LANSING, MI — Lawmakers early Friday approved changes to Michigan’s medical marijuana law.
The legislation adds clarification and restrictions to the voter-approved medical marijuana act of 2008 and got the required support from three-fourths of legislators. The changes are the result of many months of meetings with stakeholders and committee hearings with testimony from law enforcement officials, doctors, medical marijuana caregivers and patient advocates.
Starting around 4 a.m., two main bills got 29-9 and 30-8 votes in the Republican-led Senate. Shortly after, the GOP-controlled House voted 98-7 and 100-5 to send them to Gov. Rick Snyder.
Michael Komorn, an attorney and president of Michigan Medical Marijuana Association, told MLive last week that the bills are unnecessary, and that many issues with the law are already being handled in court.
HB 4834 requires a driver’s license or state ID card to obtain medical marijuana patient registration cards, extends the card’s expiration from one to two years, and attempts to address a backlog of card applications by calling for the state to contract with a private company to help process and issue registration cards.
It also would allow the Department of Licensing and Regulatory Affairs to verify the validity of registry cards to members of law enforcement, without disclosing more information than necessary.
HB 4851 adds conditions for a “bona fide physician-patient relationship,” which is required for medical marijuana cardholders.
It also clarifies how marijuana plants must be enclosed, and forbids anyone from becoming a caregiver (or provider of medical marijuana) if they’ve been convicted of a felony in the past 10 years or have ever been convicted of a felony involving illegal drugs or an assaultive crime.
That means some people who currently provide patients with medical marijuana will be excluded from doing so.
“There are people who may fall into that category who are taking care of a mother who has cancer or other patients who are sick,” Komorn said. “What are they going to do now?”
HB 4853 lays out sentencing guidelines and HB 4856 regulates the transportation of medical marijuana in cars.
Another bill headed to the governor specifies that medical marijuana expenses do not have to be covered by worker’s compensation or auto insurance benefits.
House Bill 4856 was passed by the Michigan Legislature during a frantic lame-duck session in which dozens of bills were voted on and passed within a matter of a few hours, including votes taken at 4:30am. The text of HB 4856 is below:
Sec. 474. (1) A person shall not transport or possess usable marihuana as defined in section 26423 of the public health code, 1978 PA 368, MCL 333.26423, in or upon a motor vehicle or any self-propelled vehicle designed for land travel unless the usable marihuana is 1 or more of the following:
(a) Enclosed in a case that is carried in the trunk of the vehicle.
(b) Enclosed in a case that is not readily accessible from the interior of the vehicle, if the vehicle in which the person is traveling does not have a trunk.
(2) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.
This act is ordered to take immediate effect.
Attorney Michael Komorn blogs on occasion for The Compassion Chronicles. Here are his thoughts:
Michael Komorn, attorney
Michael Komorn at the 2012 Medical Marijuana Election Discussion
House Bill 4856, born out of the late night lame duck session, is not a law intended to protect patients or caregivers. Instead it sets out a new opportunity for law enforcement officers to find violations of how patients and caregivers engage in the medical use of cannabis. Furthermore it is a law that exclusively targets persons who choose to treat their serious or debilitating condition with medical cannabis, and no one else.
If the goal of this legislature was to clear up the “holes” in the law, the passing of 4856 would earn the Legislature an (F) Failure on their report card, for doing the exact opposite:
1.The MMMA requires a 75 percent vote in both houses to amend the act, but the creation of 4856 only required a 50 percent vote to amend the Michigan Penal Code, and created a prohibition for previously protected behavior.
2.4856 prohibits “persons” from carrying usable marihuana in the interior of a vehicle, unless it is within an enclosed case (definition of enclosed case not provided). Yet the MMMA specifically protects the same behavior 4856 prohibits. Section 4(a) and (b) of the act, protects a person from arrest, prosecution or any penalty, if they possesses, a registry I.D. card and 2.5 ounces or less of usable marihuana, so long as not while on a school bus, grounds of a preschool, primary or secondary school, correctional facility etc.. Said another way 4856 creates, conflict and confusion upon implementation and will certainly be challenged with litigation.
