If You May Need To Rely On The Affirmative Defense Just Be Sure You Qualify First.

[CaveatLector]

Think you're in the clear to rely on just a cetification or recommendation and employ the affirmative defense after the recent Sup Ct opinions in King and Kolanek? Thing again!

 

If that is your plan, to rely on your certification or recommendation, then you may be in for some trouble and a rude awakening. So let's clear this up so you make an informed decision.

 

First off, if you don't have a card and are relying on your certification only then plan on being arrested. Plan on spending up to 48 hours in jail before be arraigned and bond being set. Then plan on either getting a court appointed attorney or spending a lot on a retained attorney.

 

Then what? Well, if it's a felony you're charged with, then expect to go to your preliminary examination. If the judge there will hear your aff def then maybe s/he will dismiss the case. But maybe not. If not, then plan on going to circuit court. It is there that your attorney will file and argue the aff def. Expect to either subpoena your doctor to testify (and tinkle him off) or expect to pay him as an expert witness. Also expect to be able to prove that you needed x ounces (or plants) to ensure a continuing supply.

 

Lastly, and most importantly, be prepared for proving the heightened requirements of the sec 8 defense. Keep in mind that the administrative rules require less of a dr for the certification than sec 8 requires for an aff def. What does that mean? It means that you could end up in circuit court with a signed cert or card and still be convicted.

 

The administrative rules state:

 

(22) “Written certification” means a document signed by a physician stating the patient’s debilitating medical condition and stating that, in the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

 

That written certification is what is needed for a card under section 4.

 

On the other hand, Section 8 requires:

 

(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;

 

So section 8 requires a full assessment of the patient's history whereas the rules don't require that for a card. Section 8 also requires the bona fide dr/pt relationship but that seems a foregone conclusion if a dr signs the certification.

 

At any rate a bare bones section 4 certification probably isn't adequate to cover for a section 8 defense. So if you have your card and are relying on that, or a recommendation or certification, make darn sure that your Dr made a full assessment of your history. In other words, a few months of medical records may be adequate for a card but not so much for a sec 8 defense.

 

So what does all this mean? It means you should make sure you get that full assessment of your history and make sure you have a bona fide relationship (don't buy a cert. from the back of an appliance store!)

 

Lastly, to qualify all of this, I will concede that sec 4f requires the same thing as sec 8 in order for a doctor to be immune from prosecution but those elements in sec 8 are not all required to get the card anywhere else. So, a doc may lose his immunity from prosecution for not conducting a full assessment of your history BUT that doesn't mean you wouldn't be entitled to a card. In other words there is a hypothetical situation where a doc could certify you and you get your card and your card is valid but the doc isn't immune from prosecution.

 

The point here is don't be tricked into thinking you are safe and able to utilize sec 8 just because you have a card or a cert. I can easily see this being the next bone that the prosecutors pick if we start seeing sec 8 defenses!

 

Lastly, don't be naive and think that you can scream sec 8 and the prosecutors will drop everything. I personally have seen prosecutors continue to pursue cases that were bound to be dismissed due to constitutional violations. They won't come out and say it but I think it is clear that they feel if they make the defendant pay through the nose to the atty by drawing out the case then that is punishment in itself even if the case is later dismissed.

 

There is more to sec 8 than the issues presented here but you need to be mindful of the presented issues in particular. Will prosecutors accept the card or a cert or recommendation as fulfilling the medical and dr requirements of sec 8? Maybe. In fact I'm sure a lot would but don't be the one fighting this exact issue and left holding the bag for 3 years as it is appealed up to the Sup Ct.

 

If you have your card and think it wouldn't hurt to grow 2 more plants and expect your card will cover for you in regard to the medical requirements of sec 8 then at least be sure you have covered yourself in regard to ALL of the elements required in sec 8.

 

 

Be safe. Do smart things.

