Lead Opinion
Dеfendant appeals the trial court’s order that (1) held that he was not entitled to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA),
I. NATURE OF THE CASE
Defendant was arrested for selling marijuana to a confidential informant of the Oakland County Sheriffs Office. He was subsequently charged with the sale and production of marijuana and possession of a firearm during the commission of a felony (felony-firearm). Defendant holds a valid registry identification card under the MMMA, MCL 333.26421 et seq. He claims that possession of the card, without more, entitles him to (1) immunity from prosecution under § 4 of the MMMA, MCL 333.26424, for the charges not relating to the sale of marijuana, and (2) an affirmative defense under § 8 of the MMMA, MCL 333.26428, for all the charges. In addition, defendant argues that the testimony of his medical marijuana patients allows him to assert the § 8 affirmative defense. The trial court rejected both arguments and held that defendant was not entitled to immunity under § 4 and that he had not presented the requisite evidence to make an affirmative defense under § 8.
We uphold the trial court, and expand our analysis to include defendant’s arguments regarding (1) his possession of a registry identification card, and (2) the testimony of his medical marijuana patients. To adopt defendant’s MMMA interpretation would subvert the purposes of the statute. It provides a limited “exception to the Public Health Code’s prohibition on the use of controlled substances ....” People v Bylsma,
II. PACTS AND PROCEDURAL HISTORY
On three occasions in January 2012, defendant sold marijuana to a confidential informant of the Oakland County Sheriffs Office. Defendant originally met the informant on a website that connects medical marijuana patients with marijuana growers.
The Oakland County Sheriffs Office arrested defendant shortly after the third sale. The office also obtained a warrant to search defendant’s home. At the house, a detective recovered 33 marijuana plants and 38 grams of dried marijuana from a locked garage and shed. The police also discovered a cache of firearms (including an AK-47) in a gun safe in defendant’s basement.
The state subsequently charged defendant with numerous counts related to marijuana manufacture and delivery and possession of a firearm during the commission of a felony.
The prosecution responded to defendant’s motion, and conceded that defendant complied with the “quantity and storage parameters” of § 4. But the prosecution asserted that defendant’s conduct rebutted the presumption that he was engaged
The trial court agreed with the prosecution and denied defendant’s motion to dismiss under § 4 before the evidentiary hearing. It held that the prosecution had rebutted the presumption of compliance with the MMMA referred to in § 4(d).
At the evidentiary hearing, a detective and the confidential informant offerеd testimony. Defendant’s two registered patients testified as well. After it heard this evidence, the trial court denied defendant’s request for dismissal under § 8. It also held that defendant was precluded from presenting the § 8 affirmative defense at trial because he had failed to provide evidence of every element required under that section. Specifically, the court noted that the physician statements provided by defendant did not actually state that the respective physicians completed a full assessment of each patient’s medical history and current medical condition. It was also troubled by the number of plants found in defendant’s home, stating that “33 plants certainly could be viewed to be significantly beyond the required quantity” to treat his patient’s conditions. However, the trial court did find evidence that defendant was actually engaged in the possession and cultivation of marijuana for medical purposes, citing the testimony of defendant’s two certified patients.
In September 2012, defendant sought leave to appeal in this Court, which denied leave.
III. STANDARD OF REVIEW
A trial court’s decision on a motion to dismiss is reviewed for an abuse of
IV ANALYSIS
A. SECTION 4 IMMUNITY
Only some of the multiple subsections of § 4 are relevant to this case: §§ 4(a), 4(b), and 4(d). Under § 4(a), qualifying patients who hold registry identification cards
a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s oum condition or symptoms. Similarly, § 4 immunity does not extend to a registered primary caregiver who transfers marijuana for any purpose other than to alleviate the condition or symptoms of a specific patient with whom the caregiver is connected through the [Michigan Department of Community Health’s] registration process. [McQueen,493 Mich at 156 .]