3.4856 may lead officers to search patients and caregivers vehicles upon learning of their registry status to determine if their medicine is enclosed properly in a case. In this light, 4856 is hard to reconcile with the most basic protection outlined in the act prohibiting the use of a patients status, their card, or certification documents as probable cause to search as outlined in Section 6. “6. Administering the Department’s Rules. (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”
4.4856 refers to the MMMA’s definition section but never use the word patient or caregiver. 4856 prohibits a “persons” from carrying usable marihuana in the interior of their vehicle unless it is in a case, arguable implying a way for any “person” to now carry marihuana in a lawful way. One could even read 4856 to suggest any person now can carry unusable marihuana in a vehicle, and so long as it is not usable, and that this activity is no longer a crime.
5.4856 clearly creates another crime or reason for a patient or caregiver to get arrested, but at the same time provided so much confusion and conflict with the existing law that a reasonable argument could be made that 4856 suggest that cannabis is no longer illegal for persons, so long as you comply with 4856 and have your usable cannabis in your trunk.
The goal of this legislature should have been to ensure the implementation of the voter’s initiative. They should have started with the premise what can they do to protect patients and caregivers from arrest, and treat these issues as public health concern and not public safety issues. Their failure to follow this approach is the reason why laws like 4856 were passed. 4856 is not a reasonable restriction and the legislatures attempt to “fix” the act, can only be described as a big swing and a miss.
Attorney Michael Komorn’ practice specializes in Medical Marihuana representation. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group with over 26,000 members, which advocates for medical marihuana patients, and caregiver rights. Michael is also the host of Planet Green Trees Radio, a marijuana reform based show, which is broadcast every Thursday night 8-10 pm EST
Last week, Michigan’s leaders passed a number of bills in a marathon lame-duck session, scrambling to push through controversial legislation behind closed doors late into the night. The bills included several amendments to Michigan’s Medical Marihuana Act (MMMA), in addition to an Emergency Financial Manager bill which was previously rejected by Michigan voters just over a month ago.
The medical marijuana bills passed include provisions that:
– Restrict how medical marijuana is transported, potentially creating a new crime
– Dictate workers’ compensation or auto insurance coverage for medical marijuana
– Continue to attack the doctor-patient relationship, discouraging additional potential doctors from participating
– Encourage outdoor growth without addressing concerns of additional protections
– Disqualify some current, approved caregivers after previous long-term patient relationships
These stipulations do nothing to protect patients or caregivers, and seem aimed at creating more medical marijuana-related arrests.
Requiring a specific location for transport is absurd, and shows politicians do not recognize the medicinal benefits of marijuana, continuing to treat it as an illegal drug. Must you take the same precaution when picking up antibiotics or heartburn medication, locking it in the trunk and disallowing any passengers? These new bills are a step back for Michigan and the MMMA.
If legislators want to make a difference, it starts elsewhere than the Act. The program’s $16.7 million surplus, according to the Senate Fiscal Agency, should be used to teach and retrain police agencies on new policies and procedures regarding medical marijuana. Patients and caregivers have created this surplus, they should benefit directly from it.
Several months ago, I spoke at a House Judiciary Committee Hearing, providing perspective on patients and medical marijuana. The goal then, as it remains now, is to change the perception of medical marijuana and increase patient safety, not leave them open for more scrutiny and harassment.
Legislators need to accept medical marijuana, its benefits, and understand that their constituents overwhelmingly approved its legality. Medical marijuana needs to be added as a provision to the Public Health Code, rather than viewed as an exception to criminal behavior in limited circumstances.
