On May 31, 2012, the Michigan Supreme Court issued a unanimous opinion in the Kolanek and King cases, and ruled that the numerical limitations imposed by Section 4 of the MMMA do not apply to the affirmative defense stated in Section 8 of the Act. Prior Court of Appeals decisions had reached the opposite conclusion, and are now reversed. These now incorrect opinions had required people seeking the dismissal of their charges under Section 8 to also comply with the various portions of Section 4. This was despite that the statute created clearly distinguishable rights under Section 4 and Section 8, with two differing layers of protection, depending on whether the patient was registered or not.
Some other Section 8 loose ends that are clarified include:
(1) That the medical opinion that marihuana may be palliative has to occur after the enactment of the MMMA and before the commission of the alleged criminal offense (i.e., no post-arrest medical certification for a valid Section 8 defense is allowed).
(2) All Section 8 affirmative defense hearings must occur in a pre-trial evidentiary hearing, and can’t be “reserved” to be asserted for the first time at jury trial.
(3) At the affirmative defense hearing, if no reasonable jury could conclude defendant meets burden of Section 8, then court must deny the affirmative defense, and the affirmative defense may not be asserted at trial; instead, one must apply for interlocutory appeal.
(4) If at the affirmative defense hearing, the prima facie evidence of all the elements of Section 8 are shown by the defendant, but material questions of fact exist, then the judge can refuse to dismiss; in that event, the jury gets to hear both sides as to facts and decide the affirmative defense.
It is the opinion of Targowski & Grow, PLLC, that this change in the law will dramatically change the landscape of MMMA courtroom litigation and broadly protect more people than before. In our opinion it restores the original intent of the MMMA to broadly protect registered patients and provide an honest opportunity to present the facts to a jury, thereby preventing convictions for unregistered patients who chose to use of marihuana pursuant to a bona fide doctor opinion.
Targowski & Grow, PLLC, had successfully secured dismissals under Section 8 before the Court of Appeals blocked that route, and now that the law has been returned to its former strength, we look forward to succeeding again in courts across Michigan. Please contact if you find yourself the target of an investigation or charged with a violation of the MMMA.
(The cases were The People of the State of Michigan vs Larry Steven King, case number 142850, and The People of the State of Michigan vs Alexander Edward Kolanek, case numbers 142695 and 142712.)