Is Selling Medical Marijuana To More Than Five Patients Legal Now?

[+Malamute]

Well, let's put up a couple definitions of what an "Affirmative Defense" is:

 

 

A defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Self-defense, entrapment, insanity, and necessity are some examples of affirmative defenses. See, e.g. Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998)

 

 

An affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability.

[GregS]

I think you just might be equating legal with excusable. That would be a mistake in reasoning.

Where did I say it is legal?

[+Malamute]

I mean, we aren't reinventing the wheel here. ;-)

[GregS]

Well, let's put up a couple definitions of what an "Affirmative Defense" is:

 

 

A defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal or civil liability, even if it is proven that the defendant committed the alleged acts. Self-defense, entrapment, insanity, and necessity are some examples of affirmative defenses. See, e.g. Beach v. Ocwen Fed. Bank, 523 U.S. 410 (1998)

 

 

An affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so, and therefore should be excused from all criminal liability.

And it is an important codified part of the MMA.

[+Malamute]

Dam Skippy...

[pic book]

To answer topic question,... not it is not legal nor has it ever been.

 

A Sec. 8 Affirmative Defense, even if successful and rare as it has been to be so, does not make it "legal". It means you were able to get the criminal charges against you dropped due to extenuating circumstances and in accordance with the 3 principles of the Sec. 8 defense.  Sec. 8 does not make anything legal, It is merely a justified crime you have committed if proven and accepted by the Judge.

do you consider yourself a radical?

[phaquetoo]

well gm I can understand more, I already knew you were not for real on asking that original question!  You have a few of the best minds in this thread to discuss this with now, best of luck! ding ding ding,  round 3!

 

Peace

 

p.s I dont consider my self one of few lol, You were just trying to get rest to bite, now he is enough to discuss this with, than add a few more like minded or not and you have your hands full bro, bawahaha!

[Restorium2]

Where did I say it is legal?

When you said section 8 was no less legal than section 4.

I'm afraid that is a non-sequitur HL. Sec. 8 is no less legal than sec. 4, which has been ruled in the courts a carved out protection for illegal acts.

[GregS]

When you said section 8 was no less legal than section 4.

Are you suggesting that abiding by sec. 4 is legal? It "has been ruled in the courts a carved out protection for illegal acts."

 

Help me out a little. What decision was that? I cannot bring it immediately to mind.

Edited April 8, 2014 by GregS

[garyfisher]

bla bla bla *insert a bunch of opinions here about what is legal and what isn't*

People sure like beating a dead horse around here.

[phaquetoo]

Are you suggesting that abiding by sec. 4 is legal? It "has been ruled in the courts a carved out protection for illegal acts."

 

Help me out a little. What decision was that? I cannot bring it immediately to mind.

Abiding by sec. 4 is legal, abiding by sec. 8 is for ilegal activity to have a defense if it falls into aiding in a pt's need for mm.

 

Peace

[+Malamute]

I do not consider myself a radical.

[phaquetoo]

I do not consider myself a radical.

IMPO I would have to say far from it lol.

 

Peace

[Highlander]

bla bla bla *insert a bunch of opinions here about what is legal and what isn't*

 

People sure like beating a dead horse around here.

 

The horse isn't nearly dead.  We have yet to see case law that answers the question as to how available a Sec 8 defense will be to a CG who sells at a farmers' market, on craigslist, etc. and whether or not entrapment applies.

 

You hear "blah, blah, blah."  I hear some of the most knowledgeable/informed people in the state discuss the law.  For people who care to follow along, they might learn something or get some ideas about what risks they are willing to take.  This board has been the birthplace of many quality discussions and ideas.

[Restorium2]

bla bla bla *insert a bunch of opinions here about what is legal and what isn't*

 

People sure like beating a dead horse around here.

I hear ya. I just got interested in it again when thinking about the entrapment and fake cards issue. Thinking a few moves ahead ..... Should just sit back and watch I guess. People get nervous..lol.

[Highlander]

I hear ya. I just got interested in it again when thinking about the entrapment and fake cards issue. Thinking a few moves ahead ..... Should just sit back and watch I guess. People get nervous..lol.

 

I don't recall any discussions of this exact topic (entrapment and Sec. 8) until just recently.  I think maybe you were the one who first advanced this discussion.  This is more or less a new angle, and I think it deserves some analysis.

[Restorium2]

I don't recall any discussions of this exact topic (entrapment and Sec. 8) until just recently.  I think maybe you were the one who first advanced this discussion.  This is more or less a new angle, and I think it deserves some analysis.

It all started on April Fools Day when the Michigan Supreme Court made that entrapment ruling.

[GregS]

I don't recall any discussions of this exact topic (entrapment and Sec. 8) until just recently.  I think maybe you were the one who first advanced this discussion.  This is more or less a new angle, and I think it deserves some analysis.

