Michigan Jury Instructions Regarding Medical Marihuana Affirmative Defense
M Crim JI 12.9 Medical Marijuana Affirmative Defense
(1) The defendant says that [he / she] is not guilty since [his / her] [acquisition / possession / cultivation / manufacture / use / delivery / transfer / transportation] of marijuana was legal because it was permitted for medical purposes. The burden is on the defendant to prove that [he / she] [acquired / possessed / cultivated / manufactured / used / delivered / transferred / transported] marijuana for medical purposes.
(2) Before considering the medical marijuana defense, you must be convinced beyond a reasonable doubt that the defendant committed the [crime / crimes] charged by the prosecutor. If you are not, your verdict should simply be not guilty of [that / those] offense[s]. If you are convinced that the defendant committed an offense, you should consider the defendant’s defense that [he / she] [acquired / possessed / cultivated / manufactured / used / delivered / transferred / transported] the marijuana for medical purposes.
(3) In order to establish that [his / her] [acquisition / possession / cultivation / manufacture / use / delivery / transfer / transportation] of marijuana was legal, the defendant must prove three elements by a preponderance of the evidence. A preponderance of the evidence means that [he / she] must prove that it is more likely than not that each of the elements is true.
(4) First, that a physician provided a professional opinion stating that the [defendant / defendant’s patient] is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate a serious or debilitating medical condition or the symptoms of a serious or debilitating medical condition.
The term “therapeutic benefit” means tending to cure or restore to health.
The term “palliative benefit” means moderating pain or symptoms by making them easier to bear, without necessarily curing the underlying medical condition.
In order to prove that a physician provided a professional opinion, the defendant must establish both of the following conditions:
(a) that [(he / she) / (his / her) patient] had a bona fide physician-patient relationship with the physician who provided the professional opinion; and
(b) that the opinion was made after a full assessment of the [defendant’s / defendant’s patient’s] medical history and current medical condition.
A bona fide relationship means that there was an actual and ongoing relationship between [defendant / defendant’s patient] and the physician when the opinion was provided.1
(5) Second, that the defendant [and (his / her) primary caregiver] [acquired / possessed / cultivated / manufactured / used / delivered / transferred / transported] no more marijuana than was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the [defendant’s / defendant’s patient’s] medical condition or symptoms.
(6) Third, that the defendant [and (his / her) primary caregiver] [was / were] engaged in the [acquisition / possession / cultivation / manufacture / use / delivery / transfer / transportation] of marijuana to treat or alleviate the [defendant’s / patient’s] medical condition.
(7) You should consider these elements separately. If you find that the defendant has proved all three of these elements by a preponderance of the evidence, then you must find [him / her] not guilty because [his / her] [acquisition / possession / cultivation / manufacture / use / delivery / transfer / transportation] of marijuana was permitted for medical purposes. If the defendant has failed to prove any or all of these elements, [he / she] was not legally permitted to [acquire / possess / cultivate / manufacture / use / deliver / transfer / transport] marijuana.
(a) “Bona fide physician-patient relationship” means a treatment or counseling relationship between a physician and patient in which all of the following are present:
(1) The physician has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in-person, medical evaluation of the patient.
(2) The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.
(3) The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marihuana as a treatment of the patient’s debilitating medical condition.
(4) If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the medical use of marihuana to treat that condition
Michigan State Bar “Michigan’s model criminal jury instructions have been developed over the course of many years through the State Bar’s Standing Committee on Criminal Jury Instructions, and published by the Institute for Continuing Legal Education which has made them available to its subscribers and through individual purchase. Calling these instructions a “valuable tool,” the Michigan Supreme Court has concluded that they have acquired such widespread use and the utility for attorneys, litigants, and courts, the Court has now ordered that the use of will be freely available, and mandatory after March 1, 2014.”
Komorn Law has represented numerous clients through the legal chaos defending against criminal charges, drunk driving and also starting up a business in the Michigan Medical Marihuana Industry.
If you or someone you care about is facing charges as a result of Medical Marijuana, DUI, Drugs, Forfeiture, Criminal Enterprise, etc. Please contact our office and ensure you’re defended by an experienced lawyer in the evolving laws.
Lead attorney Michael Komorn is recognized as an expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation