In People v. Agro, the Court of Appeals addressed another affirmative defense case under the Michigan Medical Marihuana Act (MMMA). The unpublished decision was released January 22, 2013.
Last year, the Michigan Supreme Court released Kolanek, which clarified the nature and scope of the MMMA. Section 4 of the act gives broad immunity to arrest, prosecution, or any kind of penalty to qualifying patients with registry cards. Section 8 provides a narrower affirmative defense that includes unregistered persons. Briefly, with this defense, a physician makes a determination that a patient will receive therapeutic or palliative benefit from the medical marihuana; next, the patient and patient’s primary caregiver only possessed enough quantity to ensure uninterrupted access; and, the possession, cultivation, transportation, etc., of the marijuana related to the treatment of the medical condition.
In Kolanek, the Court held that a defendant does not need to establish the elements of the broader Section 4 to establish the elements of the affirmative defense in Section 8. The Court stated a defendant—regardless of registration status—in possession of more than 2.5 ounces of usable marijuana or 12 plants not stored in an enclosed, locked facility may still satisfy the affirmative defense provided under Section 8, so long as the elements of the defense are met and none of the listed exclusions in Section 7(b) exist. Additionally, a defendant must show that the physician’s statement happened after the MMMA’s enactment and before the commission of the offense. After a motion to dismiss is filed, then an evidentiary hearing is held. Upon demonstrating the elements of the defense are satisfied, the defendant is entitled to a dismissal of criminal charges. If material questions of fact exist and dismissal is inappropriate, then the defense is submitted to a jury.
Agro featured a defendant convicted of manufacturing marijuana and sentenced to ninety days probation. Defendant was a 70-year-old woman who resided with her husband until his death roughly two years ago. Both were qualifying patients under the MMMA. Defendant had around 17 marijuana plants growing in her basement.
In the defendant’s pretrial motion to dismiss, she argued she had immunity under Section 4 and alternatively, that she could raise the affirmative defense under Section 8. At the evidentiary hearing, the trial court determined that the defendant failed to show her basement or home was an enclosed, locked facility for purposes of Section 4. Since the defendant was not in compliance, the trial court stated an affirmative defense under Section 8 could not be asserted.
The Court also stated the trial court erred
Therefore, in light of Kolanek, the Court of Appeals found the trial court erred in stating the Section 4 provisions applied to the Section 8 affirmative defense. The Court also stated the trial court erred by resolving any factual disputes which went outside the scope and purpose of the evidentiary hearing; the trial court’s only function was to determine whether as a matter of law there was enough evidence to assert a Section 8 defense. For any material factual disputes, this must be presented to a jury. So the Court remanded the case for a continued evidentiary hearing.
Many more cases will be released as the courts continue to interpret and clarify the MMMA. For instance, last month the Michigan Supreme Court released People v. Bylsma. Involving a prosecution for the manufacture of marijuana, the Court determined whether Section 4 of the MMMA provides a registered primary caregiver with immunity when collectively growing marijuana with other registered primary caregivers and registered qualifying patients. The Court held that Section 4 does not contemplate that type of collective activity. In conclusion, the defendant was not entitled to Section 4 immunity, as the defendant exercised dominion and control over a quantity of marijuana plants in excess of the allowable amount.
Need assistance with your MMMA case? The compassionate attorneys at The Kronzek Firm PLC, are available to help you.