The Michigan Supreme Court succinctly outlined the requirements for the two distinct defenses under the Michigan Medical Marijuana Act at Sections 4 and 8 in People v Kolanek, 491 Mich 382, 402 (2012).

1.         Section 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26424, provides qualified registered patients broad immunity from “arrest, prosecution, or penalty in any manner” and protection from the denial of “any right or privilege, including but not limited to civil penalty or  disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act….”

2.         To be entitled to the broad immunity of § 4, a qualifying patient with a registry identification card who has not specified a primary caregiver must possess no more than 2.5 ounces of usable marijuana and 12 marijuana plants, which must be kept in “an enclosed, locked facility.”

3.         Registered patients who do not qualify for immunity under § 4, as well as unregistered persons, are entitled to assert in a criminal prosecution the affirmative defense of medical use of marijuana under § 8 of the MMMA, MCL 333.26428.

4.         Section 8 of the MMMA provides a limited protection for the use of medical marijuana in criminal prosecutions, which requires dismissal of the charges if all the elements of the defense are established.

5.         A defendant need not establish the elements of § 4 to have a valid affirmative defense under § 8.

6.         A defendant who moves for the dismissal of criminal charges under § 8 must raise the defense in a pretrial motion to dismiss and for an evidentiary hearing.

7.         A defendant is entitled to the dismissal of criminal charges under § 8 if, at the evidentiary hearing, the defendant establishes all the elements of the § 8 affirmative defense, which are (1) “[a] physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana,” (2) the defendant did not possess an amount of marijuana that was more than “reasonably necessary for this purpose,” and (3) the defendant’s use was “to treat or alleviate the patient’s serious or debilitating medical condition or symptoms….” As long as a defendant can establish these elements, no question of fact exists regarding these elements, and none of the circumstances in § 7(b), MCL 333.26427(b), exists, then the defendant is entitled to dismissal of the criminal charges.

8.         With regard to the physician’s statement required by § 8(a)(1), the defendant must have obtained the physician’s statement after enactment of the MMMA, but before the commission of the offense.

9.         If a defendant moves for dismissal of criminal charges under § 8 and at the evidentiary hearing establishes prima facie evidence of all the elements of the § 8 affirmative defense, but material questions of fact exist, then dismissal of the charges is not appropriate and the defense must be submitted to the jury.

10.       If a defendant moves for dismissal of criminal charges under § 8 and at the evidentiary hearing fails to present evidence from which a reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense, and there are no questions of fact, then the circuit court must deny the motion to dismiss the charges. In this instance, the defendant is not permitted to present the § 8 defense to the jury. Rather, the defendant’s remedy is to apply for interlocutory leave to appeal.


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