8.3Immunity Under § 4

Section 4 contains several subsections that provide immunity to different groups under different circumstances. “Sections 4(a) and 4(b) [of the MMMA, MCL 333.26424(a) and MCL 333.26424(b),] contain parallel immunity provisions that apply, respectively, to registered qualifying patients and to registered primary caregivers.” People v Bylsma (Bylsma II), 493 Mich 17, 28 (2012). Section 4 also provides immunity to physicians, persons who provide marijuana paraphernalia for purposes of a qualifying patient’s medical use of marijuana, and persons who are in the presence or vicinity of the medical use of marijuana or who are assisting a registered qualifying patient with using or administering marijuana. Section 4 also provides immunity to registered qualifying patients and primary caregivers for manufacturing marihuana-infused products. MCL 333.26424(m).

A.Procedural Aspects of § 4

“[E]ntitlement to immunity under § 4 is a question of law to be decided by the trial court before trial[.]” People v Hartwick, 498 Mich 192, 212 (2015), affirming in part and reversing in part People v Hartwick, 303 Mich App 247 (2013), and People v Tuttle, 304 Mich App 72 (2014).

“A defendant may claim entitlement to immunity for any or all charged offenses.” Hartwick, 498 Mich at 217. “Once a claim of immunity is made, the trial court must conduct an evidentiary hearing to factually determine whether, for each claim of immunity, the defendant has proved each element required for immunity.” Id.

The requirements set forth in Hartwick, 498 Mich 192, also apply to civil cases where a plaintiff is seeking immunity under § 4. Varela v Spanski, 329 Mich App 58, 75 (2019) (holding “a plaintiff must plead facts showing that they were compliant with the MMMA to avoid summary disposition under MCR 2.116(C)(8)”).¹

Section 4 “provides absolute immunity from prosecution to those individuals who can establish the required elements of the statute,” and where entitlement to § 4 immunity is established “the state simply cannot bring charges against the defendant ‘for the medical use of marihuana in accordance with’ the MMMA.” People v Cook, 323 Mich App 435, 450 (2018), citing MCL 333.26424(a).² “Because Section 4 immunity ‘implicate[s] the very authority of the state to bring the defendant to trial,’ it is not the type of defense that is waived by an unconditional guilty plea.” Cook, 323 Mich App at 450, citing People v New, 427 Mich 482, 495 (1987) (noting that “[a]n unconditional guilty plea does not waive claims that ‘implicate the very authority of the state to bring the defendant to trial’”) (alteration omitted).

If facts demonstrating compliance with the requirements of § 4 are established, the party claiming § 4’s protection must also “demonstrate that he or she was ‘subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege . . . for the medical use of marihuana[.]’” Eplee v Lansing, 327 Mich App 635, 657 (2019), quoting MCL 333.26424(a) (emphasis omitted; first alteration in original). See also Varela, 329 Mich App at 75, 76 (noting the two-step analysis requires that the plaintiff first plead facts showing compliance with § 4, and second, that the trial court determine whether the plaintiff was subject to a penalty or the denial of any right or privilege because of the medical use of marijuana). Accordingly, § 4(a) “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.” Eplee, 327 Mich App at 657 (holding plaintiff did not have a cause of action under § 4(a) against a public employer who rescinded a conditional offer of at-will employment after plaintiff tested positive for THC as a result of medical marijuana use).

B.Standard of Review

The “specific factual findings made by the trial court in a § 4 immunity hearing are reviewed under the clearly erroneous standard, and questions of law surrounding the grant or denial of § 4 immunity are reviewed de novo. Further, the trial court’s ultimate grant or denial of immunity is fact-dependent and is reviewed for clear error.” Hartwick, 498 Mich at 214-215.

C.Burden of Proof

A defendant who claims § 4 immunity “places himself [or herself] in an offensive position, affirmatively arguing entitlement to § 4 immunity without regard to his or her underlying guilt or innocence of the crime charged.” Hartwick, 498 Mich at 216-217. Accordingly, the defendant bears the burden of proving § 4 immunity by a preponderance of the evidence. Hartwick, 498 Mich at 217.

D.Qualifying Patients

Qualifying patients are provided immunity under MCL 333.26424(a) and MCL 333.26424(m).

MCL 333.26424(a) provides immunity as follows:

“A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with [the MMMA], provided that the qualifying patient possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana^[3] and usable marihuana equivalents,^[4] and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.”

