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LEGAL USER GUIDE TO THE MICHIGAN MEDICAL MARIJUANA ACT

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A Free Service of Attorney Gregory Carl Schmid, Author of original Personal Responsibility Amendment Voter Initiatives

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FREE LEGAL INFORMATION RESOURCES

QUALIFYING PATIENTS          

DOCTORS          

PRIMARY CARE GIVERS          

LAWYERS         

 

A FREE Service of Attorney Gregory Carl Schmid, Author of original Personal Responsibility Amendment Voter Initiatives

Keys to understanding the new Michigan Medical Marijuana Law

Basic Facts about the new Michigan Medical Marijuana Law, passed by voters on November 4, 2008:

  • The new law takes legal effect 10 days after the vote is canvassed, which OFFICIAL canvass is scheduled for November 24, 2008. Expect this law to take effect between the December 4, 2008.
  • The new law gives the Michigan Department of Health authority to issue special cards to qualified patients, and their primary caregivers, which make them immune from Michigan legal penalties for marijuana use that is for a legitimate medical purpose and done in accordance with various rules designed to prevent recreational drug abuse by persons who do not have or serve a legitimate medical need.
  • The Department of Community Health has 120 days from the effective date of the new law to establish rules and commence issuing Registry ID cards. That's sometime in late March 2009. After that time, if they do not implement the program, or if a card is not issued within a certain time after proper application to a person who applies and meets the qualifications, then the qualifying patient may  prepare an affidavit (notarized statement), which I have supplied in the Free Form Bank, and keep it on hand in lieu of a Registry Identification Card.
  • To get a registry ID card you must get a written certification from your own doctor. Doctors are the Gatekeepers. "Written certification" means a document signed by a physician, stating the patient's debilitating medical condition and stating that, in the physician's professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition.   
  • Registry ID cards are strictly confidential, and cannot be used as probable cause or to target you or your primary care giver. If the Department gives out your identifying information inappropriately, it is a crime.  
  • Your Registry ID card will designate whether you will grow your own plants (you can have 12 plants) or have a primary care giver (who can service up to five qualifying patients at a time and have 12 plants for each patient). If you designate a primary care giver, you cannot have your own plants. All plants must be kept in a very secure locked place. A primary caregiver must have a registry ID card too, and gets one automatically when you make the designation. 
  • If you are a registered qualifying patient you can pay the primary caregiver for the cost of providing the service, but not for the marijuana. Federal laws could still be enforced against you and your primary caregiver, but only by federal authorities.
  • If you are a qualified registered patient you can have two ounces of marijuana in your possession. A primary caretaker can have 2 ounces for each patient (up to 5 patients). 
  • If you are a registered qualifying user you cannot be arrested,prosecuted, or subject to forfieture of you property or your even your marijuana supply if you stick to the common sense rules, as follows:
  • Do not smoke marijuana in public or on any form of public transportation.
  • Do not use or possess marijuana on any school grounds pre and K-12 school grounds or in a correctional facility.
  • Do not drive anything at all under the influence.
  • Do not give or sell marijuana to anyone who is not a qualifying patient. 

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Citation of the law:  Cite as the Michigan Medical Marihuana Act

Law specifically authorizes medical use
:  
"The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act."
[Section 7 (a)]

Scope of the Act:
"Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.




Any State Laws Inconsistent with Act Do Not Apply to Medical Use: [Section 7(e)] "All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act."

 

Specific Medical Conditions listed in Statute
"Debilitating medical conditions":[Section 3 (a)1] Applies to these medical conditions and the treatment of the following conditions:    

  • Cancer 
  • Glaucoma
  • Positive status for human immunodeficiency virus
  • Acquired immune deficiency syndrome
  • Hepatitis C
  • Amyotrophic lateral sclerosis (ALS - Lou Gehrig's Disease)
  • Crohn's disease
  • Agitation of Alzheimer's disease
  • Nail patella
  • New conditions can be specified: 
  • [Section 3 (a)3] Applies to any other medical condition or its treatment approved by the department, as provided for in section 5(a).



General Diseases ,Medical Conditions, and treatment not listed but authorized in Statute:
Open ended definition of "Debilitating medical condition" includes any other conditions below [Section 3 (a)2]

  • A chronic disease or its treatment 
  • A chronic medical condition or its treatment 
  • A debilitating disease or its treatment
  • A debilitating medical condition or its treatment

if it produce sany of these symptoms or side effects: 

  • cachexia or wasting syndrome; 
  • severe and chronic pain; 
  • severe nausea; 
  • seizures, including but not limited to those characteristic of epilepsy; or  
  • severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.


Protections and Responsibilities of Physicians: [Section 4(f)]

  • A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action 
  • by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, 
  • solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, 
  • or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition,

Provided that nothing shall prevent a professional licensing board from sanctioning a physician for 

  • failing to properly evaluate a patient's medical condition or 
  • otherwise violating the standard of care for evaluating medical conditions.