Under § 4(d), qualifying patients and primary caregivers are presumed to be “engaged in the medical use of marihuana in accordance with [the MMMA]” if they are in possession of (1) “a registry identification card” and (2) “an amount of marihuana that does not exceed the amount allowed under this act.” MCL 333.26424(d). This presumption is rebuttable — if the prosecution provides “evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act” it will not apply. MCL 333.26424(d)(2).
Here, defendant’s transfer of marijuana to the confidential informant is clearly not protected under § 4. See McQueen,
Defendant concedes that he is not entitled to § 4 immunity for the sales of marijuana to the confidential informant. Yet he asserts that the other charges— namely, the ones related to marijuana possession and the accompanying felony-firearm counts — should be dismissed under § 4. He bases this claim on the following evidence:
Defendant is correct that he is entitled to the presumption in § 4(d): he was in possession of the requisite identification cards and possessed an “amount of marihuana that [did] not exceed the amount allowed under [the MMMA].” MCL 333.26424(d)(2). But what § 4(d) gives may also be lost under § 4(d)(2), because the prosecution may rebut the presumption. It has done so here. Defendant has engaged in “conduct related to marihuana [that] was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act” MCL 333.26424(d)(2) (emphasis added). By his own admission, defendant sold marijuana to an individual outside the parameters of the MMMA. And as a consequence, he does not have the privilege to claim immunity under § 4. This action rebuts the presumption with regard to all his conduct involving marijuana — even conduct involving his two other qualifying patients.
Defendant attempts to obscure this clear statutory outcome by asserting that there is no evidence that the specific marijuana found by the police in his home — i.e., the 33 plants and 1.34 ounces of useable marijuana— was used for the illegal sale to the confidential informant. He also suggests that one illicit marijuana sale shouldn’t “taint” the ostensibly “clean” marijuana used to supply his legitimate, MMMA-compliant patients.
This argument lacks any grounding in the statute itself. Defendant ignores that it is his conduct that is at issuе— conduct that is tainted by his violation of the MMMA. Defendant’s reasoning also contravenes the MMMA’s stated aims: to provide a particular exception to the general illegality of marijuana use,
Accordingly, defendant is not entitled to the immunity provisions of § 4. The trial
B. SECTION 8(A) DEFENSE
Under § 8(a) of the MMMA, a defendant may assert the medical purpose for using marijuana as a defense in any prosecution involving marijuana.
Before we address each subsection of § 8, it is important to consider the mandate of the section as a whole. Because the MMMA is a limited statutory exception to the general state prohibition of marijuana, the MMMA promulgates a comprehensive statutory scheme that must be followed if caregivers and patients wish to comply with the law. Section 8 outlines a possible defense that a defendant can raise when charged with any state crime involving marijuana. In so doing, the section weaves together the obligations of each individual involved in the prescription, use, and production of marijuana for medical purposes. Under the act, doctors must have an ongoing relationship with their patients, in which the doctor regularly reviews the patient’s condition and revises any marijuana prescription accordingly.
Possession of a registry card, without more, does nothing to address these § 8 medical requirements. It offers no proof of the existence of an ongoing relationship between patient and physician, as mandated by § 8(a)(1). Nor does it prove the caregiver is aware of how much marijuana the patient is prescribed or for how long the patient is supposed to use the drug, as mandated by § 8(a)(2). And it does not ensure the marijuana sold by the caregiver is actually being used by the patient for medical reasons, as mandated by § 8(a)(3).
In sum, possession of a registry card is not sufficient to demonstrate compliance with the MMMA, and cleаrly does not satisfy the requirements for asserting the § 8 defense in a prosecution for a crime involving marijuana.
1. SECTION 8(a)(1): THE BONA FIDE PHYSICIAN-PATIENT RELATIONSHIP
To satisfy § 8(a)(1), a defendant must present evidence that
[a] physician has stated that, in the physician’s professional opinion, 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, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition[.] [MCL 333.26428(a)(1).]