The elements required to establish immunity under § 4(a) “consist of whether, at the time of the charged offense, the defendant:

(1) was issued and possessed a valid registry identification card,

(2) complied with the requisite volume limitations of § 4(a)[, which permits up to 2.5 ounces of usable marijuana and up to 12 marijuana plants,] . . . ,

(3) stored any marijuana plants in an enclosed, locked facility, and

(4) was engaged in the medical use of marijuana.” Hartwick, 498 Mich at 217-218.

Registered qualifying patients are provided immunity for the manufacture of marihuana-infused products as set out in MCL 333.26424(m):

“A person shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for manufacturing a marihuana-infused product if the person is . . . [a] registered qualifying patient, manufacturing for his or her own personal use.”

Patients may not transfer a marihuana-infused product to any individual. MCL 333.26424(n).

A qualifying patient may not transport or possess a marihuana-infused product in or upon a motor vehicle except under specific circumstances. MCL 333.26424b(1). Unauthorized transportation or possession of a marihuana-infused product in or upon a motor vehicle is a civil infraction. See Section 5.13.

E.Primary Caregivers

Primary caregivers are provided immunity under MCL 333.26424(b) and MCL 333.26424(m).

MCL 333.26424(b) provides immunity as follows:

“A primary caregiver who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the [Cannabis Regulatory Agency’s⁵] registration process with the medical use of marihuana in accordance with [the MMMA]. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses marihuana in forms and amounts that do not exceed any of the following:

(1) For each qualifying patient to whom he or she is connected through the [Cannabis Regulatory Agency’s] registration process, a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents.^[6]

(2) For each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.

(3) Any incidental amount of seeds, stalks, and unusable roots.”

The elements required to establish immunity under § 4(b) “consist of whether, at the time of the charged offense, the defendant:

(1) was issued and possessed a valid registry identification card,

(2) complied with the requisite volume limitations of . . . § 4(b)[, which permits up to 2.5 ounces of usable marijuana and up to 12 marijuana plants for each registered qualifying patient who has specified the primary caregiver during the state registration process],

(3) stored any marijuana plants in an enclosed, locked facility, and

(4) was engaged in the medical use of marijuana[ (i.e. was assisting connected qualifying patients with the medical use of marijuana)].” Hartwick, 498 Mich at 217-218.

Registered primary caregivers are provided immunity for the manufacture of marihuana-infused products as set out in MCL 333.26424(m):

“A person shall not be subject to arrest, prosecution, or penalty in any manner or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for manufacturing a marihuana-infused product if the person is . . . [a] registered primary caregiver, manufacturing for the use of a patient to whom he or she is connected through the [Cannabis Regulatory Agency’s] registration process.”

Primary caregivers may not transfer a marihuana-infused product to any individual who is not a qualifying patient to whom he or she is connected through the [Cannabis Regulatory Agency’s] registration process. MCL 333.26424(o).

A primary caregiver may not transport or possess a marihuana-infused product in or upon a motor vehicle except under specific circumstances. MCL 333.26424b(1). Unauthorized transportation or possession of a marihuana-infused product in or upon a motor vehicle is a civil infraction. See Section 5.13.

F.Detailed Discussion of the Elements Required to Establish Immunity Under §§ (4)(a) and (4)(b)⁷

The elements required to establish § 4 immunity are nearly identical for §§ 4(a) and 4(b). See Hartwick, 498 Mich at 217-219 (discussing the elements to establish immunity under both sections in conjunction). Note that the requirements set forth in Hartwick also apply to civil cases where a plaintiff is seeking immunity under § 4. Varela v Spanski, 329 Mich App 58, 77, 78 (2019).

1.Element 1: Valid Registry Identification Card

“The court must examine the first element of immunity—possession of a valid registry identification card—on a charge-by-charge basis.” Hartwick, 498 Mich at 218. Generally, a defendant will either satisfy the first element by possessing a valid card at all times relevant to the charged offenses or will fail to satisfy the element by lacking possession of a valid card. Id. However, “[i]n some cases, there may be a gap between a qualifying patient’s or a primary caregiver’s earliest conduct underlying the charged offenses and his or her most recent conduct. A court must pay special attention to whether the effective date or expiration date of a registry identification card occurred within this gap and determine whether the conduct occurred when the patient or caregiver possessed a valid registry identification card. A qualifying patient or primary caregiver can only satisfy the first element of immunity for any charge if all conduct underlying that charge occurred during a time when the qualifying patient or primary caregiver possessed a valid registry identification card.” Id.