I continue to insist that added protection can be available with the documents I offered not so long ago. IF a cg were to use those with a police officer and said cg is subsequently arrested, I think it would be considered impermissible entrapment, possibly pending a sec. 8 dismissal.

Edited April 11, 2014 by GregS

[trichcycler]

maybe it would be a dead horse if people were still not confused ?  Maybe it would all be for fun, and amusing, if people were not being jailed. The dead horse has not been beaten enough until people stop going to jail for misunderstanding these rules. I hear caregivers still say selling at the markets and clubs is legal, and others still warning them of arrest. smart folks still on both sides of the rules is interesting, and worthy of a horse whoopin'.

[+Malamute]

Entrapment is a complete defense to a criminal charge, on the theory that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

 

Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932). Nor does the government's use of artifice, stratagem, pretense, or deceit establish inducement. Id. at 441. Rather, inducement requires a showing of at least persuasion or mild coercion, United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); pleas based on need, sympathy, or friendship, ibid.; or extraordinary promises of the sort "that would blind the ordinary person to his legal duties," United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991). See also United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984) (inducement shown only if government's behavior was such that "a law-abiding citizen's will to obey the law could have been overborne"); United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989) (inducement shown if government created "a substantial risk that an offense would be committed by a person other than one ready to commit it").

 

Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry focuses upon whether the defendant "was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime." Mathews, 485 U.S. at 63. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: "the ready commission of the criminal act," such as where a defendant promptly accepts an undercover agent's offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.

[+Malamute]

It's definitely an interesting topic.

 

 Like i said, i think i can go on and on about entrapment..., but the scales of Justice are tilted against the drug war in general and it has eroded many privacy principles that previously existed.

[medmanmike]

I continue to insist that added protection can be available with the documents I offered not so long ago. IF a cg were to use those with a police officer who then arrests the cg, I think it would be considered impermissible entrapment, possibly pending a sec. 8 dismissal.

GregS, please refresh our memory re "the documents I offered ..."

[GregS]

Do not overlook the supporting documents listed at the end. This is not legal advice and should be run by an attorney. They are intended as supplemental protection to establish two of the three required sec. 8 elements along with registry in light of the fact that patients and caregivers have been hauled into court despite being otherwise compliant. There are rules of evidence that may be necessary to have them admitted into evidence. 

 

Patient/Caregiver Agreement to Engage in the Medical Use of Marijuana

I,______________________________________, swear and affirm that I am a patient under the Michigan Medical Marijuana Act, Initiated Law 1 of 2008.

__Dr._____________________________, a physician authorized under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556, physician license I.D. number____________________ ,has stated that in the physician's professional opinion, on or about (date)___________________________, and 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, that I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the debilitating medical condition or symptoms associated with the debilitating medical condition (copy attached) .

Or:

__A registry card duly issued by the State of Michigan Department of Licensing and Regulatory Affairs (LARA) , number______________________(copy attached), has been issued to me which attests to a physician's recommendation that in the physician's professional opinion, and after having completed a full assessment of my medical history and current medical condition made in the course of a bona fide physician-patient relationship, I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the debilitating medical condition or symptoms associated with the debilitating medical condition.

I hereby designate_______________________________ as my caregiver under that law, and agree to conform to the Act in the medical use of marijuana.

I, ______________________________________, swear and affirm that I am at least 21 years of age and have agreed to assist with the above named patient's medical use of marijuana. I have not been convicted of any felony within the past 10 years and have never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.

Confidentiality: Each party agrees and undertakes that it shall not, without first obtaining the written consent of the other, disclose or make available to any person, reproduce or transmit in any manner or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information, save and except that both parties may disclose any Confidential Information to their legal advisers and counselors for the specific purposes contemplated by this agreement. Presentment or disclosure of this information is not prohibited as required by law or in any prosecution pertaining to the medical use of marijuana.

For the purpose of this Agreement, Legal advisers and counselors shall mean, with respect to any party, any person licensed to practice at law, or any paralegal, legal assistant, or other person directly supervised by an attorney at law who is ultimately responsible for any and all work product.

Subscribed and sworn before me this date: ____________________________

Patient sign here: _________________________________

Subscribed and sworn before me this date: ____________________________

Caregiver sign here: ________________________________

/s/_________________________________

Print Notary Name: ________________________________

Notary public, State of Michigan, County of _____________________

My commission expires ___________________

Acting in the County of ___________________

Supporting documents are here: https://sites.google...attredirects=0, and here
https://sites.google...?attredirects=0

Edited April 10, 2014 by GregS

[Natesilver]

Unregistered caregiver to patient transfers are covered under section 8. Not advisable to undertake, but it's the law.

[trichcycler]

I'm not sure that protection from arrest is also offered(8) with an unregistered person selling marijuana to a registered (or not) patient.

Edited April 11, 2014 by grassmatch