For several years now, Neil Rockind has been advocating and arguing that the court of appeals was getting it wrong regarding medical marijuana. We argued that the decision in People v King, that ruled that the Affirmative Defense could only be available if the patient satisfied section 4 was wrongly decided. Today the supreme court agreed.
In a clear victory, the ENTIRE Michigan Supreme Court issued opinions in the Kolanek and King cases and ruled that the strict cultivation and possession requirements of section 4 of the MMMA do not apply to relief seekers under section 8, the affirmative defense portion of the MMMA. Prior courts of appeal have required people seeking dismissal of their charges under 8 to also comply with the various portions of 4, even though the statute created distinguishable rights under 4 from 8 and 2 layers of protection, depending on whether the patient was registered or not.
Some other section 8 loose ends that are clarified include:
(1) that the medical opinion that mj may be palliative towards your situation has to occur after the enactment of the MMMA and before the criminal offense (so no post-arrest medical certiifcation for a valid section 8 defense is tolerated by courts).
(2) All section 8 affirmative defense hearings have to have a pre-trial evidentiary hearing, they can’t be only at the jury trial.
(3) At the AD hearing, if no reasonable jury could conclude defendant meets burden of section 8, then court must deny the AD and no AD at trial, must apply for interlocutory appeal. (remember section 4 issues are not relevant, just section If at the AD hearing, the prima facie evidence of all the elements of section 8 exist, but material questions of fact exist, then a judge can refuse to dismiss and jury gets to hear both sides as to facts and decide AD.
This is going to dramatically change the landscape of MMMA courtroom litigation and broadly protect more people than before. It restores the original intent of the MMMA to broadly protect registered patients and provide a safety valve preventing conviction for unregistered patients who nevertheless were operating pursuant to a bona fide MD opinion (that has to occur prior to bust).
This is huge news and one that advocates like Neil Rockind and Neil Rockind PC have long awaited.