a.Residency Required

“Michigan residency is a prerequisite to the issuance and valid possession of a registry identification card.” People v Jones (Cynthia), 301 Mich App 566, 578-579 (2013). See also MCL 333.26426(a)(6) (specifically requiring proof of Michigan residency before the issuance of a registry identification card).⁸

b.Issuance of Card After Commission of Offense

A defendant is not immune from prosecution under § 4 if he or she has been approved for but not yet issued a registry identification card at the time of the purported offense. People v Reed (Brian), 294 Mich App 78, 86-87 (2011). Section 4(a) “ties the prior issuance and possession of a registry identification card to the medical use of marijuana[;⁹]” accordingly, because the defendant had not yet been issued a registry identification card at the time of his offense, he was “not immune from arrest, prosecution, or penalty.” Reed (Brian), 294 Mich App at 87 (emphasis in original).

c.Present Possession Required

“[A] defendant [must] presently possess his or her registry identification card in order to qualify for § 4(a) immunity from arrest[;] . . . someone ‘possesses’ a registry identification card only when the registry identification card is reasonably accessible at the location of that person’s marijuana possession and use.” People v Nicholson (James), 297 Mich App 191, 200, 201 (2012) (holding that the defendant was not immune from arrest under § 4(a) because the “paperwork showing that he had been issued the equivalent of a registry identification card at the time [a] police officer found him to be in possession of marijuana was not reasonably accessible at the location where he was requested to produce it because he was in possession of marijuana in another individual’s vehicle away from his residence[,] where the paperwork for his card was located”).

d.Failure to Qualify for Immunity from Arrest Does Not Automatically Preclude Immunity from Prosecution or Penalty

“[A] person can fail to qualify for immunity from arrest pursuant to § 4(a), but still be entitled to immunity from prosecution or penalty[; t]herefore, courts must inquire whether a person ‘possesses a registry identification card’ at the time of arrest, prosecution, or penalty separately.” Nicholson (James), 297 Mich App at 199 (concluding that, although the defendant was not immune from arrest because his registry identification card was not reasonably accessible at the time of his arrest, the “production of his registry identification card in the district court [when he moved to dismiss his prosecution for possession of marijuana] was sufficient[]” to render him immune from prosecution under § 4(a)).

e.Revocation of Card Irrelevant to Validity

The defendants, holders of registry identification cards who had been convicted of felonies prior to searches that revealed marijuana manufacturing operations in their homes, were not eligible for patient immunity under § 4(a) or caregiver immunity under § 4(b) because, as felons, they could not be caregivers under § 4(b), and they each exceeded the volume limitations for patients under § 4(a); the fact that their caregiver cards had not been revoked by the Department of Licensing and Regulatory Affairs¹⁰ was “irrelevant.” People v Tackman, 319 Mich App 460, 470-471 (2017). The only revocation provision within the MMMA requires the revocation of a caregiver card “if the caregiver ‘sells marihuana to someone who is not allowed to use marihuana for medical purposes under’ the MMMA.” Tackman, 319 Mich App at 471, quoting MCL 333.26424(k). “The definition of ‘caregiver’ specifically restricts that status to persons who have ‘not been convicted of any felony within the past 10 years,’ or ‘of a felony involving illegal drugs or . . . that is an assaultive crime,’ without regard for whether that person happened to possess a caregiver card at the time of the conviction.” Tackman, 319 Mich App at 471, quoting MCL 333.26423(k) (ellipses in original). “Thus, whether the caregiver card was revoked or not [at the time of the searches was] irrelevant.” Tackman, 319 Mich App at 471-472 n 4 (noting that if the department issued the defendant another caregiver card after his conviction, the card was issued “in error” because the defendant no longer met the definition of a caregiver after his conviction). The trial court erred by analogizing the “failure to revoke a caregiver card to the failure of the Secretary of State to revoke a driver’s license following a driving offense calling for such revocation.” Id. at 472. “[T]here is no similar scheme within the statutes criminalizing marijuana and the MMMA[;] [r]ather, the manufacture and delivery of marijuana remains a crime in this state[,]” and “the revocation of a MMMA caregiver card has no bearing on the criminality of delivery and manufacture of marijuana.” Id.

