Section 8 protection

HomeLessBeans said:

I like flooding LARA with change of CG forms every time we can. Assign whatever CG u want for that day. U know just Tryin to follow 'their' dumassed law

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tomcatjones said:

this was my thought. i love it.

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• • FORMAL CERTIFICATE OF QUALIFYING PATIENT - FOR APPLICATION

• • COMPLETE MEDICAL HISTORY FORM WITH PAIN MEASURES

• DOCTORS OPINION MEMO IN SUPPORT of AFFIRMATIVE DEFENSE
• AUTHENTICATING AFFIDAVIT FOR DOCTOR'S OPINION

• • MODEL AFFIRMATIVE DEFENSE & MOTION TO DISMISS

• • ESSENTIALS OF THE AFFIRMATIVE DEFENSE
  • DOCTORS OPINION MEMO IN SUPPORT of AFFIRMATIVE DEFENSE
  • AUTHENTICATING AFFIDAVIT FOR DOCTOR'S OPINION
  • PATIENT'S AFFIDAVIT IN SUPPORT OF MOTION

• • MICHIGAN MEDICAL MARIJUANA ACT TEXT
  • ANATOMY OF THE MICHIGAN MEDICAL MARIJUANA ACT
  • AFFIDAVIT OF PATIENT IN LIEU OF REGISTRY ID CARD
  • PHYSICIAN RECIPROCITY
  • PHYSICIANS STATUTE
    
  • OSTEOPATH STATUTE
    

Dr. Bob said:

I am sure the 3ma shut you down because the arguments you are making are absurd and will get people arrested. The serious errors in reasoning you were using were pointed out to you by those who know far more about the law (ie lawyers) than you do. You continued to promote getting patients arrested for doing some really stupid things, like thinking weight limits, caregiver relationships, transporting marijuana, etc were not laws but suggestions to be ignored on a routine basis.

I guess you are going to try RIU. Let's see if you can get some believers here.


Dr. Bob

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GregS said:

For what it's worth, p2p is not allowed and defensible unless an agreement can be produced in court to meet the requirements of the three prongs of the AD, and that the transferror happens to be a patient. To state that it is allowed without that qualifier is inaccurate. Rules of evidence are a mine field, and there are vagaries form one court to the next, depending on the judge. Prosecutors are practiced in discounting defense testimony. For that reason it is not to be taken lightly by the uninitiated. That is the reason for the contract we are kicking around. Without solid testimony, and best written and duly recorded, the defense would fail. Verbal testimony can be treacherous. It is ill advised for transferring patients to, for instance, rely on a transferee/patient to provide adequate verbal testimony that can succeed. Please consider that statements that insist it is protected must include this caveat.

The long and short of p2p is that it is not allowed. When parties agree to transfer between themselves and establish the necessary relationship to permit it, It becomes cg2pt, which is the only method available under the law and the most pertinent part of that argument. That is an important distinction.

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GregS said:

In fact, CL indicated to me that a document of this type can be useful in an Affirmative Defense. Are you suggesting otherwise?

Your insistence that you 'forgot' that you lied is hysterical. The post indicated is right here in this thread, and required no real effort to find. It is only one of several lies that you have banked on. Another is your statement that, " I think what was said about your attitude was 'If they get arrested and go to jail it is their own fault for listening to me.'" Please post any text that can verify that I said that. That thinking thing is not working worth a shit for you.

The issue was, yes, discussed, and pretty thoroughly. Page upon page of the three long and productive threads that you speak of, however, were censored and deleted. That you and others continue to lie about the protection the law provides under sec. 8 is not reasonable. It is an integral part of the law.

