In the case PEOPLE OF MI V RICHARD LEE HARTWICK COA Case Number: 312308and MSC Case Number: 148444
The CoA decision that rejected the defendant’s specific arguments
that his possession of a registry identification card automatically immunized
him from prosecution under § 4 and grants him a complete defense under § 8, is
in error. They rejected these arguments because they assert that the argument
ignores the primary purpose and plain language of the MMMA, which is to ensure
that any marijuana production and use permitted by the statute is medical in
nature, and used only for treating a patient’s debilitating medical condition.
Their argument that it is the caregiver’s responsibility to
know the patients debilitating medical condition, the dosages of the drug, and
the amount of time the patient needs to continue taking the drug in order to
insure that his patient's use of the marijuana is medical in nature, is in
error.
The caregiver is only entitled to the information his
patient wants him to have. Unless the
caregiver’s patient expressly allows him (the caregiver) to divulge any
information known about the patient, he is forbidden by law to do so. Requiring
the caregiver to have the information and to divulge it goes against the will
of the people who voted to keep the information confidential.
Sec. 6. (b) States that applications and supporting
information submitted by qualifying patients, including information regarding
their primary caregivers and physicians, are confidential. This includes
information given to the caregiver.
Although prudent for the patient to discuss their underlying
medical condition with the caregiver, they need not do so. They may simply tell
them how much marijuana they require.
Patients need not identify to the caregiver the identity of
their physician, in addition, the caregiver need not disclose the identity of
his patients. In fact, the caregiver would be in violation of Sec. 6. (b), the
confidentiality rules of the law, and
subject to prosecution, Sect. 6 (4) states that a person, including an
employee, contractor, or official of the department or another state agency or
local unit of government, who discloses confidential information in violation
of this act is guilty of a misdemeanor, punishable by imprisonment for not more
than 6 months, or a fine of not more than $1,000.00, or both." By asking
the caregiver to divulge information about their patients, or their patient’s
physician, the prosecution is asking them to break the very law they are
already being accused of breaking.
The Physician Attestation form signed by the physician
specifies that the physician attests that the information entered on the
certification is true and accurate. The physician attests that they are in
compliance with the Michigan Medical Marihuana Act, Administrative Rules, and
all amendments.
This all-encompassing statement assures that any definition
the prosecution or the courts could derive from the language of the act, is
already attested to by the physician. LARA’s inclusion of the preceding
statement, and their subsequent approval and issuance of identity cards,
indicates that the agency has investigated and concluded that the statement is
indeed factual.
All the caregiver can and need do is accept LARA’s
findings. If the courts wish to
challenge the validity of the information, they must do so with LARA, not the
caregiver, the caregiver’s patient, or the patient’s physician. By law, it is
up to LARA to conduct any investigating, not the caregiver.
On LARA's Physician Certification Form, the physician also
attests that they have completed a full assessment of the patient’s medical
history and current medical condition, including a relevant, in-person, medical
evaluation. Further, they attest that in their professional opinion, the
patient is likely to receive therapeutic or palliative benefit from the medical
use of marihuana to treat or alleviate the patient’s debilitating medical
condition or symptoms associated with the debilitating medical condition.
This statement is redundant. That same language is included
within the language of the act, and as the physician has already attested that
they are in compliance with the Michigan Medical Marihuana Act, Administrative
Rules, and all amendments, they have twice stated it.
By issuing the patient's card, all medical references, or
references construed to be medical, are therefore deemed to be understood and
being complied with by the physician.
Issuance of a card by LARA trumps any argument that may be
derived from the language and subsequent interpretation of said language by the
prosecution, the courts, or by anyone else.
Since a failure by the physician to sign this form would
result in LARA denying both the patient’s application, as well as the
caregiver’s issuance of a registry card,
the caregiver accepts that LARA has conducted an investigation verifying
the truth of the statement, as the law requires.
It follows that any question regarding the validity of a
patient’s medical use of marijuana is confirmed. LARA role as the agency
mandated to manage the implementation of the MMMA, constitutes the final word.
The defense’s argument that his possession of a registry identification card
automatically immunizes him from prosecution under § 4 and grants him a
complete defense under § 8, is therefore valid.
All reference to dosages could be considered if the doctor
were issuing a prescription, but the same Physician Attestation form clearly
states that this is not a prescription. The physician attests that in their
professional opinion, the patient is likely to receive therapeutic or
palliative benefit from the medical use of marihuana. The key word here is
opinion.
Information regarding the amounts of medical marijuana that
the patient is to use, if such was discussed with the patient, is between the
patient and their physician. The caregiver has no choice but to rely on the
word of the patient as to how much medical marijuana the patient will need.
It should be noted that marijuana has been used for
thousands of years. It is deemed by researchers all over the globe as being
largely nontoxic. A lethal dosage of marijuana is virtually impossible to
consume.
Telling a patient to "take increasing quantities of
marijuana until you feel better." would not be a bad way to establish
dosage for virtually all patients.
