People v. Hartwick and Tuttle: Changing the Landscape of Medical Marijuana in Michigan.

On July 27, 2015, the Michigan Supreme Court published its opinion on Hartwick. In that opinion, the Court clarified that a defendant must prove their affirmative defense under § 8 of the MMMA by a preponderance of the evidence, a standard which had not previously been formally established. The Court then restated the first element which the defendant must prove to establish a § 8 defense and distilled from it three elements:

1) the existence of a bona fide physician-patient relationship 2) in which the physician completes a full assessment of the patient’s medical history and current medical condition, and 3) from which results the physician’s professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition.

The Court held that possession of a registry identification card satisfies the third element of § 8(a)(1). It reasoned that, as part of the application process, the cardholder must obtain from a physician a “written certification,” a legal term defined by the MMMA which encompasses the requirements of this third element. Since a caregiver cannot become a caregiver without obtaining a document containing a physician’s professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana, possession of a caregiver card is evidence that element three of § 8(a)(1) has been met.

Additionally, the Court held that possession of a registry identification card issued after April 1, 2013 satisfies the second element. 2012 PA 512 went into effect on that date and amended the MMMA to require that a physician conduct a full, in-person assessment of the patient before completing the written certification. Once again, since this prerequisite to obtaining a MMMA card matches the second element of § 8(a)(1), cards issued after April 1, 2013 are evidence that an assessment by a physician has been completed in satisfaction of element two.

Lastly, Hartwick established a new means for establishing what constitutes a reasonable amount of marijuana under § 8(a)(2). Previously, a defendant was required to prove that the amount of marijuana he possessed was reasonable to treat the patient’s debilitating condition. On its face, this law appears to measure the amount the defendant possessed against the patient’s actual need. Under Hartwick, however, the defendant may now reasonably rely on a patient’s statements as to their need. A defendant may now effectively assert a § 8 defense even where the amount possessed was in excess of the patient’s actual need so long as the defendant reasonably relied on the patient’s statements.

We have litigated medical marijuana cases in criminal courts across the state of Michigan and have been called experts in this particular field of criminal law. If you have a medical marijiuana case, we want to hear from you. Call our office at (517) 505-2323 to set up a consultation.