiver had to actually prove with evidence at a hearing all of the elements of the patients’ needs for medical marijuana.


The Court of Appeals agreed.  If you are a caregiver, then you must read this opinion, because once again, the prosecutors, court systems, and cops, cannot stand the idea that the money-machine called the war on drugs is probably coming to an end, and they intend to make it as difficult as possible for anyone who uses medical marijuana.


The Court of Appeals held that the caregiver had to prove with evidence at a hearing the following facts about each and every patient for a caregiver Section 4 defense: 1) the patient still needed the marijuana, 2) the medical condition of the patient qualifying for marijuana treatment, 3) the actual amount of medical marijuana required for each patient, 4) how long the patients’ treatment should continue, and 5) the identity of the patient’s physicians.


Moreover, under Section 8, the caregiver had to prove with evidence at a hearing the following facts about each and every patient for a caregiver Section 8 defense: 1) the patient had an ongoing relationship with the doctor, 2) the actual amount of marijuana reasonably necessary for the patient, and 3) the marijuana was actually being used to treat a valid condition under the MMMA.


So the court’s holding effectively suggests that the legislature’s process for registering and licensing medical marijuana patients and caregivers is basically worthless and a sham.


The court decided to make it as difficult as possible to assert defenses under the MMMA.  One of the complaints by alcohol-consuming, bedroom watching, and anti-libertarian opponents of ending the failed war on drugs, is that the medical qualification process for obtaining medical marijuana eligibility is generally a sham, in that a relatively few doctors meet with patients whom they normally do not treat, perform a perfunctory examination in return for a small fee, and then do not provide continuous monitoring and care as related to the condition which qualified the patient for medical marijuana.   Although there does appear to be a “mill” mentality for qualification of MMMA patients, the fact is that medical doctors licensed by the State of Michigan are prescribing medication based upon the presentation and examination of their patients.  Now, the court of appeals wants to make sure that this private relationship can be fully explored at an evidentiary hearing.


If you are a medical marijuana patient and do not see your MMMA prescribing doctor more than once a year, then that leaves you wide open to prosecution.  If you are a caregiver, and you have not determined your patient’s doctor’s name, the amount of marijuana prescribed by that doctor, or that your patient  goes to the MMMA doctor more than once a year, then you are also wide open to prosecution.


The prosecutors, courts, probation agents, prison officials, and plethora of private companies that have made billions trying to enforce anti-marijuana laws (as they suck down their cocktails) are not going to disappear easily.  They make way too much money.   However, until sanity and public policy coincide, the Hartwick case requires that patients and caregivers be diligent in making sure that prescribing doctor gives continuous or regular treatment and evaluation for the medical marijuana use, and with specific instructions on exactly how much marijuana the patient should be using.

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