DEFENDANT’S ASSERTION OF MICHIGAN MEDICAL MARIHUANA ACT
MEDICAL PURPOSE AFFIRMATIVE DEFENSE AND MOTION TO DISMISS
What You Need To Prove; How and When to Prove It.
Citation of the law: Cite as the Michigan Medical Marihuana Act
Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of the affirmative defense,
and crates a presumption of validity of the defense where a showing is made as to its elements. “Patient and a patient's
primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving
marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense.” Generally, in
asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence.
At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must
show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.
Statutory authority to bring a motion to dismiss, and mandatory dismissal:
Section 8(b) establishes the statutory authority for a motion to dismiss. “A person may assert the medical purpose for
using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the
person shows the specified elements of the defense.” The showing must prove the elements by a preponderance of the
evidence, and where this showing is made the dismissal is mandatory.
Standing and Scope of the Affirmative defense:
The affirmative defense is available to the following people:
• Any “patient” who demonstrates the patient's medical purpose for using marihuana pursuant to this section; or
• Any patient's “primary caregiver” who demonstrates the patient's medical purpose for using marihuana pursuant
to this section.
The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of
marihuana or paraphernalia, in these proceedings:
• Any prosecution involving marihuana [Section 8(a)]
• Any disciplinary action by a business or occupational or professional licensing board or bureau [Section 8(c)1]; or
• Forfeiture of any interest in or right to property. [Section 8(c)2]
Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging
in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that
apply to the Section 8 affirmative defense and to the Act’s other more prophylactic immunities for registry participants.
The defense may not be asserted for any of the following:
• 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;
Elements of the Affirmative Defense:
1. The Gatekeeper’s Statement [Section 8(a)1]:
• A physician (Licensed MD or Osteopath)
• has stated that
• in the physician's professional opinion
• after having completed a full assessment of
• the patient's medical history and
• patient's current medical condition
• which assessment was made in the course of a bona fide physician-patient relationship
• that 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 symptoms of the patient's serious or debilitating medical
condition
2. The Reasonably Necessary Quantity [Section 8(a)2]:
• The patient and the patient's primary caregiver, if any, were collectively
• in possession of a quantity of marihuana that was
• not more than was reasonably necessary
• to ensure the uninterrupted availability of marihuana
• 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
3. The Medical Purpose [Section 8(a)3]:
• The patient and the patient's primary caregiver, if any,
• were engaged in the
• acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or
paraphernalia relating to the use of marihuana
• to treat or alleviate
• the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical
condition.
Methods of Proving the Elements of the Defense at Evidentiary Hearing
Proving the Physicians’ statement: On the Cheap.
It is essential that this defense be presentable without live testimony from the doctor. The court will likely make
defendant prove the “physician” is licensed, and so a certified record should be obtained early to avoid an MRE 902
emergency. Technically the patient can prove that the physician statement was made without hearsay objection, as the fact
that the statement was made is the operative fact in question. As the law does not allow a Judge to second guess the
physician[s professional opinion in this regard, so the defendant need only prove the statement was made, not whether it
was reasonable.
However, prosecutor will argue that defendant needs also to prove that the statement was a considered one, and
that may not be so easy. The prosecutor will argue that the statute provides the statement must be made “after having
completed a full assessment of the patient's medical history and patient's current medical condition”, and that must
being the course of a bona fide physicianpatient relationship. The defendant can testify on personal knowledge that he
was there and observed the “complete assessment” taking place, and can establish the bona fide relationship, but will the
showing be of sufficient weight to pass the preponderance test? Who is a patient to judge what constitutes a full
assessment by a doctor? The Patient can testify that the doctor said he completed the full assessment, but if the question
of whether that full assessment really took place is in issue, then such testimony would be hearsay because is would be
offered to prove the truth of the matter asserted – that the full assessment was made.
Three solutions present themselves. MRE 803(6) Hearsay exception for regularly kept business records could get
written medical reports into evidence to prove the complete assessment occurred, and even the bona fide relationship.
This would merely require compliance with MCL 902(11), and the assumption that the doctor wrote it all down. [See
MRE 902(11)] Certified records of regularly conducted activity. The original or a duplicate of a record…of regularly
conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under
oath by its custodian or other qualified person certifying that….the record is contemporaneous to the complete
assessment, in the course of regular activity, and according to regular practice. Counsel should obtain this affidavit
early, as prior notice of the declaration is a condition to self authentication. Of course, if seems obvious but that MRE
803(4) would apply. “Statements made for purposes of medical treatment or medical diagnosis in connection with
treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”
However, counsel may be confronted with the argument that the rule admits patient statements made to aid in
diagnosis, not those of the Doctor made to express the completeness of the doctor’s assessment. Counsel may simply
wish to argue that the element should be interpreted to mean that the “statement made” language includes the statement
that the doctor made a full assessment of the history and current condition. That is, that he 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 physicianpatient relationship, the patient is likely….” In this
interpretation, the patient’s testimony would be admissible to establish the entire element, and sound something like
this, “He stated he had made a full assessment of my medical history and current condition, and that he had formed a
professional opinion…, which was that I was likely to receive therapeutic or palliative benefit from the use of marijuana
to (treat or alleviate) my (serious medical condition or debilitating medical condition or symptoms thereof).

All of this is obviously out of your depth B*B.

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GregS said:

Bob. Bob.

We are not talking about registry. It has been clearly stated that the protection available under the AD do not require it. We are prohibited from engaging only in activities proscribed in sec. 7. That you equate sec. 8 to a loophole is characteristic for you. You just don't get it. It is the law of the land and equally as valid as sec. 4. I have never argued, and will not argue, that registry does not protect from arrest. That is old news.

I have described facts to carry my arguments. Won't you please do the same to support that more than one caregiver, or more than five patients, or a quart of marinara made with infused olive oil as an alternative to smoking are not protected? It is about time your lies, speculation, and hyperbole stop.

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