New Appellate Decision gives trial courts and Michigan Criminal Defense Attorneys guidance on defenses available under the Medical Marijuana Law

The Michigan Court of Appeals recently issued an opinion acknowledging that courts in Michigan, prosecutors and defense attorneys face a near impossible task when trying to interpret Michigan’s medical marijuana law. In People v. Ted Anderson (Opinion No. 300641), the court issued a ruling that gives trial courts some guidance on the defenses provided under the Michigan Medical Marijuana Law (MMMA).


In June of 2009, police discovered marijuana and marijuana plants in Mr. Anderson’s homes. He was subsequently charged with manufacture of marijuana (also called Manufacture/Delivery (intent to deliver) Marijuana). Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. After a hearing, the trial court determined that Anderson had not established the elements of a § 8 defense and denied his motion. Moreover, it determined that, because Anderson failed to establish the elements of his defense at the hearing, he could not present a § 8 defense at his trial.

On appeal, Anderson argued that the trial court improperly required him to prove through expert testimony that the amount of marijuana plants and plant material that he possessed was reasonably necessary to ensure the uninterrupted availability of marijuana to treat his back pain. He also argued that the trial court erred when it precluded him from presenting a § 8 defense at his trial.

The court, after considering the Michigan Supreme Court decision in People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012), made the following ruling:

The trial court did not err when it determined that, to the extent that Anderson failed to present sufficient evidence to establish his § 8 defense, he would be unable to present that defense at trial. Kolanek, 491 Mich at 412-413, citing People v Reed, 294 Mich App 78, 86; 819 NW2d 3 (2011) and Anderson, 293 Mich App at 65 (M. J. KELLY, J., concurring). However, the trial court erred when it determined that the provisions of § 4 applied to the affirmative defense stated under § 8. Kolanek, 491 Mich at 403. Hence, Anderson did not have to prove that his plants were kept in an enclosed locked facility. See 333.26424(a). For the same reason, the trial court erred to the extent that it determined that the amounts stated under § 4 altered Anderson’s burden of proof under § 8. The trial court also erred by assessing the weight and credibility to be given Anderson’s evidence and by resolving any factual disputes. Kolanek, 491 Mich at 411. The trial court’s sole function at the hearing was to assess the evidence to determine whether, as a matter of law, Anderson presented sufficient evidence to establish a prima facie defense under § 8 and, if he did, whether there were any material factual disputes on the elements of that defense that must be resolved by the jury. Id. at 412-413.

In summary, the court ruled that a Section 8 defense must first be presented at a pretrial hearing. If the defendant fails to present sufficient e evidence at the pretrial Section 8 hearing, he will be unable to present said evidence as a defense at trial. Conversely, the court ruled that the provisions of Section 4 do not apply to the affirmative defense under Section 8. Because of this, the limitations under Section 8, including the requirement that the marijuana be grown in an enclosed locked facility and various quantity limitations, do not apply to a defense presented under Section 4. The rule now that trial courts must follow at a Section 8 hearing is expressly limited to making a determination as to whether the defendant has presented sufficient evidence to establish a basic defense under that section and, if he did, whether there is any legitimate factual disputes on the elements of that defense that must be resolved by the jury.


The case is not as big of a victory for medical marijuana patients as it could have been but it does provide some constraints on a waive of anti-medical marijuana judicial activism and, up until now, unrestrained violations of the constitutional principle of Separation of Powers.


Michigan Criminal Defense Attorney


If you have any questions, please contact Michigan Criminal Defense Attorney Randy M. Lewis at (248) 263-6800. Mr. Lewis is a partner with the Criminal Defense Law Firm of LEWIS & DICKSTEIN, P.L.L.C. and he is widely considered to be one of the top trial lawyers in the State of Michigan.