A local defense attorney called this week’s Michigan Supreme Court ruling related to medical marijuana laws “a game-changer.”
“It’s really a great day for patients,” said Southfield-based attorney Neil Rockind, who has defended medical marijuana users in court and is an advocate for the rights of patients and caregivers.
In one of the cases in the ruling issued Thursday, the Supreme Court reversed an appellate decision involving Owosso resident Larry King, who was issued a medical marijuana registry card in 2009. Police found six marijuana plants in a padlocked, outdoor kennel and six more plants in a closet inside his home. He was arrested and charged with manufacturing marijuana.
In circuit court, King asked for the charge to be dismissed because he had established the elements of an affirmative defense under a section of the Michigan Medical Marihuana Act. Prosecutors said he failed to comply with another section of the act by not keeping his marijuana in an “enclosed, locked facility,” and therefore he could not establish an affirmative defense under the marijuana law.
A circuit court judge disagreed with prosecutors and dismissed the case. The Michigan Court of Appeals reversed that decision and concluded that because King failed to keep his plants in an enclosed, locked facility, he had not complied with the act and failed to meet the requirements of an affirmative defense.
The Michigan Supreme Court reversed the Court of Appeals decision in King and remanded the case to a lower court for an evidentiary hearing.
Rockind said the decision “restores the vitality of the affirmative defense” and allows the act to protect patients in the way it was intended.
“I’m thankful the Supreme Court has unanimously decided the language in the statute is clear,” Rockind said. “I’m chomping at the bit to get back in court. I have a whole docket of cases, many of which are delayed waiting for a decision in King.”
The Supreme Court said qualified registered patients under the marijuana act are provided broad immunity from arrest, prosecution or penalty if they comply with certain rules, such by having no more than a specific number of plants.
The court also said that a person does not need to be a registered card holder to assert a defense under the Michigan Medical Marihuana Act. But that doesn’t mean that an unregistered person can’t be arrested or prosecuted, Oakland County Chief Assistant Prosecutor Paul Walton said.
Under the act, a medical marijuana patient and his or her doctor must have a “bona fide physician-patient relationship.” Walton said a great thing about the court’s ruling is that it clearly defined such a relationship, using language from the Michigan Board of Medicine and Michigan Board of Osteopathic Medicine and Surgery, as a “pre-exisiting and ongoing relationship with the patient as a treating physician.”
“It, in my mind, clearly eliminates the pot docs, the (prescription) mills … people that have decided to abuse the system,” Walton said.
In the other case in the ruling, the Michigan Supreme Court said Oakland County resident Alexander Kolanek needed a doctor’s statement confirming a medical need for marijuana after the state law was enacted and before he was arrested in 2009 for having eight marijuana cigarettes. Six days after his arrest, Kolanek asked his longtime doctor to authorize his use of medical marijuana to treat pain and nausea caused by Lyme disease.
The high court affirmed an appeals court ruling but said a person accused of a marijuana-related crime has a right to assert a medical marijuana defense if the doctor’s recommendation was already in hand.
Attorney Dan Korobkin of the Michigan chapter of American Civil Liberties Union said in a statement that the ruling is the first major decision in favor of a medical marijuana patient in the state.
“This decision makes it very clear: A patient who uses marijuana to treat their medical conditions with the approval by their doctor should not be punished for mere technical errors regarding the number of plants or how they were secured,” he said.
The Associated Press contributed to this report.
via Oakland Press