Simple as 1,2,3 - Will be the new policy for the MMMA forums

So much ado has been made at our attempt to provide a reasonable policy for posting on the forums. Much debate has been had amongst the moderator staff and on the forums amongst our members. As is often the case and even more so on the Internet, communication and semantics are critical when trying to develop a consistent but clear policy regarding the Act that can be enforced easily and without issue. The unambiguous policy to date has created some confusion when its intent was just the opposite. Additionally and without merit many of the moderators have been under attack for attempting to enforce a policy that is designed only to protect patients from arrest, prosecution or penalty. The reference to Nazis is offensive and reflects an absolute lack of knowledge of history, common sense, and humanity. The comparison of anything the moderators do on this site to the devastation the Nazis did in world history is blatant ignorance.

Let it be stated now, and made very clear that the MMMA does not believe that the proper interpretation of the law would prohibit any of the behavior that may fall into the so called ambiguous zone. The MMMA believes that the Act should be interpreted liberally, and with the sole purpose of protecting patients and caregivers. Further the MMMA does not believe that dispensaries, farmers markets, any registered caregiver transfers to any registered patient or patient to patient transfers are unlawful. In fact the MMMA believes and acknowledges that all of these acts and behaviors are critical and essential for the medical cannabis community to survive and flourish. Why then would the MMMA attempt to create a policy that purports to limit this behavior? The answer is simple, we are not!

What are we trying to do then? The MMMA is simply trying to provide advice and direction for patients and caregivers to avoid arrest, and be forced to defend themselves in court. It is that simple.

Perhaps as simple as 1, 2, 3.

Simple as 1, 2, 3 will be the new policy for the MMMA forums.

The behavior of patients and caregivers will be and should be assessed by a ranking of risk and liability scored by Level 1 risk, Level 2 risk, and Level 3 risk.

Ask yourself the following question: is there a consistent and unequivocal interpretation of the behavior by patients and caregivers that LEO would agree is lawful? Said another way, would the behavior in question result in an arrest if you asked all LEO statewide? The focus here is not what the MMMA wants; the focus here is not what the MMMA believes the proper interpretation of the act should be. The focus here is not what LEO in your local community says is lawful. Instead the operative question is how do all Leo state wide interpret the act and what do they believe is unlawful behavior?

Is there a consistent and unequivocal interpretation of the behavior by patients and caregivers that LEO would agree is lawful?

If the answer is yes you are in a Level 1 Risk category and should be protected against arrest, prosecution, or any penalty.

All other behavior outside of this definition falls into Level 2 and 3 risk categories. Level 2 and 3 behavior is not unlawful per se, but is behavior that may subject you to a higher risk or liability of arrest. The key here is that the MMMA is not calling this behavior unlawful.

The Level 2 and 3 behavior however is behavior which may not without equivocation protect you from arrest, prosecution, or any penalty, although the MMMA believes it should. Those seeking information and guidance from our site need to know that your protections do not include immunity from arrest. Instead your protections will come via the affirmative defense set out in section 8 of the Act.

For those that are not aware, the Act is set up with 2 different levels of protection. There is a section 4 protection which is immunity from arrest prosecution or any penalty. Immunity means that after interacting with LEO, you are released without incident, no arrest takes place, medicine, money, and property is not confiscated. You are not handed an "intent to forfeit" document that requires you to post bond for your property. Immunity means you go home; you kiss your significant other on the lips when you get home and you thank the stars above that you are sleeping in your own bed instead of the concrete floor of the local county jail.

Then there is a section 8 protection, which is an affirmative defense. These protections are as real and as important as the protections of section 4, but they occur in a completely different environment that is important to distinguish. The section 8 affirmative defense will take place in Court, before a Judge at an evidentiary hearing (first). This game will start with you waking up from the concrete floor of the county jail. It will include eating bologna sandwiches for breakfast, the mustard jar will have something that looks like an infection growing on of the top. It will have been at least 24 hours since you spoke to your family (72 hours is the maximum), and the return to your normal life will not yet begin until you post bond, get your car out of the lot, which will cost you at least $1000. Then you will have approximately 15 days to post bond on the forfeiture case. This amount is usually 10% of the total value of the property seized. Consider the forfeiture matter a second case, one that will put the burden on you to establish that the items sought to be forfeited were acquired through lawfully earned funds. Lawfully earned funds could be a definition that is in controversy in your forfeiture case.

