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Affirmative Defense

Affirmative Defense

The affirmative defense is set out in MCL 333.26428 which states:

A. Except as provided in section 7, a patient and a patient’s primary care giver, if any, may assert the medical purpose for using marihuana, and this defense shall be presumed valid where the evidence shows that:

1. 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;

2. The patient and the 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

3. The patient and the patient’s primary caregiver, if any, were engage in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation or marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient

B. 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 show the element listed in subsection (a).

It seems as though this section of the act merely sets forth what is contained in section 4, as described above, into an affirmative defense that can be used in court in order to gain summary disposition of the case. However, the language contained in section 8 is not identical to that contained in section 4, which has caused judges to come to differing interpretations of what qualifications are required to assert the affirmative defense as will be illustrated below in the discussion of the People v. Redden case.

Additionally, the applications and any supporting information submitted by the qualifying patients including information regarding their primary caregiver and physicians shall be kept confidential. Also, the Michigan Department of Community Health shall maintain a confidential list of the persons whom the department has issued registry identification cards, which is exempt from disclosure to persons under the Freedom of Information Act. The Act also sets forth that law enforcement will be provided with information concerning whether a persons registry identification card is valid without disclosing more information than is reasonably necessary to fulfill that purpose.

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David Rudoi has dedicated himself to fighting and winning criminal cases in Oakland, Macomb, and Wayne Counties. With every case, he brings expertise, understanding, and passion to the cause.