Medical Marijuana

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Sunday, January 6, 2013

Supreme Court Rules That Marihuana Cooperatives Are Illegal But Allows Defendant To Assert Affirmative Defense

By Michael Nichols
Categories: Medical Marijuana

The Michigan Supreme Court recently issued their second opinion addressing the Michigan Medical Marihuana Act (MMMA).  The case, People v Bylsma, involved the legality of growing marihuana cooperatively.  The defendant, Ryan Bylsma, was a registered primary caregiver for two registered patients and he leased warehouse space to grow marihuana for his patients. 

In September of 2011, a city inspector noticed illegal electrical lines running alongside water lines.  Apparently the city inspector forced his way inside the warehouse to investigate.  His investigation revealed approximately 88 marihuana plants growing in three separate “booths”.  The police were notified and Mr. Bylsma was eventually arrested for manufacturing marihuana plants in violation of the public health code. 

Mr. Bylsma filed a motion to dismiss based upon section 4 of the MMMA (MCL 333.26424).  Mr. Bylsma’s argument was that he only possessed 24 of the marihuana plants (12 for each of his two registered patients) and that the other 64 plants belonged to patients and caregivers that he shared his facility with. 

The trial court denied the motion to dismiss on the grounds that the MMMA required that each patient’s plants be “kept in an enclosed, locked facility that can be accessed by one individual”.  Mr. Bylsma then appealed the decision to the Michigan Court Of Appeals who affirmed the lower court’s ruling.  The case then came before the Michigan Supreme Court who on December 19, 2012 issued an opinion declaring cooperative grow operations to be illegal and thereby preventing Mr. Bylsma from using section 4 of the MMMA. 

“This case is important for a few reasons.  First, it informs the citizens of Michigan about what is required to legally grow medicine as a caregiver.  It also reaffirms the Supreme Court’s first MMMA opinion which held that a defendant need not meet the requirements of section 4 in order to assert a section 8 affirmative defense” says attorney Joshua Covert.  Although Mr. Bylsma may have lost his motion to dismiss based upon section 4 of the MMA, the Supreme Court remanded the case back down to the trial court to allow for Mr. Bylsma to present his affirmative defense at an evidentiary hearing.

At his section 8 hearing Mr. Bylsma will need to provide evidence for each of the following three elements:

1) He had a physician’s recommendation to medically use marihuana prior to police contact;

2) He was growing the marihuana for medicinal use; 

3) He did not possess more than reasonably necessary to prevent an uninterrupted supply of medicine.

If Mr. Bylsma can provide evidence that he meets each of the three elements of the affirmative defense and there are no questions of fact, the trial court judge must dismiss the charges.  In the alternative, if there are questions of fact, he may be allowed to present the affirmative defense at trial.  If you are a registered caregiver or patient and have been charged with violating the Public Health Code you need an attorney who understands the MMMA and more specifically the section 8 defense.  Call the Nichols Law Firm today at 517-432-9000. 

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.