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Michigan Medical Marijuana Act (MMMA) Section 4 - Affirmative Defense for Qualifying Patients and Caregivers in Possession of a Registry Identification Card

The Michigan Medical Marijuana Act, also known as the MMMA, provides for qualifying patients and primary caregivers of qualifying patients to have an affirmative defense to prosecution for possession, acquisition, cultivation, manufacture, use, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a registered qualifying patient’s debilitating condition.

 

A qualifying patient is a person who has been diagnosed by a physician as having a debilitating medical condition. A debilitating medical condition means one or more of the following:

 

(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, nail patella, or the treatment of these conditions.

 

(2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis.

 

A Primary Caregiver means a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marijuana and who has never been convicted of a felony involving illegal drugs.

 

As for a qualifying patient, the Section 4 defense provides that a qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount (in other words, the shake is not included in the weight).

 

Section 4 also applies to primary caregivers for qualifying patients. The statute provides that a primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

 

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

 

(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

 

(3) any incidental amount of seeds, stalks, and unusable roots.

 

One point of high controversy in litigation throughout the state in both trial courts and appellate courts is whether a primary caregiver can make a profit when “selling” marijuana and/or assisting a qualifying patient. Many prosecutors throughout the State of Michigan, including Oakland County, Macomb County, Wayne County, Livingston County, Genesee County, have taken a position that remuneration that results in a profit is illegal and/or voids the affirmative defense for a transfer or delivery. The language the prosecutors are relying on for this position is contained in Section 4 and reads as follows: “A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.” 

 

There are no cases that support the prosecutor’s exceedingly narrow definition of compensation. Of course, compensation can be for the literal, financial “costs.” The prosecutor’s position completely ignores the costs in term of time, effort and labor associated with growing, processing, cultivating and transferring the medical marijuana. 

 

There has not yet been a majority opinion in the Court of Appeals or the Michigan Supreme Court that has ruled on this issue. 

Mr. Loren Dickstein, Esq.

LEWIS & DICKSTEIN, P.L.L.C.

3000 Town Center, Ste. 1310

Southfield, MI   48075

(248) 263-6800

Fax: (248) 357-1371

ldickstein@sbcglobal.net

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