Legislators have seemingly caused more stress, fear and anguish for the very people who put them in office. The passing of the MMMA was an historic day for Michigan and a huge victory for those seeking a natural, legal remedy for their ailments. The continued attacks of the Act endangers Michigan residents and is an ill-fated attempt to over-regulate and destroy its original intent, which is to provide patients with the relief they seek through the use of medicinal cannabis.
From the Huffington Post. To read original article click here
“One could say this is the first time in four years the discussion between the Government and the medical marihuana community was focused on patient health issues instead of political and legal issues”
Last August, the state began assembling a medical marihuana review panel, with the ultimate goal of finally hearing arguments to add new conditions to the Michigan Medical Marihuana registry. Now, with the help of that panel, more than four years after Michigan residents approved the Michigan Medical Marihuana Act (MMMA), the registry is close to adding its first new condition — Parkinson’s disease.
On Friday, January 25, the state’s Department of Licensing and Regulatory Affairs review panel heard from the community about why Parkinson’s should be added to the registry and the direct benefits of medical marihuana.
This is one of the most important parts of the MMMA, empowering residents to petition and garner support to add new conditions to the registry. Considering new conditions like Parkinson’s and Post-Traumatic Stress Disorder (PTSD) is a major step for advancing medical marihuana in Michigan and ensuring the state’s residents have access to the best medical care for their condition. One could say this is the first time in four years the discussion between the Government and the medical marihuana community was focused on patient health issues instead of political and legal issues. For medical marihuana supporters, hard work and advocacy is paying off as they see the state truly recognize the medical benefits of cannabis.
Initially, the panel met in December to hear marihuana supporters and detractors voice their opinions on Parkinson’s and PTSD, both of which were up for debate for potential addition to the registry. With the review panel accepting Parkinson’s but denying PTSD, it’s a start and reason for hope for thousands of Michiganders looking to use medical marihuana to improve the quality of their lives. While PTSD didn’t make the cut, advocates continue to make their push, receiving support from the community and displaying the same strength that helped pass the MMMA initially.
Advocates and PTSD sufferers have until March for their arguments, written and orally, to be heard by Michigan’s Bureau of Health Services. If the past is any indication, supporters will continue to fight to add PTSD and other conditions to the registry, strengthening the medical marihuana community in Michigan.
Client charged with Possession with Intent to deliver 5-45 Kilograms of Marijuana-7 year felony, and Maintaining a Drug Vehicle- 2 year felony.
Client pulled over for speeding, police report said officer could smell marihuana while following the vehicle. Once at the driver’s window, officer noticed 6 totes in the back of the vehicle. Client asked to step from vehicle, which he did, and then proceeded to lock car with key fab and declare I do not consent to a search right out of the “know your rights” video. Much discussion about plants, lawfulness, cards, unusable material, where are you going etc.. At one point the client’s patient showed up at the scene of the stop and offered paperwork and cards, not in possession of the driver, which were of no interest to the officer.
Client was arrested, and arraigned a few days later. One of the memorable quotes from the case was when I tried to explain to the detective/OIC that the material confiscated were recently cut plants and not usable material, to which this 30 year police veteran exclaimed ” what did you expect me to do let him go?
He was of course referring to the weight of the 23 freshly cut plants that had been found in the totes which weighed 14 lbs.
The Preliminary exam was conducted over several days. At one point the prosecutor asked for an adjournment to consider if they wanted to trim and dry the material, to get an accurate weight. I responded that this would be the first time the government manipulated evidence to meet its theory of guilt and asked for precedent on this issue. The prosecutor could not produce any and ultimate chose not to meddle with the evidence.
DISTRICT COURT’S FINDINGS OF FACT
At the preliminary examination, the Court made a finding of fact that on the day in question client was in fact a registered medical marihuana patient and a registered caregiver for five patients and was in possession of valid registry identification cards. All of the registry cards were admitted into evidence. As such, the court found that client was authorized to possess up to 72 medical marihuana plants and up to 15 ounces of usable medical marihuana.
