Court of Appeals ruling prevents ANY MMMA caregivers from serving more than five patients

by: Jason Osbourn

05/18/2016 04:48 PM EST
  section 8  

While the § 4 defense of the Michigan Medical Marijuana Act (MMMA) is relatively clear, § 8 suffers from a high level of vagueness and ambiguity. The most recent published attempt to clarify this defense by the Michigan courts occurred in People v Bylsma, ___ Mich App ___ (2016) where the Court of Appeals was presented with the issue of the relevance of a registered caregiver-patient relationship to the assertion of immunity under § 8 of the MMMA. That court reaffirmed the Michigan Supreme Court’s holding in People v Kolonek, 491 Mich 382, 403 (2012) in which held that the § 4 and § 8 defenses are separate and independent and that a defendant’s inability to assert one of these defenses does not necessarily preclude that defendant from asserting the other. In People v Hartwick, 498 Mich 192, 236 (2015), the Supreme Court applied this principle to the registration of a caregiver or patient with the state and concluded that “. . . patients and primary caregivers who are not registered may still be entitled to § 8 protections if they can show that their use of marijuana was for a medical purpose . . .”

Under Hartwick, a defendant asserting immunity under § 8 must show three things: 1) that a a physician has completed a full assessment of the patient and concluded that the patient would benefit from the medical use of marijuana to treat or alleviate the symptoms of the patient’s serious or debilitating medical condition, 2) that the patient and caregiver were collectively in possession of no more marijuana than was reasonably necessary to ensure uninterrupted availability, and 3) that the marijuana activity conducted by the defendant was, in fact, done for the purpose of treating or alleviating the patient’s serious or debilitating medical condition.

Turning to Bylsma, the Court of Appeals considered the definition of the term “caregiver” as it is used under § 8. First, MCL 333.26423(h) defines the terms “primary caregiver” and “caregiver” identically 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.”

In addition, Bylsma reasons that constant use of the singular forms of these terms throughout § 8 implies that a patient may only have one caregiver at any given time for the defense to apply. Moreover, MCL 333.26426(d) prevents the State of Michigan from issuing more than five caregiver registration cards any one caregiver. Therefore, in addition to the elemental requirements described under Hartwick, a defendant is only immune under § 8 if they can show that they were the sole caregiver for the patient and that they served no more than five patients at the time of the alleged illegal conduct.

It is important to add that the Court of Appeals’ conclusions applying the patient limit to § 8 may be vulnerable to attack. MCL 333.26426(d), upon which the Court of Appeals concludes that defendants asserting immunity under § 8 may not serve more than five patients, reads thus:

“The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.”

The plain wording of this text serves to prevent the State of Michigan from issuing more than five MMMA caregiver cards from any one caregiver. This imposes a de facto limitation on § 4 because possession of a caregiver card is a prerequisite to asserting immunity under that section. However, possession of a registry card is not a component of the § 8 defense. Therefore, the argument could be made that MCL 333.26426(d) applies only to § 4 and not § 8. At this point, however, only a decision from the Michigan Supreme Court could overrule the Court of Appeals’ present determination that the five patient limit applies to both § 4 and § 8.

If you are charged with a marijuana-related crime and believe you may have immunity under the Michigan Medical Marijuana Act or if you have any other legal questions, please contact Newburg Law at (517) 505-2323 for advice and assistance.