Legal User Guide: Basic Facts About Michigan's Prop 1

[User]

Keys to Understanding the Michigan Medical Marijuana Law
Enacted by voters in a landslide election (63%) on November 4, 2008, Prop 1 is now to be cites as the "Michigan Medical Marihuana Act."
The law states, "The medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act ."
The law takes effect 10 days after the official declaration of the vote, which is scheduled for November 24, 2008. Expect this law to take effect December 4, 2008.

The Department of Community Health has 120 days from the effective date of the new law to establish rules and commence issuing Registry ID cards. That's April 2, 2009.

The Act gives the Michigan Department of Health the duty to issue Registry ID Cards, which will take a maximum 20 days to get. Registry information is strictly confidential, and cannot be used as probable cause or to target you or your primary care giver. If the Department gives out your identifying information inappropriately, it is a crime.

If Registry ID Card is not issued within 20 days after proper application, the qualifying patient may "self-issue" by executing a notarized statement, available the Free Form Bank, and keeping it on hand. This is called an Affidiavit in lieu of Registry Identification Card.

To get a Registry ID Card the patient must get a written certification from a doctor stating the patient's debilitating medical condition and stating that, in the physician's professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition. The certificate is available at the Free Form Bank.

Doctors as Gatekeepers. Only a Physician licensed in Michigan can make a valid statement or certification, and nothing in the act allows any court to second guess a physician’s professional opinion. This is not a prescription, and cannot be written on an Rx pad. Doctors exercising independent responsible medical judgment are to the unquestioned gatekeepers to access under the Act, and the law provides that unless the physician fails to honestly make a professional evaluation of the patient, the Physician (MD or Osteopath) is immunized against legal or professional association sanctions that might otherwise result from their expressing of professional opinions regarding the medical efficacy of legitimate medicinal Marijuana use. It is up to each physician to form their own professional opinion on the efficacy of marijuana for medicinal use. The ADA also makes it inappropriate for a Doctor to be dismissive of a patient’s request of information, or to make social or moral judgments about the use of marijuana. The only questions are; what is the serious or debilitating medical condition, and is the patient likely to receive therapeutic benefit by using marijuana to treat or alleviate that condition or its symptoms. "Physician" means an individual licensed as a physician under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556.

Benefit of Participation in the Formal Registry: A registered "Qualifying Patient", and a designated "Primary Caregiver", who have in their possession Registry ID Cards, enjoy rebuttable presumptions of legitimacy. This creates a prophylactic immunity from arrest.

A designated "Primary Caregiver" must be at least 21with no prior felony convictions involving illegal drugs, and can cultivate 12 plants (kept in a locked facility), and possess 2.5 oz. of marijuana, for each of up to 5 patients.The law specifically bars arrest, prosecution, criminal or civil penalty, disciplinary action, and bars seizure or forfeiture of medical use marijuana. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount

A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marijuana. Any such compensation shall not constitute the sale of controlled substances.

A registered "Qualifying Patient" may possess 2.5 oz. of marijuana for medical use, and can cultivate 12 plants (kept in a locked facility) unless a "primary caregiver" has been designated. The law specifically bars arrest, prosecution, criminal or civil penalty, disciplinary action, and bars seizure or forfeiture of medical use marijuana.

"Enclosed, locked facility" means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.

Bystanders merely in the presence or vicinity of the medical use of marijuana in accordance with the Act, or assisting a registered qualifying patient with using or administering marijuana, and suppliers of paraphernalia are legally protected under state law too.

A stand alone "Medical Purpose Affirmative Defense" is established by the Act. It protects patients and primary caregivers, even if they do not have Registry ID Cards. Defendants with charges pending on December 4, 2008 may successfully assert this defense if a licensed physician has stated, in this professional opinion, after complete assessment of medical history and current medical condition, that the patient has a serious or debilitating medical condition, and is the patient likely to receive therapeutic benefit by using marijuana to treat or alleviate that condition or its symptoms. This absolute defense very robust, not difficult to prove for legitimate medical use, and mandatory on the court. It is fully explained in "The Essentials of the Affirmative Defense", which is available, along with a model Motion to Dismiss and Affidavit in Support at the Free Form Bank.