Edited June 27, 2012 by CaveatLector

[Dr. Bob]

Excellent back to the original topic. Let's see if we can stay here.

 

Dr. Bob

[Dr. Bob]

Rather than reading them to develop arguments to defend what you are doing as legal, read them instead in a naive way, or even in a prejudiced way. If you are in compliance with a naive reading of the law, and are erroneously arrested, you will have a great case in court if you also stay silent during the arrest. If you intend to depend on section 8 to defend yourself in court should the unthinkable happen, make sure that you understand how law enforcement and the courts will read it.

 

What a lucid, sound observation! Perhaps coming from you Zap, people will listen for a change.

 

Dr. Bob

[Dr. Bob]

You fight the charges best by knowing what is required of you and doing it before you are charged. Not only don't you end up in court as often, you tend to win when you do, and the general public sees us playing by the rules.

 

Dr. Bob

[GregS]

Something else to consider when making the determination whether to rely on either secton 4 or section 8 is the caveat that there is pending legislation intended to revoke the privacy protections presently in the law, which has the potential to expose registered people. Rather than go off on a tangent, it is best to recognize it for the fact that it is.

[Dr. Bob]

Sorry, but if you are relying on the section 8 defense, you waive your privacy, since your condition is the basis of your claim of immunity.

 

The Nicholson case was interesting in that lack of paperwork physically on the patient does not give immunity from arrest, but bringing it to the court later should result in the dismissal of the charges. That really didn't have anything to do with the thread, but it was brought up and therefore addressed.

 

Dr. Bob

[GregS]

The underlying question that you are getting at, I believe, is one we posed to the Legislators in the recently posted talking points on this issue, which is, is one more likely to arouse the attention of the police, risking arrest and prosecution, by registering and being identified as a patient or a caregiver, or by keeping their medical information and choice of treatment private while relying on the protections of the affirmative defense ?

 

In addition, the recent Nicholson opinion from the COA throws another wrench into the decision-making process: the possibility of a section 4 defense even after an illegal arrest.

 

http://coa.courts.mi..._306496.OPN.PDF

 

It can be argued that vast numbers of medical users who go cannabando will overrun the courts to the point that the law finally has to say enough.

 

Nicholson will be determined with a section 8 defense. The COA remanded, with the ruling that the lower court consider whether he is now in compliance with all requisites in accordance with the act. Because the court has ruled that not having proof of registry at the place of medical use is not compliant, there is no other way to go, except to plead guilty or appeal.

Edited June 27, 2012 by GregS

[CaveatLector]

It is important to understand that use of the aff def is not a given. You must qualify for the def. The point of this thread is to be sure you are in a position to qualify for a defense. Having a card won't necessarily qualify you. See the discussion in the initial post.

[GregS]

It is important to understand that use of the aff def is not a given. You must qualify for the def. The point of this thread is to be sure you are in a position to qualify for a defense. Having a card won't necessarily qualify you. See the discussion in the initial post.

 

And that is, after all the dust settles and the noise stops, the point in considering whether or not to bother with it..

[Dr. Bob]

I would think that not having your paperwork on you at the point of use would simply bring you to the attention of the courts, you have been arrested and I am sure they would be tempted to invoke a section 8 inquiry 'since you are already there'. I believe the chance of that would be reduced if you just kept a copy of your paperwork with you any time you had cannabis on you. Might save you some trouble. Certainly would reduce the chance of you being arrested.

 

Dr. Bob

[Dr. Bob]

You are right, but keep in mind that I was talking about the attention of the POLICE when speaking of keeping one's medical condition private by staying unregistered, and of the probability of interactions with the police possibly leading to arrest.

