Case Laws

[trix]

I'm seeking medical marijuana case laws pertaining to caregivers growing at the patient's home.

Here is a quick summary on what happened; A few months back my home was robbed my neighbor called the police, they came they never did any kind of investigation on the burglary, They assumed that I was just a drug dealer (came from their mouths), my caregiver didn't have room at his home for my 12 plants seeing as he had 4 other patients. so I assigned a room in MY home for him to grow for me now please understand I WAS NOT GROWING THESE my caregiver was, this room was locked with 2 padlocks I had a key and also my CG. I only had a key to this room for access in case of a fire etc...

The police seized the 12 plants that were growing all the grow equipment basically anything that had to do with marijuana, now I know alot of people may say this sounds dumb , but I told the police when they were in the home there was a gun that didn't get stolen keep in mind I didn't want 20 police in a room with me while there was a loaded gun within reaching distance. thats the ONLY reason I mention my firearm which was legal and registered.

Now I'm being charged with felony firearm and felony cultivation, when my home was robbed 3,200 in cash was stolen yes this sounds bad but I have paperwork stating that I had JUST cashed a check for 4,500 dollars from my 401k. so I didn't have money for a top notch lawyer. the lawyer I have retained is a family friend but he is insisting that I will do prison time if he cant get the gun charge dropped, and even if he can get them to make a deal he is saying that i will have felony charges still, alsoI have a notarized letter from my CG stating that these were his I wasn't growing them he was basically taking responsibility for all the marijuana plants. so why am I going to prison????????

My lawyer is saying that because these plants were being grown in MY HOME that they are MY plants and thats that... I just don't understand how I can be in so much trouble for following the law, where does it state in this law that my CG can't grow in MY home? I have seen nothing but I guess this doesn't matter.

My lawyer says to find him case laws that say that this isn't breaking the law. please any help would be awesome and may keep me out of prison....

Trix

[tiredoldman]

you need to hire a REAL lawyer fast, the family friend is not acting in your best interest. He/she obviously hasn't bothered to read the law.

Are you willing to go to jail to keep from spending a few bucks or hurting someones feeling?

[thanks2]

Maybe case law for the affirmative defense(section 8). Read Eric L. VanDussen posts in the legal section. He has posted many cases, but I do not recall one like yours.

[trix]

Believe me this has nothing to do about hurting anyones feelings it has to do with money I'm handicapped currently still awaiting disability, and the money I was living on was stolen during the robbery leaving me with nothing. What I have seen is if the lawyer doesn't have a shut and close case they want 5-10 grand to take the case...

[thanks2]

This thread may be a good start. Read all of Eric's post through the whole thread.

 

http://michiganmedicalmarijuana.org/topic/23775-people-v-provost/

[thanks2]

A list of Eric's posts.

 

http://michiganmedicalmarijuana.org/index.php?app=core&module=search&do=user_activity&mid=14456

[DenturesLost]

The law states that either the pt or cg can cultivate up to 12. Your problem is that YOU were in possession and claiming that the cg was the one doing the cultivating. It's a question of fact for the jury as to whether YOU were in possession. Seems pretty clear you were though as they were in your house so you had ultimate control. There isn't much in the way of binding caselaw regarding the MMA yet. Certainly nothing that could help you with this issue.

 

You will likely need to use the AD to show that to maintain the uninterrupted supply you had to have the plants at your place.

[bobandtorey]

Believe me this has nothing to do about hurting anyones feelings it has to do with money I'm handicapped currently still awaiting disability, and the money I was living on was stolen during the robbery leaving me with nothing. What I have seen is if the lawyer doesn't have a shut and close case they want 5-10 grand to take the case...

 

Am so sorry as to what happen to you i hope you find another Lawyer be for you give any one Money i would make sure you go and put a bond up for your thing you only have i think 20 days

and write down everthing you can about how it happen

[Kingdiamond]

How dare your caregiver put you in this situation the blame lies with him and he should be the one getting you an attorney for putting you in harms way as your caregiver It was on him to posses and grow your plants at his residence where you would both be legal.

 

If you don't get a attorney your likely going to be forced to take a plea deal sell something borrow money do whatever it takes please DO NOT go into court unrepresented by legal council .

[Mememe]

You would probably need a rental agreement where he is renting your space.

[peanutbutter]

File a change of caregiver form .. ten bucks.

 

You then get a new card that says you can have plants.

 

That's basically what you did when you terminated your agreement with your old caregiver.

 

You both agreed that they were not going to be growing for you. Simply formalize what the two of you had already agreed to. That is you should have the plants and not them.

 

It takes a while for a new card to be issued.

[Michael Komorn]

It sounds to me like you are going to have to litigate the case. That means when the persecutor says no to any deals or resolving the case without a jury trial, you are going to have to put on the gloves. If you are in compliance according to section 4, there should never have been an arrest. The caregiver who who was possessing the plants, while they were stored in a locked contained room, was not committing a crime, nor where you. The issue of the gun, has been an problem. YOu are charged with the crime of felony firearm. This charge alleges that you were using the firearm in the commission of a felony, to wit the manufacturing of marihuana. To prove you guilty the prosecutor has to prove that you were using the gun, a nexus/ connection/ with the manufacturing of the marihuana. Like many cases you are finding that the prosecutor is not recognizing the law and the protection of the mmma. When this happens, the only choice you would have is to file the appropriate motions, motion to dismiss pursuant to section 4, and motion to dismiss the felony firearm charges as well. If the Judge does not dismiss, then your next choice is to take it to a jury trial. Present your case to the community, the voters, and let them make a determination if you are in compliance with the act or not. Also I believe that the caregiver will need to come forward, identify him or herself. This should be another piece of evidence that can be used effectively to assist you in your case.

