Section 8 May Be Used as Affirmative Defense if Asserted Before Evidentiary Hearing

On May 31, 2012, the Michigan Supreme Court decided the case People v. Kolanek and clarified much of the Michigan Medical Marijuana Act (“MMMA”). The case was sent back to trial requiring an evidentiary hearing in order for the defendant to assert a Section 8 affirmative defense. This case held that Section 8 of the MMMA may be used as an affirmative defense by Medical Marijuana patients or a person generally if it is asserted before trial and an evidentiary hearing is requested and held.
The court also clarified issues that existed between Section 4 and Section 8 of the MMMA, and held that Section 4, [MCL 333.264.24] applies only to qualifying patients who have obtained a Medical Marijuana registry card. The patients who have MMMA Registry cards are provided broad immunity from arrest, prosecution, or penalty from the laws currently in place criminalizing marijuana possession, manufacturing, use, and delivery in Michigan under Section 4. Section 8 of the MMMA applies to medical marijuana patients generally, and provides an affirmative defense to charges involving marijuana for its “medical use” (as defined by MCL 33.2642).
The court ultimately held in order to present a valid affirmative defense under Section 8, the defendant is not required to also establish the requirements of Section 4 at the evidentiary hearing, the burden of proof rests with the defendant and the defendant “may” move to dismiss the charges.


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