The prosecution’s stance that the defendant was unfamiliar
with the health background of his patients, and could not identify the maladies
or “debilitating conditions” suffered by two of his patients, and that he was
not aware of how much marijuana any of his patients were supposed to use to
treat their respective conditions, or for how long his patients were supposed
to use “medical marijuana.” Is again, a
non-issue. The caregiver is again immune from supplying said information due to
the confidentiality of said information.
Further, by the same reasoning, their assertion that the
defendant’s inability to name each patient’s certifying physician constitutes a
violation, is also a non-issue.
It is unclear whether the prosecution's demand that
witness's divulge confidential information, constitutes a violation of the law
in itself. This determination is for the courts to decide.
The prosecution cited the plant count as being a factor in
denying a dismissal under section 4. The
defendant denied having the 77 plants that the police stated they counted. He
stated that a number of the plants that were counted had already been cut down.
They were no longer growing plants. This makes them a combination of usable
marijuana, once dried, and plant matter such as stalks.
Sec. 4. (a) states in part that in addition to the 12 plants
allowed. "Any incidental amount of seeds, stalks, and unusable roots shall
also be allowed under state law and shall not be included in this (total plant
count) amount". Therefore these plants are exempt from the count, and the
caregivers stated count of 71 plants should have allowed for a dismissal under
section 4.
In addition, the count could be seen as irrelevant. Section
8 (2) states that the patient and the patient's primary caregiver, if any, may
be collectively in possession of a quantity of marihuana that was not more than
was reasonably necessary to ensure the uninterrupted availability of marihuana
for the purpose of treating or alleviating the patient's serious or
debilitating medical condition or symptoms of the patient's serious or
debilitating medical condition.
As with any plant, yields differ with the particular strain
of the plant. Some strains have a higher yield, some a lower yield.
A reasonable person may conclude that Section 8 (2) provides
relief from the restrictions of complying with the 12 plant limit that the act
suggests for each qualifying patient. It could be necessary to grow more than
the 12 plants to assure an uninterrupted availability of marihuana for the
purpose of treating or alleviating the patient's serious or debilitating
medical condition or symptoms of the patient's serious or debilitating medical
condition.
As with any crop, it is difficult to predetermine yield, and
it would be prudent to plant more and have an overage, than to plant less, and
be unable to assure an uninterrupted availability.
Having a surplus should not be an issue as the surplus could
be either destroyed, or donated to the needy.
71 or 77 plants may seem like a lot, but the growing of a
plant from start to harvest can take as long as eight months, perhaps longer.
Much depends on the particular strain of the marijuana. The inclusion of the
language "reasonably necessary quantity", appears to address this
issue.
This case is the quintessential MMMA case. No major
violation was cited. The defendant was not selling marijuana to children, nor
was he growing thousands of plants. This a case where an ordinary citizen was
attempting to alleviate his own pain, and the pain of his patients.
Sec. 6 (g) Possession of, or application for, a registry
identification card shall not constitute probable cause or reasonable
suspicion, nor shall it be used to support the search of the person or property
of the person possessing or applying for the registry identification card, or
otherwise subject the person or property of the person to inspection by any
local, county or state governmental agency.
The moment Medical Marijuana was brought up, and the
defendant was able to provide documentation, he should have been left alone.
The State has introduced no evidence that there was probable
cause to move the detective to try and gain entry into the defendant's home.
They showed no evidence that would suggest anything suspicious was happening.
"a registry identification card shall not constitute probable cause or
reasonable suspicion" Why did the detective even try and gain entry?
The defendant was acting within the scope and the spirit of
the MMMA. He had an enclosed locked facility. Although not locked when the
police came in, there was no evidence that the plants were in danger of being
accessed by persons other than the caregiver.The house itself was locked and
needed to be unlocked to allow entry by the police. That should suffice.
The defendant had the requisite number of plants. The
question of plants "not growing" (cut down) has been addressed by the
statute as not being allowed in the count. Detective Ferguson should have known
that. The defendant had all the documentation to support his grow operation.
There was no need to ask to see the defendant's grow once that was established.
If this defendant is denied the dismissal he deserves, then
you might as well tell every patient and caregiver in the State of Michigan
that their cries for relief are going to be denied by a deaf government who
just plain dislikes this law, and will punish and imprison anyone who tries to
act under it.
Just as a motorist caught speeding cannot claim ignorance of
the law as a defense, there is no question that the courts assume he knows the
law, then the reverse must also apply. The court cannot claim a person was
ignorant of this law as a means of prosecuting them.
Everything the defendant was asked to produce at the scene
was produced. Was the door locked? Perhaps not, but with everything else in
order, there was no cause to arrest this person.
As ignorance of the law by a defendant is no excuse, it
should hold that no excuse should be allowed because a police officer did not
know the difference between a plant that should be counted, and those that
should not.
It is my belief that the trial court, and subsequently the
CoA, erred in their decision to deny, first, a dismissal under section 4, or in
absence of that, the right of the defendant to present an affirmative defense
under section 8
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