People v. Kolanek
291 Mich. App. 227
| Mich. Ct. App. | 2011Background
- Defendant was arrested on April 6, 2009, and eight marijuana cigarettes were seized from his vehicle.
- Defendant was charged with possession of marijuana under MCL 333.7403(2)(d).
- Defendant asserted an MMMA affirmative defense, moving to dismiss; district court denied, then circuit court reversed and remanded.
- Defendant offered a treating-physician's testimony and affidavits stating eligibility for medical use of marijuana after the MMMA became effective.
- District court focused on MCL 333.26428(a)(1)'s language requiring a physician's stated benefit; circuit court held timing could occur before arrest so long as stated by physician.
- Court holds that the physician's statement must have occurred after MMMA enactment but prior to arrest; thus post-arrest proofs are insufficient to meet § 8(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timing of physician statement under §8(a)(1) | Physician statement may be ante- or post-arrest if timely stated | Statement must be made prior to arrest only if required by the statute's timing | Physician's statement must be after enactment but before arrest |
Key Cases Cited
- People v Redden, 290 Mich App 65 (2010) (statutory interpretation of MMMA registry card not required for defense)
- People v Campbell, 289 Mich App 533 (2010) (no retroactive application of MMMA defense; pre-enactment discussions insufficient)
- Oregon v Root, 202 Or App 491 (2005) (doctor's advice must precede a citizen's freedom from penalties)
- People v Wright, 40 Cal 4th 81 (2006) (California’s CUA defense requires pre-enactment physician determination)
- Rigo, 69 Cal App 4th 409 (1999) (pre-enactment physician recommendation allowed under California law)
- Windus, 165 Cal App 4th 634 (2008) (defense requires physician recommendation prior to arrest in California)