 

A few things seem crystal clear to me:

1) Once the police have access to the registry in their cars, in combination with the current state of Koon, the chances of being arrested simply for being in the registry increase rather than decrease

2) If an unregistered person has a police encounter with marijuana involved, they are nearly 100% likely to be arrested

3) A registered person appears to have significantly more options in court than an unregistered person, in addition to the fact that they should not be arrested in the first place, even if they possess cannabis

 

It is a personal decision, of course, but immunity from arrest is very, very important to me; not just the actual immunity but the claim of immunity, which I like to call "legal." I guess I am one of those people that has a hard time calling something I know I can be arrested for "legal." All unregistered persons are essentially deciding that immunity from arrest is not important enough to them to risk the potential of abuse.

 

Good post, but I wonder how often cops are going to go through the trouble of keying all that information into liens twice (the current system requires that, I don't know if they are going to integrate them to pull up both with each stop). Perhaps if they are insistant on having the access, we have grounds to be insistant that they be required to specifically quiry the system with respect to MMJ status rather than just get a print out of everything. Might cut down on the 'screening' inquiry.

 

Dr. Bob

[Dr. Bob]

Yes, I have heard this argument since mid-2009. The fact that it is so naive and unconvincing is tragic, but true nonetheless. Keep in mind that vast numbers of people being arrested and "overrunning the courts" has not, to this point, caused them to say uncle even once. I am starting to think they like it or something.

 

Please, please, vast numbers of people: do not get arrested thinking you will clog the courts and bring the drug war to its knees. The drug war feeds off of defendants, and the more we give them the more power they have.

 

Get people arrested as a solution to the problem? And that relates to the thread how? Each justifying drug team budgets, court staffing, etc. You hit the nail on the head Zap, this is a 'feel good' concept that fails to think things through (it sounds good but actually helps the bad guys).

 

Dr. Bob

Edited June 27, 2012 by Dr. Bob

[Dr. Bob]

My guess is that they will use the ability similarly to their current ability to search your car with probable cause: they will use it anytime they think they "smell marijuana" on a traffic stop, which as any cannabis user that has been profiled knows, usually happens if you are not white, or have not cut your hair recently enough, or if you have tattoos or bumper stickers, etc.

 

They will likely use it more, since they will be able to query it before searching the auto, and if it does not come up with a hit, they can easily decide not to search the auto and avoid having to do any paperwork.

 

I admit, it sounds all backwards from what the ACLU and MSP were saying it was to be used for, but that is how I think it will be used in practice.

 

That is why we need to make it a little more work for them, to discourage routine 'screening' inquiries. Might be an approach that works. Require an extra step or two, or some paperwork showing justification. At the very least, the Liens system should do some tracking of which cops are using it and how often, might come in handy later to look for abuse and get things tossed out in the hands of a good defense attorney.

 

Dr. Bob

[GregS]

Are you suggesting that the change in the law to revoke our privacy protections found in the plain language of the law is possible? Likely? Assured? Not gonna happen?

[GregS]

The police no longer require probable cause to search your vehicle. They have established reasonable suspicion, an unconstitutional term, as justification. See State of Ohio v Terry.

[GregS]

I have read the bill.

 

That is the single best argument against registry. The legislature might be bright enough to see the futility in bringing it on.

 

Nah.

Edited June 27, 2012 by GregS

[CaveatLector]

The police no longer require probable cause to search your vehicle. They have established reasonable suspicion, an unconstitutional term, as justification. See State of Ohio v Terry.

That is simply not true. A search requires probable cause, subject to certain limited exceptions (eg: weapons within reach, etc).

[GregS]

There have been countless searches performed based on Terry.

[CaveatLector]

There have also been countless searches of homes without a warrant and based on exigent circumstances. But that doesn't mean that probable cause and a warrant are no longer required to search a home. It's called an exception. It isn't a general rule.

[GregS]

Per Wikipeda:

 

The Court most recently cited Terry v. Ohio in Arizona v. Johnson. It ruled 9-0 in favor of further expanding Terry, granting police the ability to frisk an individual in a stopped vehicle if there is reasonable suspicion to believe the individual is armed and dangerous. This fulfills only the second prong of Terry (the first prong—reasonable suspicion that a crime has, is, or will be committed—is fulfilled by whatever traffic violation prompted the pull-over). According to Whren v. United States, any traffic violation, no matter how small, is legitimate basis for a traffic stop.