2.Element 2: Volume Limitations

“The second element—the volume limitations of § 4(a) and § 4(b)—requires that the qualifying patient or primary caregiver be in possession of no more than a specified amount of usable marijuana^[11] [and usable marijuana equivalents,¹²] and a specified number of marijuana plants.” Hartwick, 498 Mich at 218. “[I]n evaluating a § 4 immunity claim, consideration must be given not only to the amount of usable marijuana [and any usable marijuana equivalent¹³] that is possessed but, additionally, to the amount of marijuana that is possessed,” even if that marijuana is not usable marijuana or a usable marijuana equivalent. People v Carruthers, 301 Mich App 590, 609-610 (2013). Accordingly, “the question of whether a possessor of marijuana possesses an allowed quantity of usable marijuana [or usable marijuana equivalent] is only the beginning of the relevant inquiry under § 4”; the second question “is whether that person possesses any quantity of marijuana that does not constitute usable marijuana [or a usable marijuana equivalent] under the term-of-art definition of the MMMA.” Id. at 610. A person is not eligible for § 4 immunity if they possess any marijuana that is not usable marijuana or a usable marijuana equivalent because “the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana [or a usable marijuana equivalent] under the applicable definitions.” Id. at 610-611 (holding that the defendant failed to meet the requirements for § 4 immunity because he possessed marijuana that did not constitute usable marijuana and thus “was in possession of an amount of marijuana that exceeded the amount of usable marijuana he was allowed to possess”).¹⁴

A qualifying patient may possess up to a combined total of 2.5 ounces of usable marijuana and usable marihuana equivalents or, if he or she cultivates his or her own marijuana and is not connected with a caregiver, up to 12 marijuana plants. Hartwick, 498 Mich App at 219; MCL 333.26424(a).

A primary caregiver who is connected with one or more qualifying patients may possess a combined total of 2.5 ounces of usable marijuana and usable marihuana equivalents, and 12 marijuana plants for each qualifying patient, including the caregiver if he or she is also a registered qualifying patient acting as his or her own caregiver. Hartwick, 498 Mich App at 219; MCL 333.26424(b).

“A qualifying patient or primary caregiver in possession of more marijuana than allowed under § 4(a) and § 4(b) at the time of the charged offense cannot satisfy the second element of immunity.” Hartwick, 498 Mich App at 219.

Collective growing prohibited. Section 4 “[does not] provide[] a registered primary caregiver with immunity when growing marijuana collectively with other registered primary caregivers and registered qualifying patients[;]” rather, “only one of two people may possess marijuana plants pursuant to §§ 4(a) and 4(b): a registered qualifying patient or the primary caregiver with whom the qualifying patient is connected through the registration process[.]” Bylsma II, 493 Mich at 21-22 (holding that because collective growing is not permitted, the defendant possessed more plants than § 4 allows and possessed plants on behalf of patients with whom he was not connected).

Marijuana in the process of drying. Usable marijuana is defined to include only “‘the dried leaves, flowers, plant resin, or extract of the marijuana plant[.]’” People v Manuel, 319 Mich App 291, 300 (2017), quoting MCL 333.26423(n). The term “dried” is not defined by the MMMA; however, the term “clearly indicates a completed condition” because it is “the past participle or past tense of the verb ‘dry.’” Manuel, 319 Mich App at 301-302 (quotation marks and citations omitted). Accordingly, marijuana that is in the process of “drying,” rather than already “dried” is “not usable under [MCL 333.26423(n)].” Manuel, 319 Mich App at 303 (holding that where there was evidence that the marijuana seized from the defendant “was in various stages of drying” at the time of the seizure, the trial court did not err in finding that the marijuana was not usable marijuana, and accordingly, finding that the defendant satisfied the volume limitations despite the fact that the drying marijuana exceeded the legally permitted amount of usable marijuana under §§ 4(a) and 4(b)).¹⁵

However, in People v Mansour, 325 Mich App 339, 343 (2018), the Court held that the defendant was not entitled to § 4 immunity where the defendant argued that under the Manuel decision, marijuana that was in the process of drying “must be excluded” from the total volume of marijuana possessed; the Court rejected the defendant’s argument and held that the decision in Carruthers — that a person cannot possess any quantity of marijuana that does not constitute usable marijuana — controlled. The Court explained that while “the MMMA was amended after Carruthers to add certain protections relative to the medical use of usable marijuana equivalents, the statutory language interpreted in Carruthers remains today as it was then in all pertinent respects,” and “Carruthers is therefore binding with respect to that statutory interpretation.” Mansour, 325 Mich App at 351 (holding that “[t]he trial court was correct to follow Carruthers and to deny defendant’s motion to dismiss under § 4,” and declining defendant’s invitation to follow Manuel, which did not complete the Carruthers analysis).

3.Element 3: Enclosed, Locked Facility

“The third element of § 4 immunity requires all marijuana plants possessed by a qualifying patient or primary caregiver to be kept in an enclosed, locked facility. Thus, a qualifying patient or primary caregiver whose marijuana plants are not kept in an enclosed, locked facility at the time of the charged offense cannot satisfy the third element and cannot receive immunity for the charged offense.” Hartwick, 498 Mich at 219.