The Court found that the marihuana found in clients car was 23 freshly cut marihuana plants. The court further found that the freshly cut plants were wet and not dried. Although the Court found the freshly cut plants weighted a total of 14 pounds, the Court expressly found that the marihuana plants were not usable marihuana.
Additionally, the Court found that there was no evidence that client ever actually sold marihuana since no large amounts of money were found.
DISTRICT COURT’S RULINGS OF LAW AT PRELIMINARY EXAMINATION
At the close of evidence, the People moved to bindover the client on the charges of Possession with Intent to deliver 5-45 Kilograms of Marijuana and Maintaining a Drug Vehicle. I objected to the bindover based the fact that client, as a medical marihuana patient and caregiver, is protected by Section 4 of the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26424, and is immune from prosecution. I argued that no evidence had been presented to show that my client had more than 2.5 ounces of usable material.
The District Court, in its oral opinion, determined that the main issue is whether the client’s possession of the 23 freshly cut marihuana plants, totaling about 14 pounds of wet marihuana, was legal per Section 4 of the MMMA, considering that client is a registered medical marihuana patient and a registered caregiver for 5 patients.
The court first analyzed Section 4 (b) of the MMMA, MCL 333.2604(b), and stated that the Section provides that:
A primary caregiver who has been issued and possess a registry identification card, 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 a business or occupational or professional licensing board or bureau for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marijuana in accordance with this act, provided that the primary caregiver possesses an amount of marijuana that does not exceed [(1)]2.5 ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department’s registration process and, [(2)], for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marijuana for the qualifying patient 12 marijuana plants kept in an enclosed locked facility.
The court went on to state that it is clear from the testimony that client had his own medical marihuana patient registry card and had caregiver registry cards for five patients. Thus, the court ruled that if client had less that 15 ounces of usable marihuana and less than 72 marihuana plants, his possession of the marihuana would be legal and he would be immune from prosecution.
The court held that since the marihuana involved in this case were cut plants, they are not considered plants for purposes of Section 4 immunity.
The court determined that the ultimate issue in this case is whether the marihuana that client possessed was “usable” for purposes of Section 4 immunity, and if not, what effect “unusable” marihuana has on Section 4 immunity.
The court referred to MMMA Section 4 (j), MCL 333.26423(j), for a definition of useable marihuana, and stated that “usable marijuana means the dried leaves and flowers of the marijuana plant and any mixture or preparation thereof but does not include the seeds, stalks, and roots of the plant.”
The court also referred to the general definition of marijuana contained in the Public Health Code under MCL 333.7106, and stated that “[m]arijuana means all parts of the plant, cannabis sativa L, growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.”
Based on the District Court’s reading and interpretation of Section 4, the MMMA’s definition of usable material, and the general definition of marijuana contained in the public health code, the court ruled that Section 4 of the MMMA only protects patients and caregivers who possess actual marihuana “plants” and/or patients and caregivers who possess “usable” marijuana. The court ruled that “unusable” marihuana is not protected by Section 4 of the MMMA; thus, patients and caregivers who possess unusable are subject to prosecution under the public health code.
Applying the facts of the case to its interpretation of the MMMA, the District Court ruled that the marihuana possessed by client “was all wet marijuana, none of which was usable under the statute. . . If it would have been usable marijuana that did not exceed 15 ounces, there would be immunity. But the court is of the opinion that [since it was unusable] the Defendant did not enjoy the immunity provided by section four.” To clarify its ruling, the Court stated that “[b]ecause it was wet, it was not usable marijuana. I find none of it was usable . . . and I find that the individual does not have immunity if they are transporting or in possession of nonusable marijuana, irrespective of the card.”
Thus, since client was in possession of marijuana that was wet and unusable, the District Court bound client over on count 1 Possession with Intent to deliver 5-45 Kilograms of Marijuana but dismissed count 2 Maintaining a Drug Vehicle.
