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Mmma Questions And Open Discussion On Rules :)


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333.26426 Administration and enforcement of rules by department.

 

 

6. Administering the Department's Rules.

 

( c) The department shall verify the information contained in an application or renewal submitted pursuant to this section, and shall approve or deny an application or renewal within 15 business days of receiving it. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified. Rejection of an application or renewal is considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the circuit court for the county of Ingham.

 

(e) The department shall issue registry identification cards within 5 business days of approving an application or renewal, which shall expire 2 years after the date of issuance. Registry identification cards shall contain all of the following:

 

 

333.26429 Failure of department to adopt rules or issue valid registry identification card.

 

 

9. Enforcement of this Act.

(b) If the department fails to issue a valid registry identification card in response to a valid application or renewal submitted pursuant to this act within 20 days of its submission, the registry identification card shall be deemed granted, and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.

 

 

 

 

 

 

we NEED to clear up some misconceptions of the 20 day rule.

 

ok so..

 

it is like this..

 

people think that waiting 20 days to hear from LARA means they are somehow now more protected than they were before.

 

as a patient..

 

i go to the Doctor with a particular ailment. 

 

Dr Bob sees me.. i have several years worth of records showing my issues..(not to mention scars and current showing symptoms)...and Doc decides i could benefit from cannabis use.

 

he signs and dates my paperwork.

 

from that moment on i am officially legally ok to use or grow cannabis.

 

i can decide to register with LARA or not... it is entirely up to me.

 

i do.

 

i decide to send in my paperwork after spending several weeks thinking about it.. 

 

i will now send in my paperwork to LARA to have them verify my doctors approval... and send me a plastic card.

 

LARA has 20 days to verify it all according to the above rules that apply to them...

 

thank you LARA...

 

i have been able to use cannabis since i left Docs office..that has not changed..

 

the 20 days only matters in that LARA has now checked over my application and i submitted everything correctly..

 

i get a plastic card... now remember... this card does not change anything about my behavior and my expected use of cannabis..

the only thing it changes is how LEO acts if i get asked about my cannabis use...

 

if i have to go see a judge i am back to using my paperwork and the 3 prongs to prove my cannabis use..

 

it is up to each and every person to decide what level of confrontations they are ok with and then protect themselves accordingly..

 

as a caregiver signing a patient i do not know.. i can see possibly waiting the 20 days if the new patient only has paperwork and not a card..that might help ensure i am not being scammed by a person.. but i know my patients and helped most of them with their certification.. i am comfortable immediately.. i was there after all.. i saw Doc sign it.. what would i possible have to worry about?

 

the patient is protected at once upon doctors signature.. or in the case of a caregiver starting to help them then from the moment all parties sign the contract (state application).. it is a bilateral contract which creates a fiduciary responsibility that is reliant on both parties contributing honestly to attain a specified mutual goal.

Edited by mibrains
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I would tend to agree with Mi's analogy.  With a couple of comments.

 

The Card gives you access to Sec 4, assuming you follow the rules, it ends there and you don't go to court.  This means strict compliance and the card is in your physical possession.  The purpose of the card is simply to prevent an arrest by being able to prove to the officer your compliant behavior is protected by the Act.

 

The doctor's certification does not give you any protection by itself.  I allows you to apply for the card.  It also allows you to attempt to defend yourself under Section 8 (as one of the three prongs of Section 8).  Technically, it doesn't even have to be a certification on the state form, it needs to be a statement (using specific language) from a doctor that you qualify and may benefit from the use of cannabis.

 

Neither gives you a 'right' to use cannabis.  What they do is enable you to escape prosecution for doing so.  Section 4 is strong and specific, Section 8 is broad and weak, but doable with a good story and a better attorney.

 

Dr. Bob

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1) If you don't have a card, is it a mistaken arrest? The chief advantage of the card is not being arrested to begin with.

2) Having a card does grant a right to medical use of cannabis, per the Michigan Supreme Court in McQueen:

I am wondering about the use of the word 'right'.  I wouldn't think you could be fired or lose housing for exercising a 'right'.  They may have used the word 'right' just has they have used the word 'prescription' in cases, but I think the thrust of the law is geared to non-prosecution rather than granting a 'right'.

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From page 21 of the McQueen SC Opinion:  

 

"Section 4 creates a personal right and protection for a registered qualifying patient’s medical use of marijuana, but that right is limited to medical use that has the purpose of alleviating that patient’s own debilitating medical condition or symptoms."

 

I think confusion arises because there is a difference between a personal right and a real right.  Life, liberty, and the pursuit of happiness, and the Bill of Rights are real rights.  Sleeping, eating, drinking, using the restroom, and taking medication (including MMJ in Michigan) are examples of personal rights.

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To carve such a fine line, you should be required to fully explain the difference between the two, not just pull a handful of examples from the air or elsewhere.

 

Per law.com:

 

Rights (“real rights”) are an entitlement to something, whether to concepts like justice and due process or to ownership of property or some interest in property, real or personal. These rights include: various freedoms; protection against interference with enjoyment of life and property; civil rights enjoyed by citizens such as voting and access to the courts; natural rights accepted by civilized societies; human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor; and such U.S. constitutional guarantees as the right to freedoms of speech, press, religion, assembly and petition.

 

Personal rights are the rights that a person has over their own body. Among personal rights are associated rights to protect and safeguard the body, most obviously protected by the torts of assault and battery. Furthermore, aspects of personality are protected, such as a person's reputation, by the tort of defamation, and legislation protecting the privacy of individuals.