Defendant claims that the dоcuments he presented at the evidentiary hearing — his medical marijuana patient and caregiver cards, his patients’ registry identifications, and the various documentation supporting both — are sufficient evidence to satisfy the requirement of a physician statement and a bona fide physician-patient relationship. In addition, defendant asserts that the testimony of his two patients is further evidence of the existence of the bona fide physician-patient relationship required by the statute. We address each claim in turn.
a. REGISTRY IDENTIFICATION CARDS
Defendant’s argument regarding the registry identification cards has some basis in § 6 of the MMMA. Section 6 governs the procedures patients and the Department of Licensing and Regulatory Affairs (the department) must follow for the department to issue patient and caregiver cards. Specifically, § 6(a) mandates that the department
shall issue registry identification cards to qualifying patients who submit the following, in accordance with the department’s rules:
(1) A written certification;
(2) Application or renewal fee;
(3) Name, address, and date of birth of the qualifying patient, except that if the applicant is homeless, no address is required;
(4) Name, address, and telephone number of the qualifying patient’s physician;
(5) Name, address, and date of birth of the qualifying patient’s primary caregiver, if any;
(6) Proof of Michigan residency. [MCL 333.26426(a).14 ]
In its definitional section, the MMMA defines a “written certification” as a document signed by a physician that states the following:
(1) The patient’s debilitating medical condition.
(2) The physician has completed a full assessment of the patient’s medical history and current medicаl condition, including a relevant, in-person, medical evaluation.
(3) In the physician’s professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition. [MCL 333.26423(m).]
The MMMA mandates that the department cannot issue a registry identification card to a patient or caregiver applicant unless it verifies the information submitted in the patient or caregiver’s written certification. As such, possession of a registry identification card, if valid, satisfies some of the requirements of § 8(a)(1). Further, if the department actually followed its statutоry obligations and conducted an investigation, the card would serve as evidence that a physician did the following: (1) completed a full assessment of the patient’s medical history, (2) conducted an in-person medical evaluation, (3) observed a debilitating medical condition, and (4) concluded that the patient is likely to benefit from the medical use of marijuana. However, the physician’s written certification is not evidence of the existence of the bona fide physician-patient relationship, which is required for the § 8(a) affirmative defense.
The initial, voter-initiative version of the MMMA did not define “bona fide physician-patient relationship.” See People v Redden,
Earlier cases have defined “bona fide” in the preamendment context. This Court used a dictionary to discern the plain-meaning definition of the term in Redden. Redden stated that “Random House Webster’s College Dictionary (1997) defines ‘bona fide’ as ‘1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.’ ” Redden,
These definitions do not support defendant’s effort to substitute the procedural requirements in § 6 for the legal requirements in § 8. The steps outlined in § 6 for obtaining a patient or caregiver’s card cannot demonstrate the existence of a physician-patient relationship that is “pre-existing” and involves “ongoing” contact. Accordingly, mere possession of a patient identification card, a caregiver’s card, or both does not satisfy the requirements of § 8(a)(1). That the statute requires this outcome is in keeping with its medical purpose and protects the patients it is designed to serve. By requiring a bona fide physician-patient relationship in order to establish the affirmative defense under § 8, the MMMA prevents doctors who merely write prescriptions — such as the one featured in Redden
b. THE PATIENT TESTIMONY
Our analysis of the phrase “bona fide physician-patient relationship” cannot end here, as defendant also asserts that the testimony of his two patients satisfies this requirement of § 8(a)(1). This assertion is incorrect. Again, defendant attempts to elide the fact that he illegally sold marijuana to the confidential informant. He does so by pointing to his supposedly legal activities involving marijuana with his two qualifying patients. Defendant did not provide evidence of the confidential informant’s bona fide patient-physician relationship with his physician.
In addition, the testimony of his two qualifying patients does not demonstrate the existence of a bona fide relationship between the patients and their physicians. One of the patients testified that he saw his certifying physician one time, for an hour. The other saw his certifying physician twice. This evidence does not demonstrate a “ ‘pre-existing and ongoing relationship’ ” between patient and physician. See Kolanek,
Accordingly, we hold that mere possession of a patient identification card, a caregiver’s card, or both does not satisfy § 8(a)(1). Further, we hold that the testimony of defendant’s patients did not demonstrate a bona fide physician-patient relationshiр. Therefore, the trial court was correct to rule that defendant did not present valid evidence with respect to the first element of the § 8 affirmative defense.