After the arraignment in your criminal case, usually done by video while you remain in the jail cell, you will be on bond. The conditions will likely include no use of medical cannabis while on bond. You will have to hire an attorney or rely upon the experience of the local court appointed attorney's knowledge of the MMMA. After many months of your case pending and when you find yourself at your evidentiary hearing for your section 8 defense much ado will be made about your bona fide relationship with your certifying doctor. "Is my doctor willing to come to court?" is a good question to ask yourself when engaging in Level 2 and 3 behaviors. Remember if your doctor is not your treating physician, in some jurisdictions you may fail to establish the first prong of section 8. Although the MMMA believes this is wrong, this is how it has played out in many jurisdictions. Awareness of these distinctions is all that is being sought by the MMMA.

The point here is that the different levels of protection between section 4 and section 8 are significant; with the most important factor being one protects you from arrest (Section 4) while the other (Section 8) protects you from conviction in court. The previous policy and guidance provided on the forums for our members has merely embraced a policy to avoid arrest, or Level 1 risk behavior. Moving forward the key factor that will and should be expressed will be to point out and make known what behavior falls into the category that is a Level 1 risk that protects you from arrest, prosecution and any penalty versus what behavior is a Level 2 or 3 risk that offers its protections pursuant to section 8 in court.

No one at the MMMA wants to be responsible for advising behavior that results in a patient or caregiver being arrested. Likewise no one at the MMMA believes patients or caregivers should be arrested. But we are living in a time when the Peoples' law has yet to be implemented as it was intended. There remain many different interpretations throughout the state that are not consistent or absolutely clear, to the extent that all LEO would agree. For example see the twisted interpretation of Court of Appeals cases from the "Legal Updates at the Michigan State

Police," website regarding medical marihuana.** Please note that the MMMA disagrees with these interpretations, but would be acting neglectful if we did not point out these simple facts for our community. We are not taking responsibility for how LEO currently thinks, we disagree with it and have been and will continue to try to change how they think. In the meantime, we are simply reporting it for the benefit and protection of the medical cannabis community.

**

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._99_390580_7.pdf

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._96_382986_7.pdf

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._91_370314_7.pdf

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._89_362839_7.pdf

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._78_276204_7.pdf

http://www.michigan.gov/documents/msp/MSP_Legal_Update_No._69_259822_7.pdf

Soon a day will come when we can all laugh about this but in the interim our community and those that post on the MMMA forums and our membership needs to be made aware and be informed. More importantly they need to act with knowledge, caution, and understanding the various levels of risk associated with the behavior they choose to engage in.

With that being said what once was called the unambiguous compliance policy, or behavior that would conform to those principals has been morphed into what will now be described as Level 1 risk behavior. Strict compliance with section 4 of the act is what will be advised to all who care to listen, as the type of behavior that has the lowest degree of risk of arrest. Everything else is Level 2 or 3 risk. That is to say if an encounter with law enforcement occurs the level of risk of being arrested, and being forced to defend yourself in court is higher. Is Level 2 and 3 risk behavior lawful? I personally think so, but who cares what I think. The analysis here is what we know of how LEO sees it collectively throughout the state. It may not be that way in your jurisdiction and it may be that way for a very good reason, but until all LEO acknowledge it as so, that behavior is just simply of higher risk. Please notice that nowhere in any of this analysis is the word unlawful or illegal used we are simply pointing out that there may be a higher risk of a negative outcome.

So please understand, that no one at the MMMA wants to impede the success of the medical cannabis community growing and thriving, we just want those that care to listen to understand the difference of how the Act is being interpreted by LEO,the courts, and the impact it is having on patients and caregivers.

Knowledge of these distinctions will make for a better understanding of how the lines have been drawn temporarily by the courts and law enforcement, and give our community proper notice of the risks that they may be taking when engaging in the medical use of cannabis.

In closing I hope this helps clear up some of the confusion created earlier, and we all look forward to your input and an educated discussion which evolves this community.

Thank you for your support and understanding.

Michael Komorn

President of the MMMA