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Tuesday, January 29, 2013
By Michael Nichols
Categories: Medical Marijuana
Attorney Joshua Covert recently represented a client in Berrien County who was charged with manufacturing marihuana. The client was a registered Michigan Medical Marihuana Act (MMMA) patient who grew more than the twelve plants as allowed by law and did not grow the plants in an enclosed and locked facility. Because he had more plants that allowed and did not keep them enclosed and locked he was unable to use section 4 of the MMMA to prevent arrest or prosecution. Fortunately the client hired attorney Joshua M. Covert of the Nichols Law Firm. Attorney Covert has spent countless hours reading as much information about the MMMA as possible. Mr. Covert knew that a recent Michigan Supreme Court case, People v Kolanek, held that one does not need to prove that they were within the section 4 requirements in order to assert a section 8 affirmative defense.
People v Kolanek also held that trial courts are required to hold an evidentiary hearing to determine two issues. First, should the case be dismissed? Second, should the defendant be allowed to assert a section 8 defense. A dismissal is very difficult to obtain in cases where a defendant possessed more than 12 plants because the defendant must prove that they possessed no more medicine than reasonably necessary to prevent an uninterrupted supply of medicine. Generally questions of reasonableness are a question of fact left for the jury to decide.
After holding an evidentiary hearing and listening to testimony from both the client and the physician who recommended the use of marihuana, the trial court issued an opinion which allows the client to assert his affirmative defense to the jury. This is important because without the opinion the client would have likely been precluded from even mentioning the words “medical marihuana” to the jury. Now with the ability to assert his defense, it will be up to the jury to decide if the client should be protected from prosecution by the MMMA.
“I feel that asserting the affirmative defense definitely gives us a leg up at trial. It is important to remember that the MMMA was a voter initiative and that it was passed in every county in Michigan and that it passed by an overwhelming majority” says attorney Joshua M. Covert. If you are a MMMA patient and have been charged with or investigated for violating the MMMA call the attorneys at the Nichols Law Firm and speak with attorneys who have experience conducting section 8 affirmative defense evidentiary hearings. 517-432-9000.