2. SECTION 8(a)(2): NO MORE MARIJUANA THAN “REASONABLY NECESSARY”
To satisfy § 8(a)(2), a defendant must present evidence that
[t]he patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition. [MCL 333.26428(a)(2).]
Accordingly, this element contains two components: (1) possession and (2) knowledge of what amount of marijuana is “reasonably necessary” for the patient’s treatment.
Defendant notes that the amount of marijuana seized from his home is less than that permitted to him by § 4(b). Though he admits that this fact alone is not enough to satisfy the “reasonably necessary” standard of § 8(a)(2), he suggests that it be given “substantial weight” in our determination.
Defendant’s approach misconstrues the law and ignores common sense. Our Supreme Court has strongly suggested that §§ 4 and 8, and the mandates found in each, are to be kept separate. See Kolanek,
At the evidentiary hearing, defendant’s patients testified regarding the amount of marijuana defendant provided. However, they did not give testimony that defendant knew how much marijuana was necessary to treat their debilitating medical conditions. Defendant himself also failed to provide any evidence of how much marijuana he used, or how often he used it to treat his severe or debilitating medical condition. Finally, defendant obviously had more marijuana than reasonably necessary to treat him and his patients. He possessed enough to sell to the confidential informant — on three different occasions.
Defendant thus failed to satisfy the second element of the § 8 affirmative defense. Accordingly, the trial court properly held that there was no question of fact with regard to this issue.
3. SECTION 8(a)(3): ACTUAL MEDICAL USE OF MARIJUANA
To satisfy § 8(a)(3), a defendant must present evidence that
[t]he patient and the patient’s primary cаregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition. [MCL 333.26428(a)(3).]
The trial court held that defendant established this element, and pointed to the testimony of defendant’s patients as its reason for so holding. The two patients testified that they suffer from chronic pain, which is alleviated through the medical use of marijuana. The trial court found this testimony demonstrated that the marijuana at issue in the case was actually used to alleviate “the [patients’] serious or debilitating medical condition” as required by § 8(a)(3).
The trial court’s holding with respect to this element is flawed. Any analysis of § 8(a)(3) needs to incorporate every patient possibly using the marijuana at issue. Here, that group includes four individuals: defendant, his two patients, and the confidential informant. The trial court received testimony on this matter — testimony that it found convincing— from two of these individuals. It also heard from the confidential witness, who stated that he suffered from chronic pain, which he used marijuana to treat. But the trial court did not cite his testimony as a factor in its § 8(a)(3) determination.
In addition, the trial court received no testimony from defendant himself, who is a qualifying patient and caregiver. Defendant did not provide evidеnce that he personally used the marijuana found in his home to alleviate a “serious or debilitating medical condition,” as required by § 8(a)(3). We again note that mere possession of a registry card is insufficient evidence for the purposes of § 8(a)(3). Possession of a registry card indicates that the holder has gone through the required steps set forth in § 6 to obtain a registry
V CONCLUSION
Because the prosecution presented evidence to rebut the medical-use presumption under § 4(d), defendant is not entitled to immunity under § 4. Further, because defendant did not present evidence satisfying all three elements of the § 8 affirmative defense, he is not entitled to have the case dismissed under that section, nor is he permitted to assert that defense at trial. In so holding, we note that the trial court improperly held that defendant satisfied one element of the affirmative defense, § 8(a)(3). Nonetheless, the trial court properly rejected defendant’s § 4 and § 8 claims.
Notes
The MMMA uses the variant “marihuana.” Throughout this opinion, we use the more common spelling “marijuana” unless quoting from the MMMA or cases that use the variant spelling.
Defendant himself is a medical marijuana patient with a state-issued registry identification card. He also is a registered “caregiver” for two other qualifying patients. MCL 333.26423(h) defines “primary caregiver” and “caregiver” as “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime ....”
MCL 333.26423(i) defines “qualifying patient” and “patient” as “a person who has been diagnosed by a physician as having a debilitating medical condition.”
