In PEOPLE OF THE STATE OF MICHIGAN V RICHARD LEE HARTWICK, Defendant appealed the trial court’s decision that Defendant was not entitled to immunity under § 4 of the Michigan Medical Marijuana Act (MMMA) nor was he entitled to a § 8 defense.  The Court of Appeals affirmed the trial court’s decision.
 
Defendant was a medical marijuana patient and his own caregiver, and he also served as a caregiver for five additional medical marijuana patients. Defendant submitted registry identification cards for himself and his patients as evidence.  He claimed that mere possession of the cards entitled him to a section §4 (MMMA) immunity from prosecution, as well as an affirmative defense under section §8 (MMMA).
 
Because the Defendant possessed an amount of marijuana that precluded him from §4 immunity, he needed to rely on a §8 defense.  In order to satisfy a § 8 defense, Defendant must satisfy the three elements: (1) there exists a bona fide physician-patient relationship; (2) no more marijuana than ‘reasonably necessary’; and (3) actual medical use of marijuana.   The Court also held that  “caregivers, to be protected under the MMMA, must ask for this basic information – specifically, information that details, as any pharmaceutical prescription would, how much marijuana the patient is supposed to use, and how long that use is supposed to continue.”  Hartwick at 8 (emphasis added).
 
We believe it is difficult, if not impossible, to have a physician comply with these added requirements delineated in Hartwick.  Therefore Hartwick could effectively gut the section 8 defense.
 
The Court of Appeals rejected Defendant’s argument that mere possession of a medical marijuana card was enough to support a § 8 defense.  The Court held that because (1) defendant possessed more marijuana than permitted under § 4(b), and (2) the people presented evidence to rebut the medical-use presumption under § 4(b), Defendant was not entitled to immunity from prosecution.  Hartwick at 12-13.  Further, the Court held that because Defendant did not present evidence regarding the first two elements of a § 8 defense, he was not entitled to dismissal.
 
The bottom line, this Defendant will have to go to trial without the ability to present a defense under the MMMA.
 
Michael D. Hills
 

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