CIRCUIT COURT MOTIONS AND HEARINGS
We drew The Honorable Judge Hayman in the Genesee Circuit Court, while in Circuit court we filed a motion to quash the bindover, as well as another section 4 motion and a section 8 motion.
The motion hearing resulted in a denial of the motion to quash and denial of the motion for dismissal pursuant to section 4, in a prepared written ruling the Judge read from the Bench. He did not let us argue orally at the motion hearing, but did ask if we had anything to add other than what was asserted in our pleadings. I offered the Court the recent amendment to the MPC, 4856, suggesting that this recent legislative enactment supported my position that usable material was protected within section 4, and not excluded, and gave him a copy of it at the bench.
His ruling on the motions really did not address the issues I laid out in my pleadings but he did he did reference several time that the amount of 14 pounds of marihuana was not and could not be what was intended in the voter initiative MMMA.
Prior to our scheduled return for the Section 8 evidentiary hearing, I debated with the prosecutor via email on several occasions, what would be required at the section 8 hearing. My impressions after the motion hearing on the Section 4 immunity, were that the Judge would have a difficult time moving his focus off the 14 pound number and that the best we would do after the section 8 hearing would be to create a question of fact on the three prongs of section 8, and then take our medical defense to a jury, who I have always believed and continue to maintain will be the best audience for positive outcomes in these cases. I had actually one point concluded in my own mind that it would be silly to have a section 8 hearing and instead suggested to the prosecutor that we just stipulate that a question of fact existed for purposes of the section 8 hearing and move on and pick a jury.
Prosecutor
“I have been running around all day but have had an opportunity to look at some of the MMMA stuff. The more I read and understand, the more I realize we will have to have a Section 8 hearing before the trial. Case law seems pretty concrete that if you want to assert that as a defense, we need to have that evidentiary hearing beforehand. Also, I know we spoke about some different things with your doctor testifying and I really believe he needs to be in court.”
Komorn
I agree that the law is clear on this issue. An evidentiary hearing regarding section 8 has to take place prior to the jury trial and an affirmative defense regarding the MMMA. I would note that the law is also very clear on the evaluation of the evidence or the threshold that needs to be met by the defense to assert such a defense is “weather a question of fact exists on each of the three elements of section 8.
People v. Anderson is the controlling case on this: http://publicdocs.courts.mi.gov:81/opinions/final/coa/20120918_c300641_69_300641o.opn.pdf
“The trial court also erred by assessing the weight and credibility to be given Anderson’s evidence and by resolving any factual disputes. Kolanek, 491 Mich at 411.
The trial court’s sole function at the hearing was to assess the evidence to determine whether, as a matter of law, Anderson presented sufficient evidence to establish a prima facie defense under § 8 and, if he did, whether there were any material factual disputes on the elements of that defense that must be resolved by the jury. Id. at 412-413.
Further the case law is pretty well established in People v. Kiel
In this case the courts states that the cards suffice as prima fascia evidence of prong 1 and 3.
“At the evidentiary hearing, defendant testified that he was not only a medical marijuana user, but he was also a medical marijuana caregiver for himself, plus four other people. To support his testimony regarding the first element and third element, he offered into evidence various medical marijuana IDs of himself, Hublick, Geyer, Ehl, and his son, Dusty. Defendant also submitted two caregiver attestations, one each for Hublick and Dusty that were each dated July 24, 2009. The fact that these individuals were registered with the state as medical marijuana users is prima facie evidence of the first and third elements.
The facts are uncontested that my client had 4 valid cards at the time of the offense, 3 for being a caregiver and 1 as a patient. The only issue that remains is prong 2 of section 8 “(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;
The Anderson case seems to dictate and by definition “Reasonableness” makes prong 2 a question of fact for a jury.
