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Wednesday, August 18, 2010
By Michael Nichols
In 2008, an overwhelming majority of Michigan voters initiated legislation legalizing medical marijuana. Since then, the law has been tested in court with mixed results. Of the ongoing battles, perhaps none exemplifies the issues better than that of a case being litigated by Michigan OWI attorney Mike Nichols.
Mr. Nichols client was arrested in April 2010 for driving under the influence and for marijuana possession (after the police searched his vehicle). Mr. Nichols client suffers from debilitating and chronic pain as the result of a 1996 auto accident, and then a fall from a tree a few years later.
A few weeks following his arrest, Mr. Nichols client saw his doctor. Based on his condition, his doctor certified him for medical marijuana. After the certification, Mr. Nichols filed a motion to dismiss, using the defense that his client qualified to use and possess the marijuana under the 2008 law.
Mr. Nichols cited Section 8 of the law, which allows a person who is not certified at the time of the arrest, but who is medically qualified, to claim the protection of the law, even if they are certified to use medical marijuana after the arrest.
Under Section 8, when this happens, the court must dismiss the charges after a hearing if the court determines that the doctor certified the defendant under a bona fide doctor patient relationship. The court presumably must believe that the prescription was obtained based on a true medical need and not based on a desire to have criminal charges dismissed.
Mr. Nichol's case is pending before a judge who is simultaneously deciding the same issue for two other defendants. The case, which has attracted some significant local media attention, promises to be persuasive in future cases in the state.
For now, the case is creating a "bottleneck" in the court system, while the parties wait for the appeals court to give them definitive guidance on how to interpret Michigan's Medical Marijuana Law in this context. Mr. Nichols was recently interviewed by WLNS TV 6 on the issues of questions that lawyers are posing and the effect of the new law on courts in the state. Mr. Nichols is considered an expert in OWI/OWID and criminal law.