Court limits defense options for medical marijuana

The Michigan Court of Appeals Wednesday narrowed a provision of the Michigan Medical Marihuana Act which allowed people arrested for possession to have an affirmative defense of medical necessity — even without a patient registry card.

Under the ruling, the so-called paragraph 8 defense built into the law can only be used when a patient has been certified by a physician as needing the drug prior to being arrested by police. In this instance, Brian Bebout Reed had a qualifying medical condition — chronic back pain from degenerative disc disease. He underwent surgery for the disease over a decade ago. Reed attempted to obtain certification from his primary physicians, who declined because they receive federal funding.

Reed continued searching for a physician to certify him, but an aerial unit working for the Huron Undercover Narcotics Team (HUNT) visually identified six marijuana plants growing on Reed’s property on Aug. 25, 2009. The ruling says:

On September 16, 2009, defendant finally received a certification to use medical marijuana from a doctor. He received his registry identification card from MDCH on October 6. Ten days later, on October 16, he was arrested and charged with the manufacture of marijuana.

The three judge panel ruled that because the marijuana was discovered prior to his certification, he was not eligible for a Paragraph 8 defense.

We now extend that ruling and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense. We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The ruling resulted in an immediate condemnation from the Marijuana Policy Project in Washington D.C.

“We respectfully disagree with the Court’s conclusion. The law provides protection from arrest for possession and use of marijuana for registered qualifying patients. That said, since marijuana is still illegal under federal law and anti-medical marijuana zealot Bill Schuette is Michigan’s top law enforcement official, it’s entirely understandable that many patients will choose not to register,” says Dan Riffle, legislative analyst for the group. “Regardless of whether a patient has chosen to register, it is an injustice to prosecute and convict someone of a drug crime when s/he is simply sick and trying to alleviate their symptoms with the medicine that’s most effective for them. That’s the purpose of the affirmative defense – so that those patients who choose not to register (thus, have no protection from arrest) can at least present evidence of their medical need as a defense to prosecution for legitimate medical use. The point is that a patient has a medical need, and a doctor is willing to verify that. It shouldn’t matter whether that verification comes before, during, or after the patient is found to be in possession, as long as the possession was for medical purposes.”