Collective growing. Collective growing with other registered primary caregivers and/or registered qualifying patients is prohibited. Bylsma II, 493 Mich at 21-22. Where the defendant leased a warehouse space that was secured by a single lock and divided into three separate booths that were latched but not locked, the defendant failed to keep his marijuana in an enclosed, locked facility because in order to qualify as an “enclosed, locked facility” the facility “must be such that it allows only one person to possess the marijuana plants enclosed therein[].” Id. at 23, 35. Accordingly, the locked warehouse did not constitute an enclosed, locked facility because multiple patients and caregivers collectively grew their marijuana in unlocked booths inside the warehouse. Id. at 34-35.

Unlocked Padlocks. “[D]efendant kept his . . . marijuana plants in an enclosed, locked facility[]” as required by MCL 333.26424(a) and as defined by MCL 333.26423(d) where his “grow room was protected by two different doors with locks, the first of which also had two padlocks[; a]lthough the padlocks were not locked and there were keys in the door locks at the time of the search, [MCL 333.26423(d)] only requires that marijuana be kept in an ‘enclosed area equipped with secured locks[.]’” Manuel, 319 Mich App at 304.

Transport or Transportation of Marijuana. The defendant was not in violation of the requirement that marijuana plants be kept in an enclosed, locked facility where the police found “marijuana plants sitting on a freezer in defendant’s garage,” but “testimony showed that defendant received the plants just minutes before the search and that he was in the active process of relocating the plants to his grow room.” Manuel, 319 Mich App at 304. The “transfer” and “transportation” of marijuana is part of the MMMA’s definition of medical use of marijuana. Further, the MMMA “includes criteria to allow a motor vehicle to fall within the definition of an ‘enclosed, locked facility[;]’ accordingly, “the electorate clearly intended the MMMA to allow the movement of marijuana from one place to another. Id., quoting MCL 333.26423(h). “[A] window of time must exist in which a primary caregiver or qualifying patient could legally unlock an enclosed area in which marijuana is being stored and move the marijuana to another enclosed, locked facility.” Manuel, 319 Mich App at 304-305.

4.Element 4: Medical Use of Marihuana

“Unlike elements two and three, the fourth element does not depend on the defendant’s aggregate conduct. Instead, this element depends on whether the conduct forming the basis of each particular criminal charge involved ‘the acquisition, possession, cultivation, manufacture, [extraction,] use, internal possession, delivery, transfer, or transportation of marijuana[, marihuana-infused products,] or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.’” Hartwick, 498 Mich at 219-220, quoting MCL 333.26423(h).¹⁶

“Whether a qualifying patient or primary caregiver was engaged in the medical use of marijuana must be determined on a charge-by-charge basis.” Hartwick, 498 Mich at 220.

The defendant is entitled to a rebuttable presumption of medical use if he or she satisfies the first two elements, see discussion at Section 8.3(G) and Section 8.3(H).

Sale or Transfer of Marijuana.¹⁷ The definition of medical use of marihuana includes the sale of marijuana. Michigan v McQueen (McQueen II), 493 Mich 135, 141 (2013), affirming in part and reversing in part Michigan v McQueen (McQueen I), 293 Mich App 644 (2011).¹⁸ This definition is broad and includes the transfer of marijuana for the purposes stated in the statute. See McQueen II, 493 Mich at 141. “Because a transfer is ‘[a]ny mode of disposing or parting with an asset or an interest in an asset, including . . . the payment of money,’ the word ‘transfer,’ . . . also includes sales.” Id.

However, “the MMMA does not contemplate patient-to-patient sales of marijuana for medical use[.]” McQueen II, 493 Mich at 141.¹⁹ “Because the MMMA’s immunity provision clearly contemplates that a registered qualifying patient’s medical use of marijuana only occur for the purpose of alleviating his [or her] own debilitating medical condition or symptoms associated with his [or her] debilitating medical condition, and not another patient’s condition or symptoms, § 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient[;]” therefore, “a business that facilitates patient-to-patient sales of marijuana[]” is not entitled to § 4 immunity. McQueen II, 493 Mich at 141.

