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People v Kolanek – Need Physician Certification After Enactment of the MMMA, but before arrest

The case of People v. Kolanek involves a statutory interpretation of Section 8 (MCL 333.26428) of the Michigan Medical Marihuana Act (MMMA) as does much of the pending litigation of defendants using medical marijuana as a defense under the Act. Recall, Section 8 is somewhat of a “catchall clause” in that a defendant charged with possession of marijuana does not need to have valid registry card at the time of his arrest to use the MMMA as a valid defense. See People v Redden, 290 Mich App 65, 81; 799 NW2d 184 (2010). The statutory interpretation at issue in People v. Kolanek is the initial part of Section 8 of the MMMA, which allows a defendant charged with possession of marijuana to use the medical marijuana defense if “[a] physician has stated” that the patient is likely to receive therapeutic or palliative benefit from the use of marijuana (MCL 333.26428(a)(1)).

The pertinent facts of People v. Kolanek are quite easy to follow. On April 6, 2009, the defendant was arrested for possession of marijuana. Shortly after his arrest, the defendant went to see his doctor (who had been treating the defendant for an extended period of time for Lyme disease) on April 12, 2009. Understanding that the defendant would likely receive therapeutic benefit from the medical use of marijuana, the physician diagnosed the defendant with a debilitating medical condition and the defendant was soon after issued a registration card by the Michigan Department of Community Health. This had not been the first time that the defendant and his physician had conversed on the issue of medical use of marijuana. In July of 2008 (before the MMMA had been voted on), the defendant had discussed the possibility of the medical use of marijuana and the physician indicated that he would support the defendant using medical marijuana for medical purposes if it were to become legal.

The Court of Appeals held that to use the medical use of marijuana defense under the MMMA, the phrase “has stated” is to be interpreted that the physician’s opinion be stated after the enactment of the MMMA but prior to a defendant being arrested. This is not all that surprising. In the summer of 2008, the state of Michigan was yet to even vote on the medical use of marijuana and anything that would have been discussed would have been purely speculative as to what the law would be in the future. While it could be argued that disallowing the medical marijuana defense after a physician has stated that he would support the medical use of marijuana if it were to be legal and is later legalized is against the spirit of the MMMA, the affirmative defense did not exist at that time, and discussions on the subject would have been mere guessing as to what medicine is going to be allowed in the future. That the defendant was able to receive approval for the medical use of marijuana after his arrest was also not to be a valid defense as this would be similar to allowing a defendant arrested for possession of a concealed weapon to avoid prosecution by going and getting a permit for the gun following his arrest.

What is positive to come from this opinion for those hoping to use the medical marijuana defense is its early reaffirmation of the prior holding in People v Redden which, as previously stated, rejects the argument that a valid registry identification card is required to assert a defense under the Michigan Medical Marihuana Act.

An application for leave to appeal was granted on Order of the Michigan Supreme Court, the Michigan Supreme Court opinion for People v. Kolanek should be handed down by August of 2012.