This umbrella Affirmative Defense is the key to the Act. Using this defense, the specific limits give way to a reasonableness standard; not more than is reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition

All other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act. This protects driver's, not under the influence, from Michigan's OWI law (MCL 257.645), which makes it a crime for drivers to have any amount of a controlled substance in their body, even if it has been weeks or months since they used marijuana.
Parental Rights are protected. A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

Disqualifying Factors that preclude protections under the Act
Smoking marijuana "in any public place";
Smoking marijuana on any form of public transportation;
Any use by a person who has no serious or debilitating medical condition;
Any conduct where being under the influence would constitute negligence or professional malpractice per se;
Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
Any use or possession in a school bus;
Any use or possession on the grounds of any preschool, primary, or secondary school;
Any use or possession in any correctional facility

Under the Act, Doctors are able to certify qualifying patients for an expansive list of specified debilitating medical conditions, plus any other "chronic or debilitating disease or medical condition or its treatment that produces..." symptoms or side effects like appetite loss, severe and chronic pain; severe nausea, seizures, severe and persitant spasms.

Doctors can also make statements (written or oral) that support asserting the Affirmative Defense for an unlimited number of other serious for debilitating medical conditions. The Affirmative Defense applies so long as a physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or its symptoms.

List of Some Debilitating Medical Conditions Specified in the Statute:
Cancer
Glaucoma
Positive HIV
AIDS
Hepatitis C
Amyotrophic lateral sclerosis (ALS is Lou Gehrig's Disease)
Crohn's disease
Agitation of Alzheimer's disease
Nail patella
Epileptic seizures
Multiple Sclerosis (MS)


Source

[timireferseed]

User, am I to understand that even if I cant find a Dr. to rwite a recommendation that if I grow and use I can say and use the provision in the new law to circumvent charges of possesion and manufacture?

[User]

i really don't feel comfortable answering your question. i just copied & pasted this and have no real knowledge about this. i would point you to the source of the article.
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[FreakNature]

Originally Posted by timireferseed

User, am I to understand that even if I cant find a Dr. to rwite a recommendation that if I grow and use I can say and use the provision in the new law to circumvent charges of possesion and manufacture?

I don't see that in the info provided. I'm not a lawyer, but I'm also not a moderator, so I feel comfortable answering. The law as described above requires a doctor to provide the valid statement or certification. There is no clause allowing for self-diagnosis. However, as long as you have a valid doctor's recommendation, you can get by without a valid registry ID card.

It also looks like, if one was arrested and has charges pending on 12/4/08, that person may get a doctor's certification retroactively that will allow him to benefit from the new law (possibly avoiding a conviction) - but the info there isn't clear to me.

[timireferseed]

Originally Posted by User

i really don't feel comfortable answering your question. i just copied & pasted this and have no real knowledge about this. i would point you to the source of the article.
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Bro, I have poured over the bill several time and thats how I interped that provision. It appears to me that one can grow and use without fear of persicution,provided one has a disibility that was listed in the new bill.By the way the People of Michigan "TOOK" this right back from the government.Thats empowering to all for the cause We "smoked" them anti-Cannibis,liquer drinkin hypocrytes at the polls. You should have seen the t.v. add the anti-Cannibis bunch put on the air,It was "reefer Madness" all over again. Didnt fool my Parents who are in thier late 60's. HA!~!

[User]

Originally Posted by FreakNature

I'm not a lawyer, but I'm also not a moderator, so I feel comfortable answering.

[timireferseed]

FARM OUT MAN, RIGHT HAND

[timandrene]

Is it my understanding that the Michigan law that takes effect on Dec 4 allows me to smoke providing I have a notorized affidavit in lieu of the ID card or do I have to wait the 120 days for the DCH to have it's rules and regulations in place?

A little bit of help here!

Thanks, Tim & Rene'

[MsRedEye]

Proposal 1 - Michigan

I'm not so sure you would be a legal at this point until the Department of Community Health approves your application. As I read the act, DCH has 15 days to make a decision on your application and then five days to issue you a card.

If the DCH does not meet the standard of promptness timeframes outlined in the act, I wonder if patients could seek relief by requesting an administrative law hearing. The burden should be on DCH to do what they are legally required to do.