In McQueen II, 493 Mich at 142-143, the defendants²⁰ operated a dispensary whose members, registered qualifying patients and registered primary caregivers, paid a monthly membership fee in order to access the dispensary’s services; “[f]or an additional fee, a member [could] rent one or more lockers to store up to 2.5 ounces of marijuana and make that marijuana available to other . . . members to purchase.” The defendants or their employees weighed and packaged the marijuana for purchasing members and collected the purchase price, retaining a “service fee.” Id. at 143. The McQueen II Court reversed McQueen I to the extent that it defined “‘[m]edical use’” as excluding the sale of marijuana, holding that a sale is encompassed within the meaning of the word “‘transfer,’” which is one of the activities included within the definition of “‘[m]edical use’” of marijuana in § 3(h).²¹ McQueen II, 493 Mich at 141, 150. However, the McQueen II Court stated that “the Court of Appeals [nevertheless] reached the correct conclusion that defendants [were] not entitled to operate a business that facilitate[d] patient-to-patient sales of marijuana[]” because, “[w]hile the sale of marijuana constitutes ‘medical use[,]’ . . . § 4 . . . does not permit a registered qualifying patient to transfer marijuana for another registered qualifying patient’s medical use.”²² McQueen II, 493 Mich at 159-160.²³

Purchase of Marijuana Plants from a Third Party. The defendant’s purchase of marijuana plants from a third party, “with whom he was not connected for purposes of the MMMA,” did not establish that the defendant “was not engaged in the medical use of marijuana[]” as required under MCL 333.26424(a)-(b) and as defined by MCL 333.26423(h). Manuel, 319 Mich App at 306. Although “[t]he MMMA is silent as to how a qualifying patient or primary caregiver is to obtain marijuana plants for cultivation[,]” MCL 333.26424(b) “does not require a primary caregiver to obtain the marijuana to be used ‘for assisting a qualifying patient’ from the qualifying patient or another caregiver[,]” and MCL 333.26423(h) “define[s] the medical use of marijuana to include ‘the acquisition . . . of marihuana . . . .’” Manuel, 319 Mich App at 306 (ellipses in original). “Therefore, acquiring marijuana plants that do not exceed the statutory limits cannot rebut the presumption that defendant was engaged in the medical use of marijuana[]” in the absence of “evidence that defendant did not intend to use the marijuana he acquired from [the third party] ‘to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition’” within the meaning of MCL 333.26423(h). Manuel, 319 Mich App at 306-307.

G.Presumption of Medical Use of Marijuana

Both qualifying patients and primary caregivers are presumed to be engaging in the medical use of marijuana under the MMMA if certain conditions are met:

“There is a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with [the MMMA] if the qualifying patient or primary caregiver complies with both of the following:

(1) Is in possession of a registry identification card.

(2) Is in possession of an amount of marihuana that does not exceed the amount allowed under [the MMMA].”MCL 333.26424(e).

While the qualifying patient or primary caregiver retains the burden of proving the medical use of marijuana element of immunity, proof of the first and second elements required to establish immunity gives rise to the presumption of medical use of marijuana. Hartwick, 498 Mich at 220. “Therefore, a qualifying patient or primary caregiver is entitled to the presumption of medical use in § 4(d) simply by establishing the first two elements of § 4 immunity [(possession of a valid registry identification card and compliance with the volume limitations)].” Hartwick, 498 Mich at 220-221.²⁴

H.Rebutting the Presumption of Medical Use

“The presumption [that a qualifying patient or primary caregiver is engaged in the medical use of marijuana in accordance with the MMMA] may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with [the MMMA].” MCL 333.26424(e)(2).

“[T]he prosecution may rebut the presumption of medical use for each claim of immunity. Improper conduct related to one charged offense may not be imputed to another charged offense unless the prosecution can establish a nexus between the improper conduct and the otherwise MMMA-compliant conduct. The trial court must ultimately determine whether a defendant has established by a preponderance of the evidence that he or she was engaged in the medical use of marijuana.” Hartwick, 498 Mich at 226.²⁵

If the prosecution rebuts the presumption of medical use of marijuana, the defendant may still prove through other evidence that he or she was engaged in the medical use of marijuana in regard to the underlying conduct that resulted in the charged offense or offenses. Hartwick, 498 Mich at 226.