My suggestion of stipulating that a question of fact exists in this case was made because, it would seem silly to go through the section 8 hearing when there seems to be no genuine dispute that a question of fact exists. Or said another way the facts of this case create a question of fact. If you think otherwise please explain what your support for that would be. In fact the law as outlined in Anderson suggests that that upon a showing of some evidence on each of three prongs of section 8, would entitle the accused to a medical marihuana defense. My suggestion to stipulate to this was based upon the above facts presented to you as an offer of proof, and an attempt to not waste time or resources arguing about issues that are resolved by a standard of proof of “a question of fact.”
The remedy for the accused who is denied the right to present a defense per P v. King/Kolenik, is an interlocutory appeal, which would be our intent in the event of an adverse ruling regarding a mm defense.
Nonetheless if you want to go forward with the section 8 hearing I will be ready to do this. I should have an affidavit from the Doctor regarding my client and his patient status tomorrow morning. As I discussed with you, the certifying Dr. for my client has indicated that he is disabled and appearing live in Court is going to be very challenging to him, despite him being ordered to be in court to testify. At this time I have told him he is on standby.
Thanks for your attention in this matter, please let me know if you have any questions or comments.
Prosecutor
After speaking with my boss, we have determined that since the judge will not let your Doctor call in, he is going to need to be there.
Komorn
I specifically recall the Judge saying that we should depose the Doctor. Ask your Boss when a good time to do this will be. I know we are supposed to go back on Friday, and my schedule is tight, but I will try to assist in getting this done. I don’t recall any ruling or order saying that my Dr. had to be there, and in light of P v. Kiel, and really no offer of proof by the People as to why he would need to be there, the statement “he is going to need to be there” seems to be nothing but harassment of medical marihuana Dr.’s, patients and caregivers. The Judge only said that the Dr. couldn’t call in on the phone, because of the difficulty of getting the conversation into the formal record. He never said that the Doctor had to be there. Furthermore, I provided you with the full medical records of my client and an affidavit from the Doctor, what more could the prosecutor ask of the Dr on the issues related to prong 1 of section 8.
Prong 1 of section 8 requires that (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 to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;
The signed certification, which you are now in possession of, has a signature below a statement, by a physician as defined in the law, that (he) certifies that
1. He is physician licensed to practice in the state of Michigan.
2. That he has the responsibility for the care and treatment for the above mentioned patient.
3. That it is his professional opinion that the applicant has been diagnosed with a debilitating medical condition as indicated above ( severe and chronic pain).
4. That the medical use of marihuana is likely to be palliative or provide therapeutic benefits for the symptoms or effects of applicants condition..
5. This is not a prescription for the use of medical marihuana.
6. Additionally if the patient ceases to suffer from the above identified debilitating condition, I hereby certify I will notify the department in writing.
Additionally you have a 16 paragraph affidavit outlining more statements by the doctor related to his decision to certify my client.
All of this begs the question of what is the issue you contest in this regard. Can you assert an actual offer of proof ?
What is your legal response to the P v. Kiel case other than you disagree with it, and instead have a different personal and subjective statutory interpretation?
Prosecutor
Judge Hayman will have some questions for the doctor as well.
Komorn
How do you know this? I didn’t hear the Judge refer to the need to question the Doctor, and further more if the Doctor says the exact same things he says in the certification and the affidavit, as a matter of law a question of fact has been created. Or do you mean that your Boss will have some questions? If so what bearing do those questions have on the limited issue of prong 1 of section 8.
Prosecutor
I know this puts you in a tough position but hopefully it can be quick and get him in and out fairly painlessly.
Komorn
I don’t know that the Doctor will even be available Friday. In my past conversations with him, it had been indicated that his best day if any would be Monday’s. I agreed to the Friday date upon the premise that the affidavit would suffice. Only after we received that date, a date I am pretty certain the Dr. is not available did I learn that you do not acknowledge the affidavit, the certification document of Dr. Shaw and 2 other Dr. Licensed to practice in Michigan and my client’s medical records. If the Court is inclined to move the hearing to this Monday instead of Friday I may be able to get him there, but again, why and for what specific reason, other than to have him repeat the exact same items that have already been provided to you.