I would need more information, such as weather the preliminary exam was held or waived, but from the facts that you have explained it would seem that you are protected, and i wold not plead guilty to anything at this time, or until you have exhausted your protections and remedies under the law. If you want to discuss this further, please call me. 18006563557.

i hope this is a little helpful, and gives you some hope that you have a basis to stand and fight.

[trix]

Thank you for your replies,

You all have been so helpful, always have been since joining the site, I hope that when this issue is resolved

1) I'm not in prison

2) I will be able to help the mmma community better understand the law for the good or the bad on a subject I will have been school on first hand by LEO/DA

I will be sure to keep you all posted on how things develop in the future.

Thank you all so much for your help again!!

Trix

[phaquetoo]

The law states that either the pt or cg can cultivate up to 12. Your problem is that YOU were in possession and claiming that the cg was the one doing the cultivating. It's a question of fact for the jury as to whether YOU were in possession. Seems pretty clear you were though as they were in your house so you had ultimate control. There isn't much in the way of binding caselaw regarding the MMA yet. Certainly nothing that could help you with this issue.

 

You will likely need to use the AD to show that to maintain the uninterrupted supply you had to have the plants at your place.

 

 

um listen to me! you have a lease with your c.g, he is leasing the room from you, do you own your own home? you can lease a room in your home I believe( you can get forms at an office supply store) fill in the blanks!

 

Peace

FTW

Jim

 

I beleive a c.g can have a p.o box as an adress!

[phaquetoo]

Sorry I want to add you as a the patient can have access to the locked leased room!

[lawyercaregiver]

IMHO (not legal advice etc) this is NOT correct. The patient may NOT have access to the locked enclosed facility if he has a caregiver. Unless it says on your card "Authorized to possess plant...Yes" then you are screwed under section 4 because you are NOT authorized to possess plants.

 

I suppose you can argue that your were not technically in possession because your CG was leasing your room and you were only authorized to enter the room in case of an emergency but I sense a summary disposition on that issue (that means you lose completely and don't get to argue that to the jury).

 

However, this is a splendid case for a section 8 affirmative defense.

 

There is no case law on this issue yet. Welcome to the land of THE TEST CASE.

 

Finally, get yourself a REAL marijuana lawyer like Komorn or Abel or at least somebody who has taken the time to read the freaking law.

[bobandtorey]

The AD Is good for sure but as with are case the PA said we had to much because the AD does not give a plant count and that is what they say not me

when we were inn court the judge kept telling the Lawyers that we had to much and the Lawyers said look at section 4 and the judge said if i look at section 4 it says you need a card

[DenturesLost]

It sounds to me like you are going to have to litigate the case. That means when the persecutor says no to any deals or resolving the case without a jury trial, you are going to have to put on the gloves. If you are in compliance according to section 4, there should never have been an arrest. The caregiver who who was possessing the plants, while they were stored in a locked contained room, was not committing a crime, nor where you.

 

The big IF.

 

But it would seem from the recitation of the facts that there was no such compliance. The definition of enclosed locked facility states that the facility be accessible by a cg OR a pt. Not a cg AND a pt. Not a cg AND/OR a pt. Here the cg was given authorization to possess the plants but both pt and cg had access to them.

 

This looks like an AD case.

[Southern Cross]

I'm seeking medical marijuana case laws pertaining to caregivers growing at the patient's home.

Here is a quick summary on what happened; A few months back my home was robbed my neighbor called the police, they came they never did any kind of investigation on the burglary, They assumed that I was just a drug dealer (came from their mouths), my caregiver didn't have room at his home for my 12 plants seeing as he had 4 other patients. so I assigned a room in MY home for him to grow for me now please understand I WAS NOT GROWING THESE my caregiver was, this room was locked with 2 padlocks I had a key and also my CG. I only had a key to this room for access in case of a fire etc...

The police seized the 12 plants that were growing... <snip>

Trix

 

You don't state here whether you have an MDCH issued card or a copy of your application paperwork. On your application you choose who is allowed to possess the plants, you or your caregiver. If you showed your card or paperwork to the cops stating that you were allowed to posses the plants then they are supposed to presume the cannabis was for medical use and they should have investigated the burglary.

 

If you designate your caregiver to possess the plants, but you had a key to the grow room in your home then you were in possession of the plants and it would take a great attorney to prove otherwise. It would be hard to make Section 4 protections apply in your case IMHO.

 

You seem to meet all of the elements of a Section 8 Affirmative Defense and any decent lawyer should be able to get the charges dismissed at an evidentiary hearing. Then the other charge would go away.

 

Basically all you need is

• 
   
  
• 1. a physicians recommendation for you to use cannabis as medicine
  

• 
   
  
• 2. not have more plants than are necessary to treat your condition (some courts [not Oakland County] recognize the 12 plant limit of Section 4)
  

• 
   
  
• 3. you weren't doing anything other than "medical use" of the cannabis.
  

-------------------------

Michigan Medical Marihuana Act

 

Section 8. Affirmative Defense and Dismissal for Medical Marihuana.

 

(a) Except as provided in section 7, a 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 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;

 

(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; and

 

(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.