1.Courts May Only Consider the Defendant’s Conduct

“[O]nly the defendant’s conduct may be considered to rebut the presumption of the medical use of marijuana.” Hartwick, 498 Mich at 222. Accordingly, “the prosecution may not rebut a primary caregiver’s presumption of medical use by introducing evidence of conduct unrelated to the primary caregiver, such as evidence that a connected qualifying patient does not actually have a debilitating medical condition or evidence that a connected qualifying patient used marijuana for nonmedical purposes.” Id. “Similarly, the prosecution may not rebut a qualifying patient’s presumption of medical use by introducing evidence that the connected primary caregiver used the qualifying patient’s marijuana for nonmedical purposes.” Id.²⁶

Conduct “may be misfeasance as well as nonfeasance[]” and primary caregivers who have actual knowledge that the marijuana provided to a qualifying patient is being used in a manner not permitted under the MMMA may lose the presumption of medical use of marijuana on the basis of their actual knowledge of misuse. Hartwick, 498 Mich at 222 n 59.

The right to the medical use of marijuana is personal. See McQueen II, 493 Mich at 141, 155, 158, affirming in part and reversing in part McQueen I, 293 Mich App 644. “The text of § 4([e])^[27] establishes that the MMMA intends to allow ‘a qualifying patient or primary caregiver’ to be immune from arrest, prosecution, or penalty only if conduct related to marijuana is ‘for the purpose of alleviating the qualifying patient’s debilitating medical condition’ or its symptoms. Section 4 creates a personal right and protection for a registered qualifying patient’s medical use of marijuana, but that right is limited to medical use that has the purpose of alleviating the patient’s own debilitating medical condition or symptoms. If the medical use of marijuana is for some other purpose—even to alleviate the medical condition or symptoms of a different registered qualifying patient—then the presumption of immunity attendant to the ‘medical use’ of marijuana has been rebutted.” McQueen II, 493 Mich at 141, 155, 158 (holding that § 4 does not authorize a registered qualifying patient to transfer marijuana to another registered qualifying patient).

2.Multiple Transactions

One or more transactions that are outside the scope of the MMMA do not automatically rebut the presumption of medical use for otherwise-compliant conduct. Hartwick, 498 Mich at 226. In order for evidence of non-compliant transactions “to rebut the presumption of medical use the prosecution’s rebuttal evidence must be relevant, such that the illicit conduct would allow the fact-finder to conclude that the otherwise MMMA-compliant conduct was not for the medical use of marijuana. In other words, the illicit conduct and the otherwise MMMA-compliant conduct must have a nexus to one another in order to rebut the § 4([e])^[28] presumption.” Hartwick, 498 Mich at 225.²⁹

For example, in People v Tuttle, 304 Mich App 72 (2014), aff’d in part, rev’d in part by Hartwick, 498 Mich at 245,³⁰ the defendant was charged with seven marijuana-related counts. Counts I-III related to transfers of marijuana to an unconnected patient, thus, those transfers were outside the parameters of the MMMA; however, counts IV-VII related to the manufacture of marijuana in the defendant’s home. Tuttle, 304 Mich App at 77-78. The Court of Appeals held that the noncompliant marijuana transactions negated the defendant’s ability to claim § 4 immunity in regard to any of the defendant’s marijuana-related conduct. Tuttle, 304 Mich App at 82-83. The Supreme Court disagreed, holding that “[o]nly relevant evidence that allows the fact-finder to conclude that the underlying conduct was not for ‘medical use’ may rebut the § 4([e])^[31] presumption. A wholly unrelated transaction—i.e., a transaction with no nexus, and therefore no relevance, to the conduct resulting in the charged offense—does not assist the fact-finder in determining whether the defendant actually was engaged in the medical use of marijuana during the charged offense. Conduct unrelated to the charged offense is irrelevant and does not rebut the presumption of medical use.” Hartwick, 498 Mich at 225-226.³²

I.Physicians

Physicians are provided immunity as set out in MCL 333.26424(g):

“A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient’s medical history, or for otherwise stating that, in the physician’s professional opinion, a 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 or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions.”

1.Failure to Comply with the Requirements of § 4(f)

MCL 333.26424(g)³³ “does not define prohibited conduct and . . . does not authorize punishment for noncompliance.” People v Butler-Jackson, 307 Mich App 667, 679 (2014), vacated in part on other grounds 499 Mich 965 (2016).³⁴ Rather than being subject to prosecution, “a physician who fails to comply with [§ 4(g)] is not immune from ‘arrest, prosecution, or penalty in any manner.’” Butler-Jackson, 307 Mich App at 679 (holding that “[§ 4(g)] does not prohibit physicians from issuing written certifications in the absence of a bona fide physician-patient relationship, without conducting a full assessment of medical history, and when a ‘professional opinion’ cannot be formulated”), quoting MCL 333.26424(g).³⁵ Accordingly, where a physician and another “were in the business of providing, for a price, physician certifications required to obtain [MMMA] registry identification cards,” the physician was improperly charged with conspiracy to commit a legal act in an illegal manner, MCL 750.157a, because failure to comply with § 4(g) is not illegal. Butler-Jackson, 307 Mich App at 669, 677.