Demand for Discovery
Pursuant to our ongoing demand for discovery in this case:
Please provide to me the “relevant supporting data” for the Forensic Scientist Elaine Dougherty that she refers to in her report. Specifically the error rate for the weighing of the material.
Thanks for your attention in this matter, please let me know if you have any questions or comments.
We had been ordered to return for our hearing on a Friday, the doctor was not available but said he could be available on Monday if needed. When the hearing commenced the Court asked of any preliminary issues, to which the above email conversations were reiterated on the record. I argued that pursuant to Kiel, we had established a prima fascia showing of prong 1 and 3 with the cards, and the only issue that remained was prong 2 the reasonable amount.
The prosecutor essentially offered no response in Court to my arguments, and in fact agreed with my interpretation of Kiel.
The Honorable Jude Hayman then concluded he agreed with the parties reading of Kiel, and stated after reading Kiel and Anderson, “I find that prong 1 and 3 have been satisfied.” He then went on to say that I agree the only issue that remains is prong 2, and the way I am reading it seems to be: that if the defendant provides evidence of the quantity being a reasonable amount, I must dismiss the charges absent a showing of evidence to the contrary that creates a question of fact.
Clearly this was the absolute best interpretation I had heard of section 8, and I had no interest in arguing with this interpretation, I also knew that the prosecutor was not planning on calling any witnesses at this hearing. Suggesting to me that the game was over at this time and everything else was just going through the motions.
Section 8 Hearing
I called one of my clients patients, she was also the mother of one of my clients other patients. She gave very compelling and detailed testimony of her medical conditions, lack of relief from other traditional treatments and that the honey oil/ Simpson oil that my client was making for her was the only medicine that worked for her. She testified she had been on a 1 gram a day dosing, ½ gram in the morning sativa, and ½ gram in the evening indica. She explained that the prior 2 harvests before the raid, she and my client had a method to the making of the medicine. He would take 12 freshly cut plants to her house, leave them there to dry and be trimmed by the patient. He would return a few weeks later and process the useable material, flower/bud into the honey oil/Simpson oil.
When she got off the stand, Judge Hayman said to her “Mam you are a beautiful person, and I am going to pray for you and your family.” I could tell he was moved by her testimony and courage to share the very personal and intimate medical issues she had experienced.
When we returned this past Friday we continued with the hearing, I called my client, who explained his own medical conditions, and his history of growing for himself, and then when he became a caregiver. I had him go into elaborate detail of his growing techniques and procedures. We discussed projected yield of his plants from his past experience ( although it is not a science), and the amount of usable material he would need to process in order to provide a 30/60/90 day supply of the honey oil/Simpson oil for his patients. He went on to explain what his intentions were on the day of the arrest. How his plan was the same as it had been in the past few harvests, and what he specifically planned to do with the 23 freshly cut plants.
Judge Hayman seemed to be impressed with my client’s testimony. He was amazed with the care and concern my client took in the preparation of the material to ensure it was clean and the steps he took to ensure the final processed material left with the patient was not more than allowed pursuant to section 4. He commented on how he did not know that the fan leafs of the plant were not what was considered valuable from the plant. “Every time I see pictures of a marihuana grow, I always say wow look at all those leaves. I didn’t know the leaves of the plant were not desirable.” He even joked that if he was dropped in a field of marihuana and was told to grab what he could he would have grabbed all the wrong parts of the plant.
I must compliment Judge Hayman (and his staff) who seemed very prepared and focused on the issues presented at the section 8 hearing.
After my client stepped down, we offered our closing remarks and the Court made a finding that we had satisfied all the elements of section 8 and thus we were entitled to dismissal of the charges.
