Komorn Law, PLLC-14 pound Medical Marihuana case dismissed pursuant to section 8 of the MMMA.

Nov 26, 2014 | Blog, Michigan Medical Marijuana Act, Recent Victories

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

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20120717_c301427_52_301427.opn.pdf

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.