2.Physician-Patient Relationship

A physician is not entitled to immunity under § 4(g)³⁶ where there is “no evidence of any type of ‘physician-patient relationship.’” Butler-Jackson, 307 Mich App 667, 674 (2014), vacated in part on other grounds 499 Mich 965 (2016).³⁷

J.Providing Marijuana Paraphernalia

Individuals who provide qualifying patients or registered primary caregivers with marijuana paraphernalia are provided immunity as set out in MCL 333.26424(h):

“A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient’s medical use of marihuana.”

Marihuana paraphernalia is not defined by the MMMA, and the Michigan Supreme Court specifically held that the definition of drug paraphernalia, defined by the PHC at MCL 333.7451, has no bearing on the meaning of marihuana paraphernalia as used by the MMMA. People v Mazur, 497 Mich 302, 312-313 (2015). Instead, the Court turned to “other conventional means of statutory interpretation[,]” and concluded that “‘marihuana paraphernalia’ applies both to those items that are specifically designed for the medical use of marijuana as well as those items that are actually employed for the medical use of marijuana.” Id. at 315. Accordingly, the defendant’s provision of sticky notes to her husband, who was both a qualifying patient and a registered caregiver, “for the purpose of detailing the harvest dates of his marijuana plants[]” constituted the provision of marijuana paraphernalia under § 4(h)³⁸ “because the [sticky notes] were actually used in the cultivation or manufacture of marijuana.” Mazur, 497 Mich at 318. Because the provision of sticky notes fell within the scope of § 4(h), “the prosecution [was] prohibited from introducing or otherwise relying on the evidence relating to defendant’s provision of marihuana paraphernalia—i.e., the sticky notes—as a basis for the criminal charges against defendant.” Mazur, 497 Mich at 318 (noting that if, on remand, the sticky notes are the only basis for criminal charges, a successful showing under § 4(h) will result in dismissal of charges; but if there is additional evidence supporting criminal charges nothing in § 4(h) prohibits the prosecution from proceeding on the basis of the remaining evidence).

K.Being in the Presence or Vicinity of the Medical Use of Marijuana or Assisting in its Use or Administration

Individuals who are in the presence or vicinity of medical marijuana use or who assist in its use or administration are provided immunity as set out in MCL 333.26424(j):

“A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with [the MMMA], or for assisting a registered qualifying patient with using or administering marihuana.”

MCL 333.26424(j) “offers two distinct types of immunity[.] . . . A person may claim immunity either: (1) ‘for being in the presence or vicinity of the medical use of marihuana in accordance with [the MMMA],’ or (2) ‘for assisting a registered qualifying patient with using or administering marihuana.’” Mazur, 497 Mich at 310, quotingMCL 333.26424(j).³⁹ See also McQueen II, 493 Mich at 158 (noting thatMCL 333.26424(j) protects only “two of the . . . activities that encompass medical use[ of marihuana]: ‘using’ and ‘administering’ marijuana”).⁴⁰

The defendant was not entitled to “presence or vicinity” immunity under § 4(j) where she was in the presence and vicinity of her husband’s medical use of marijuana, but his “marijuana operation was not in accordance with the MMMA.” Mazur, 497 Mich at 310-311.

Immunity under § 4(j) for assisting in use and administration of marijuana is “limited to conduct involving the actual ingestion of marijuana[; t]hus, by its plain language, § 4(j) permits, for example, the spouse of a registered qualifying patient to assist the patient in ingesting marijuana, regardless of the spouse’s status.” McQueen II, 493 Mich at 158. However, § 4(j) “does not apply . . . to any patient-to-patient transfers of marijuana[]” because “[t]he transfer, delivery, and acquisition of marijuana are three activities that are part of the medical use of marijuana that the drafters of the MMMA chose not to include as protected activities within § 4(j).” McQueen II, 493 Mich at 157-158 (holding that the defendants, who, through the operation of their medical marijuana dispensary, “actively facilitat[ed] patient-to-patient sales for pecuniary gain[,]” were not entitled to immunity under § 4(j)) (quotation marks omitted).⁴¹

The defendant was not entitled to “assisting in the use or administration” immunity under § 4(j) where she was assisting the defendant in the cultivation of marijuana because “assisting in the cultivation of marijuana does not constitute assistance with ‘using’ or ‘administering’ marijuana[.]” Mazur, 497 Mich at 312.