 

I'm sure the MI supreme court intended to draw a distinction between the right and personal right to use MMJ.  In their opinion, the even italicized the word, "personal," obviously to be clear that they were not declaring that their exists a real/absolute right to use MMJ.   This is also clear in the Koon oral arguments, where the SC was clear that the MMMA did not not "codify a right" to use MMJ.  So looking at the two SC opinions together, you can see that there is a difference between an absolute/real right and a personal right and that the court was careful in their use of the terms.

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Actually, he is on to something there, as there are different levels or types of rights.  I would suspect based on a little research that the 'right' to ingest cannabis into one's body is a 'personal right' but the lack of prosecution for doing so in accordance with the act is a 'real right'.  The analogy may be incorrect, but it does seem to explain the wording.

 

Thanks for clearing that up.

 

Dr. Bob

Edited by Dr. Bob
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Yes, this is the MMMA:

 

We have to ask ourselves why the SC said that patients have a "personal right" to use MMJ, rather than a "right" and what that means in terms of our protections.  Obviously, the SC does not believe  that "protection against interference with enjoyment of life and property" means that a patient has an absolute right to use MMJ, otherwise,  they would have chosen a term other than "personal right."

 

The important thing to consider is that there is a difference various types of rights, and one needs to exercise care (and probably hire an attorney) when trying to determine the difference in their own situation.   . 

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If protection from arrest, prosecution, or any penalty for the use of medical marijuana in accordance with the Act is not a right, I don't know what is. It certainly fits the definition you have quoted above. In addition, all of the regular constitutional rights apply as well. None are given up by the application for or issuance of a card.

 

In Koon, the SC said that a law cannot be applied retroactively unless one of three things happens:  1.) it redresses a grievance,  2.) It states that it will be applied retroactively, or 3.) it codifies a new right.  The court concluded that none of the three applied, and therefore the law was not to be applied retroactively.  So their opinion was pretty clear, they said the MMMA did not codify any new rights.

 

I'm not disagreeing with you by asking this question, but why do you suppose the SC was careful to use and emphasize the word "personal right?"  And why in Koon did they say that the MMMA did not codify a new "right?"

 

Point is that you and I could agree all day long that patients have new "rights" but the SC doesn't agree, so it doesn't matter what we think.

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If protection from arrest, prosecution, or any penalty for the use of medical marijuana in accordance with the Act is not a right, I don't know what is. It certainly fits the definition you have quoted above. In addition, all of the regular constitutional rights apply as well. None are given up by the application for or issuance of a card.

 

Thanks for clearing it up.  After reviewing the comments, I believe I was correct in saying the act does not create a 'right' to use cannabis in that you have a 'right' to free speech.  It does clearly prevent the prosecution for using cannabis under the terms of the act, and people operating under the act have a 'personal right' to use it on themselves.

 

Dr. Bob

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There is lots of distinction without difference in this thread. There is no right delineated under law to eat food or drink water either.

Yes. Because eating and drinking are personal rights that don't require explicit legal authority to do so. You maybe now you understand the difference between personal rights and "rights" Eating is a personal right. Free speech is a " right". Does this make sense to you now?

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Zap, I should say that I think we're on the same page as far as what should be.  A patient's use of MMJ should be considered a right.  But what we saw in the Koon SC proceeding was ruinous.  The SC discussed this with Koon's attorney, and reminded him that a law is applied retroactively if it codifies a new right...if it redresses a grievance/is remedial in nature.  The attorney replied that the law provides a "remedy," a medical one, and therefore is remedial in nature....a complete dropping of the ball. You might recall back in 2009 a district court judge in the UP dismissed a case in which the defendant asserted retroactive protection based on a Dr. rec. that occurred before the law.  The judge reasoned that because MI had a MMJ law years ago and because the legislature failed to act to renew it, that the MMMA, in fact, redressed a grievance/was remedial in nature, and therefore, the prior Dr. rec. was sufficient.  We had a great chance there to have a sound argument presented to the SC that the MMMA was remedial in nature and thus codifies a new right and should be applied retroactively.  Unfortunately, this attorney, while he may have been top-notch in his normal work, was ill-prepared to argue a case in front of the SC.  As a result, the SC never even heard this very good argument that the law should be considered to codify a new right.  This would have afforded patients all sorts of protections, from retroactive application to being free of probable cause for a search based on smell, etc.

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for clarification, using/growing marijuana as a state card holding MMMR registrant in MI will not afford us our 2nd amendment rights to own and bear arms ?

 

and what of this ? 

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card;

 

Having a card is not admitting to using marijuana, any more than a doctor's recommendation is a prescription.

Edited by grassmatch
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until an officer of the law becomes aware of their marijuana use I heard.

Even a person not allowed by the state to grow and use cannabis can do so, until they are found out. With hiding and lying until getting caught out of the question, do you have an answer?

Also, think of it this way: those that get medical marijuana registry identification cards after they purchase firearms do not have to give up those firearms.

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"federal law prohibits anyone who uses a controlled substance from “shipping, transporting, receiving or possessing firearms or ammunition.” how are we as users to digest this?

 

A model for this effort is California’s use of agents to confiscation guns of people identified by the Armed and Prohibited Persons System (APPS) system.

“Any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medical purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”

Notice that persons need not be regular users of the prescribed drug; just the mere possession of a prescription card from a doctor is sufficient to trigger the gun ban. Firearms dealers are further instructed by the ATF:

“If you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have ‘reasonable cause to believe’ that the person is an unlawful user of a controlled substance.”

 

marijuana users just forget about the feds with this one and ignore their law and warnings?  sounds scary

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