Counts I-III relate to the sale of marijuana to the confidential informant — one charge for each of the sale dates. Counts IV and V concern possession of the 38 grams of loose marijuana and a related felony-firearm charge. Counts VI and VII relate to the growing of 33 marijuana plants and a related felony-firearm charge.
Michigan v McQueen,
People v Tuttle, unpublished order of the Court of Appeals, entered October 11, 2012 (Docket No. 312364).
People v Tuttle,
MCL 333.26423© defines “registry identification card” as “a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver.”
Under § 4(b)(2), defendant could possess up to 36 plants and, subject to certain volume limitations, remain in compliance with the MMMA. The statute allows him to possess 12 plants for himself, plus 12 plants for each patient for whom he is a caregiver (3 x 12 = 36). In addition, § 4(b)(1) allows defendant to possess up to 7.5 ounces of usable marijuana: 2.5 ounces for himself, and 5 ounces combined for his two patients.
See Bylsma,
Defendant’s claims regarding § 8 of the MMMA are almost identical to the сlaims of the defendant in People v Hartwick,
The Michigan Supreme Court recently outlined very specific steps and procedural outcomes for defendants who assert the § 8(a) affirmative defense. If the defendant establishes the three § 8(a) elements during a pretrial evidentiary hearing, and there are no material questions of fact, the defendant is entitled to dismissal of the charges. Kolanek,
In this case, the trial court held that no reasonable juror could conclude that defendant had satisfied all the elements of the § 8(a) affirmative defense. Accordingly, it ruled that the defense failed as a matter of law and that defendant was precluded from asserting it at trial.
The importance of a legitimate, ongoing relationship between the marijuana-prescribing doctor and the marijuana-using patient is stressed throughout the MMMA. Section 4(f), which provides a qualified immunity for physicians, mandates that the immunity only applies to physicians that prescribe marijuana “in the course of a bona fide physician-patient relationship . .. .” MCL 333.26424(f). Section 4(f) further implies that this relationship must be ongoing by stressing that “nothing shall prevent a professional licensing board from sanctioning a physician for. . . otherwise violating the standard of care for evaluating medical conditions.” This standard of care presumably includes follow-up visits with the patient. And § 6 — as noted, the section that governs the issuance of registry cards — also implies the expectation of an ongoing physician-patient relationship. It states that if a “patient’s certifying physician notifies the department in writing that the patient has ceased to suffer from a debilitating medical condition, the card shall become null and void upon notification by the depаrtment to the patient.” MCL 333.26426(f).
Under the earlier version of the MMMA that applies to this case, the final element, MCL 333.26426(a)(6), read as follows: “If the qualifying patient designates a primary caregiver, as designation as to whether the qualifying patient or primary caregiver will be allowed under state law to possess marihuana plants for the qualifying patient’s medical use.”
The Legislature clearly has the power to subsequently amend statutes that enact voter initiatives. Const 1963, art 2, § 9; Advisory Opinion on Constitutionality of
The Redden physician practiced medicine in six states, spent 30 minutes with each of the Redden defendants, and seemingly examined the patients with the express purpose of helping them qualify to receive marijuana for medical purposes. See Redden,
In fact, the confidential informant testified at the evidentiary hearing that he received the certification for his registry identification card by speaking with a doctor — or someone who claimed to be a doctor — over the phone. He spoke with the individual for less than 10 minutes. The confidential informant could nоt remember the name of the certifying doctor, and testified that he had never seen the doctor before, nor had he seen the doctor since. Whatever sort of relationship existed between the confidential informant and the certifying physician, it was certainly not a bona fide physician-patient relationship as required by the MMMA. In short, the confidential informant possessed a state-issued registry identification card — and yet did not have the bona fide relationship with his physician required for the § 8 affirmative defense. There is no plainer illustration of why mere possession of a registry identification card does not satisfy defendant’s evidentiary burden under § 8(a)(1).
See also Bylsma,
“A trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.” Gleason v Dep’t of Transp,
Concurrence Opinion
(concurring in the result). I concur in the result only.