 

Standing: The law provides specific legal protections and immunities for Qualified Patients

  • Registered "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition. [Section 3(f)]. 
  • Must have a registry identification card, or its legal equivaluent if department fails to issue. [Section 9(b)]. 
  • If the department fails to issue a valid registry identification card in response to a valid application or renewal submitted pursuant to this act within 20 days of its submission, the registry identification card shall be deemed granted, and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.
  • [Section 9(c)]. If at any time after the 140 days following the effective date of this act the department is not accepting applications, including if it has not created rules allowing qualifying patients to submit applications, a notarized statement by a qualifying patient containing the information required in an application, pursuant to section 6(a)(3)-(6) together with a written certification, shall be deemed a valid registry identification card

·   

Standing: The law provides specific legal protections and immunities for Visiting Qualified Patients: "Visiting qualifying patient" means a patient who is not a resident of this state or who has been a resident of this state for less than 30 days. [Section 3(k)] A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient's medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department. [Section 4(j)]·   

 

Standing: The law provides specific legal protections and immunities for Patients under Affirmative Defense (No Registry ID Card): "Patient" means a person who possesses not more than an amount reasonably necessary to insure uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms, uses for a medical purpose, whose doctor has stated is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms.  


Standing: The law provides specific legal protections and immunities for Primary Care givers: "Primary caregiver" means a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs. [Section 3(g)]    A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances. [Section 4(e)]·   

 

Standing: The law provides specific legal protections and immunities for Qualified Patients, Patients, Primary Care givers, and Physicians: "Physician" means an individual licensed as a physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556. [Section 3(f)]

 

Standing for others: The law also provides specific legal protections and immunities for Paraphinalia Providers, Persons merely in the vicinity of, or persons who assist registered qualifying users.

 

Act does not create special entitlements [Section 7(c)]
Nothing in t his act shall be construed to require:
    (1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.
    (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.



Parental Rights:[Section 4(C)]A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

Revocation of Registry Identification Card and Felony for Abuse: Any registered qualifying patient or registered primary caregiver[Section 4(k)]:

  • who sells marihuana  
  • to someone who is not allowed to use marihuana for medical purposes under this act  
  • shall have his or her registry identification card revoked and 
  • is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.


Physician Notice to Department-Card Revoked
:
[Section 6(f)] If a registered qualifying patient's certifying physician notifies the department in writing that the patient has ceased to suffer from a debilitating medical condition, the card shall become null and void upon notification by the department to the patient.

 _____________________
 
If you do not have a Registry ID card
 
If there is no registry card, patient must assert the Affirmative Defense. 
 
Standing and Scope of the Affirmative defense:
The affirmative defense is available to the following people:
  • Any "patient" who demonstrates the patient's medical purpose for using marijuana pursuant to this section; or
  • Any patient's "primary caregiver" who demonstrates the patient's medical purpose for using marijuana pursuant to this section.
 
 
The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia, in these proceedings:
  • Any prosecution involving marijuana [Section 8(a)]
  • Any disciplinary action by a business or occupational or professional licensing board or bureau [Section 8(c)1]; or
  • Forfeiture of any interest in or right to property. [Section 8(c)2]
No Seizure or Forfeiture of Marijuana Supply: [Section 4(h)] Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.

 
Statutory authority to assert defense and presumption: [Section 8(a)] 
Act authorizes assertion of the affirmative defense, and crates a presumption of validity of the defense where a showing is made as to its elements. "Patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense." Generally, in asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence. At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.

Statutory authority to bring a motion to dismiss, and mandatory dismissal:
[Section 8(b)] 
The Act establishes statutory authority for a motion to dismiss. "A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the specified elements of the defense." The showing must prove the elements by a preponderance of the evidence, and where this showing is made the dismissal is mandatory.


Disqualifications: [Section 8(a)] Defendant cannot assert the affirmative defense if possessing or engaging in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that apply to the Section 8 affirmative defense and to the Act's other more prophylactic immunities for registry participants. The defense may not be asserted for any of the following: 
  • Smoking marijuana "in any public place"; 
  • Smoking marijuana on any form of public transportation;
  • Any use by a person who has no serious or debilitating medical condition;
  • Any conduct where being under the influence would constitute negligence or professional malpractice per se; 
  • Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
  • Any use or possession in a school bus; 
  • Any use or possession on the grounds of any preschool, primary, or secondary school; 
  • Any use or possession in any correctional facility;

Elements of the Affirmative Defense
:
You must show the following facts to assert this affirmative defense:
1. The Gatekeeper's Statement [Section 8(a)1]:
  • A physician (Licensed MD or Osteopath) 
  • has stated that 
  • in the physician's professional opinion
  • after having completed a full assessment of 
  • the patient's medical history and
  • patient's current medical condition
  • which assessment was made in the course of a bona fide physician-patient relationship
  • that the patient is likely to receive therapeutic or palliative benefit 
  • from the medical use of marihuana
  • to treat or alleviate 
  • the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition
2. The Reasonably Necessary Quantity [Section 8(a)2]:
  • The patient and the patient's primary caregiver, if any, were 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
3. The Medical Purpose [Section 8(a)3]:
The patient and the patient's primary caregiver, if any,
  • were engaged in the 
  • acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana
  • to treat or alleviate 
  • the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.
 
 



 Read the text of the new law verbatim