Hartwick And Tuttle Ruling Published

[Michael Komorn]

The Hartwick and Tuttle rulings were posted by the Michigan Supreme Court today. We are reading and absorbing the rulings, and will discuss here on the thread. Please read, comment, question.

 

P v Hartwick and Tuttle.pdf

[+Malamute]

Ugh.

 

Not good.

[+Malamute]

This decision is pitiful.  Full of flaws and factual incorrectness. 

[blackhorse]

Read the ruling and will wait for Michael's opinion. Need to read again.

[t-pain]

it is so, so conflicting.

fun how they arent looking for "absurd results" anymore. now its all the fault of the initiative process. i can just imagine zahra saying "like if we just got rid of that pesky thing called democracy- the peons dont even know how to write laws that survive the court of appeals, hah!"

 

patient cert = MIGHT be evidence ?? why didnt they just rule on it?

 

i'd like to see a seperated patient and seperated caregiver flow charts made. what document or card is good for what prong.

 

because now there are TWO SETS of THREE PRONGS to section 8!

 

and now you have to prove immunity/prima facie for each count.

 

3 prima facie prongs so a JUDGE can decide if that information goes to a jury.

AND THEN 3 preponderance of the evidence prongs, that you have to hurdle over and without that the jury will be instructed to vote guilty.

 

btw i think defendants can try for another section 8 hearing. dunno if judge will allow it, but i dont see anything in this ruling that bars it. it just says they didnt meet the sec8 evidence (because this is new case law), it does not say that they are banned from having another sec8.

 

too bad they didnt rule a bunny muffin about anything in the briefs. 333.8109 i was interested in. too bad about confidentiality, i guess a bunny muffin ton of court cases are coming up- years and years of more litigation. section4 and section8 will still be denied, as they've been ever since people v king. judges dont give a bunny muffin.

[keylan]

I don't see many folks wanting to be caregivers after this.

 

How is a caregiver supposed to know if a patients relationship with a MD is good as far as the law is concerned ? How is a patient to judge this? Nobody goes to a doctor and asks themselves now do I have a bonified patient relationship with that doctor. A patient trusts that the MD he or she sees is licensed by the state and therefore is judged capable of delivering the care they need. Nobody asks that a heart patient make sure they have established a bonified patient relationship with the heart surgeon or a patient with a broken hip does not have to establish such with an ortho surgeon ect.

 

 

Big money wont have to do what they are requiring patients and caregivers to do. Bet the dispensaries get a pass on these rules. They cant possibly comply.

 

If the doctors are issuing recommendations without fulfilling what the state claims are bonified relationships than why are they not going after the MDs issuing the recommendations -Ha ! easier to nail the sick.

 

Time to look into moving

[bobandtorey]

because going after the MDs they have the $$$ to fight the courts and then again the Courts Win $$$$ 

 

Guess i won't be growing cannabis for medical reasons Per the MMMA Law 1 of 2008 Voted in by the people of this Great State 

 

Arrest our going to go way up and i'll be going to court more often in support of others i'm going to need a gas card instead of a medical marihuana card 

[GregS]

At first blush it appears we are back to contractual agreements between patients and caregivers specifying and documenting a physician's statement in a bona fide relationship and spelling out the agreement on the part of the caregiver to assist in the medical use for the purpose of treating or alleviating an authorized medical condition or conditions in addition to or in lieu of a card or state application whether a court permits a card in evidence or not, and are absolutely necessary in sec. 8 pleadings. This decision points up the need to have evidence beyond a card. I am encouraged by the Court's statement that caregivers need not know the patients' conditions, names of physicians, and amount needed. There is some vindication in that.

Edited July 28, 2015 by GregS

[Restorium2]

^^^ I am encouraged by the Court's statement that caregivers need not know the patient's conditions, names of physicians, and amount needed. There is some vindication in that.

 

The court said that if a caregiver has one transfer to anyone who is not totally qualified in every way, including how they used the cannabis, their whole business with cannabis is illegal(with all their patients). For this reason I think I would want to know just about everything about a patient's condition before I became their caregiver.

 

For a lot of us the court's ruling didn't change a thing. The doctors I use were already complying. No fuzzy area transfers pretending they are legal. Know the difference between legal and illegal, keep them separated.

[GregS]

^^^ I am encouraged by the Court's statement that caregivers need not know the patient's conditions, names of physicians, and amount needed. There is some vindication in that.

 

The court said that if a caregiver has one transfer to anyone who is not totally qualified in every way, including how they used the cannabis, their whole business with cannabis is illegal(with all their patients). For this reason I think I would want to know just about everything about a patient's condition before I became their caregiver.

 

For a lot of us the court's ruling didn't change a thing. The doctors I use were already complying. No fuzzy area transfers pretending they are legal. Know the difference between legal and illegal, keep them separated.

All the more reason to have everything spelled out and properly concluded. The section alluding to a card should be stricken given this ruling, despite that it is absurd to deny one meets evidentiary requirements in sec. 8 cases. In all cases an agreement is, I think, now more necessary to supplement registration in the event that something goes sideways in a registered relationship or to stand as outright evidence of sec. 8 elements. tpain mentioned at one point that language specifying caregiver agreement to assist in use to treat or alleviate be more clearly stated. I agree with that.

 

 

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 a 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 a 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 in accordance with that law. 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 July 28, 2015 by GregS

[trichcycler]

I don't see many folks wanting to be caregivers after this.

 

 

If the doctors are issuing recommendations without fulfilling what the state claims are bonified relationships than why are they not going after the MDs issuing the recommendations -Ha ! easier to nail the sick.

 

I don't see many folks wanting to be caregivers to sell outside of their registry after this. 