[GregS]

Ibid

 

Terry set precedent for a wide assortment of Fourth Amendment cases. The cases range from street stop-and-frisks to traffic stops in which pat-down searches could be conducted on the driver or passengers. Relevant cases are Ybarra v. Illinois, Minnesota v. Dickerson, Florida v. J. L., Muehler v. Mena, Alabama v. White, Pennsylvania v. Mimms, Maryland v. Wilson and Brendlin v. California. In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court ruled that car compartments could be constitutionally searched if an officer had reasonable suspicion that the suspect is armed and dangerous. Thus the compartments are viewed as an extension of the suspect's person. This is known as "frisking the lunge area," as an officer may protect himself by searching any areas the suspect could grab a weapon from.

[Dr. Bob]

There have also been countless searches of homes without a warrant and based on exigent circumstances. But that doesn't mean that probable cause and a warrant are no longer required to search a home. It's called an exception. It isn't a general rule.

 

Searches and section 8 defense? We getting hijacked again?

 

Dr. Bob

[CaveatLector]

Quoting wikipedia, the famous source for all vetted legal information, ain't gonna cut it. Terry frisks have long been acceptable and are only designed to protect against weapons. If a cop feels a squishy baggie in your pocket he cannot go further under a Terry frisk. There is a plethora of cases further defining Terry stops and many have told us that it isn't a free-for-all. There are instances where a cop can search the "wingspan" of an auto for safety reasons but it is by no means permissble to do an all out search as you are suggesting. FYI there was a case that came out in the past 2 or 3 years that further restricted a Terry stop. I don't remember the name but I do see it is conveniently left out of your wiki cite, either by you or the original writer.

 

I have personally been frisked and a cop felt something in my coat pocket. It was something small and he asked what it was. I didn't know off-hand and I told him he could look, knowing full well it wasn't something illegal. He declined. Afterwards I checked and it was chapstick. I think the majority of cops don't go beyond their limitations in regard to a Terry frisk. Do some? Yes. Does that mean they don't need probable cause? No. There will always be cops who break the law.

[GregS]

Quoting wikipedia, the famous source for all vetted legal information, ain't gonna cut it. Terry frisks have long been acceptable and are only designed to protect against weapons. If a cop feels a squishy baggie in your pocket he cannot go further under a Terry frisk. There is a plethora of cases further defining Terry stops and many have told us that it isn't a free-for-all. There are instances where a cop can search the "wingspan" of an auto for safety reasons but it is by no means permissble to do an all out search as you are suggesting. FYI there was a case that came out in the past 2 or 3 years that further restricted a Terry stop. I don't remember the name but I do see it is conveniently left out of your wiki cite, either by you or the original writer.

 

I have personally been frisked and a cop felt something in my coat pocket. It was something small and he asked what it was. I didn't know off-hand and I told him he could look, knowing full well it wasn't something illegal. He declined. Afterwards I checked and it was chapstick. I think the majority of cops don't go beyond their limitations in regard to a Terry frisk. Do some? Yes. Does that mean they don't need probable cause? No. There will always be cops who break the law.

 

What were the officer's real and articulable facts that he was required to establish before the search? Did he have reason to believe you were armed? A pat down is a search.

Edited June 27, 2012 by GregS

[CaveatLector]

What were the officer's real and articulable facts that he was required to establish before the search? Did he have reason to believe you were armed? A pat down is a search.

Oh I wasn't aware that a Terry frisk was a search. I thought it was just a police officer's mating ritual.

 

It doesn't matter what his reasonable articulable suspicion was for the point being made in the foregoing example. Are you next going to ask whether I was even sure he was a cop, and thus able to detain me at all?