[t-pain]

its a nice contract greg, much like a card is a contract that you will use marihuana for medical use. but the supreme court just ruled that it must be proven at the time of the crime that it was for medical use.

 

a contract signed 6 months ago saying its for medical use does not mean that a transfer today is for medical use. this is exactly what the court just ruled on, and they had a lot of discussion on this in the oral arguments.

 

i know you wont believe me here, and you will argue that the contract means the person was in medical use. but its like if someone signs a promise not to kill anyone and then kills someone and then tried to provide the promise as evidence he would never do that. its not gonna work ... please check out the oral arguments video/audio.

http://courts.mi.gov/Courts/MichiganSupremeCourt/oral-arguments/2014-2015/Pages/148444.aspx

 

your contract would cover the prima facie part, if the dr signed it, 8a1 maybe. but not cover that the transfer was for medical use 8a3.

[Restorium2]

The moral is to understand your medical use very well and have your stories very straight. 

[Restorium2]

I don't see many folks wanting to be caregivers to sell outside of their registry after this. 

So when a patient demands that a caregiver give them free meds and divert the rest to clear a profit they totally wasted their time even getting a card. 

[t-pain]

The moral is to understand your medical use very well and have your stories very straight.

it requires all patients and caregivers to own a scale and to measure and make sure they are under their limits as well.

 

how many of the 170,000 patients do you think own a scale? not many i'd say.

[GregS]

its a nice contract greg, much like a card is a contract that you will use marihuana for medical use. but the supreme court just ruled that it must be proven at the time of the crime that it was for medical use.

 

a contract signed 6 months ago saying its for medical use does not mean that a transfer today is for medical use. this is exactly what the court just ruled on, and they had a lot of discussion on this in the oral arguments.

 

i know you wont believe me here, and you will argue that the contract means the person was in medical use. but its like if someone signs a promise not to kill anyone and then kills someone and then tried to provide the promise as evidence he would never do that. its not gonna work ... please check out the oral arguments video/audio.

http://courts.mi.gov/Courts/MichiganSupremeCourt/oral-arguments/2014-2015/Pages/148444.aspx

 

your contract would cover the prima facie part, if the dr signed it, 8a1 maybe. but not cover that the transfer was for medical use 8a3.

Right. I can't agree with that. A patient with a legitimate physician recommendation (see supporting documents) who enters into an agreement such as this swears that he/she has appointed the caregiver for that expressed purpose. That the caregiver expressly agrees for the same purpose, both are in agreement and it is proof that any subsequent transaction between those two parties meets both elements. Your comparison to a contract not to kill is an hyperbolic red herring.

Edited July 28, 2015 by GregS

[GregS]

And you will please note, tpain, that the supporting documents fulfill certain of the elements too, most especially that the bona fide requirement is met with.

[GregS]

If a patient subsequent to signing the agreement does not represent a purchase as not being for the purpose of treating or alleviating if that is, in fact, the case, that caregiver is off the hook.

[Restorium2]

The court did say that the caregiver's medical use can't be rebutted because of the patient's actions outside the Act that where not known to caregiver. 

 

And the patient's medical use can't be rebutted because of something the caregiver did outside of the Act that was not know to the patient. 

[GregS]

The court did say that the caregiver's medical use can't be rebutted because of the patient's actions outside the Act that where not known to caregiver. 

 

And the patient's medical use can't be rebutted because of something the caregiver did outside of the Act that was not know to the patient. 

Precisely. Nice clarification.

[t-pain]

If a patient subsequent to signing the agreement does not represent a purchase as not being for the purpose of treating or alleviating if that is, in fact, the case, that caregiver is off the hook.

the court ruled against this, it is the caregivers (defendants') burden to prove medical use, every time, which means , in a roundabout way, the caregiver would have to know how much weed the patient used. tricky mother guys.

 

maybe if your contract included what the msc talked about , how much weed, how much was available "reasonably nessecary" etc... then notarized might cover it. but as-is i dont see it happening.

 

78

Because “[p]ossession, manufacture, and delivery of marijuana remain punishable

offenses under Michigan law,” Kolanek, 491 Mich at 394, a caregiver-defendant’s patient might be unwilling to testify to the patient’s marijuana-related activities due to fear of criminal prosecution. This would present a significant barrier to the caregiver’s ability to establish a defense under § 8. And because a witness cannot be compelled to give testimony that the witness reasonably believes could be used against him or her in a

criminal prosecution, a patient’s justified refusal to cooperate might prove fatal to the primary caregiver’s § 8 defense. See Hoffman v United States, 341 US 479, 486; 71 S Ct 814; 95 L Ed 1118 (1951) (“It is for the court to say whether [the witness’s] silence is justified.”). While this may seem a harsh consequence, this Court has no power to alter the statutory language.

we're talking about a cg who sells to a non-connected patient here, right?

[GregS]

So when a patient demands that a caregiver give them free meds and divert the rest to clear a profit they totally wasted their time even getting a card. 

Smart caregivers walk away from those demands.

[GregS]

The contract's supporting documents or other written statements, e.g., office notes, also prevent the need for a physician to testify. So says the Court. That is huge.

Edited July 28, 2015 by GregS

[trichcycler]

Smart caregivers walk away from those demands.

while others do not, and tend to set court opinions in motion when caught...none of which are ever beneficial to any registrant. Legal registrants suffer after each of these offenses occur. shame

[GregS]

while others do not, and tend to set court opinions in motion when caught...none of which are ever beneficial to any registrant. Legal registrants suffer after each of these offenses occur. shame

All the more reason to use contracts such as this. And please understand that it is not intended to be boilerplate, but malleable to the needs and preferences of the parties, and editing to reflect that is recommended if the need arises.

Edited July 29, 2015 by GregS