8.5Affirmative Defense Under § 8

“Section 8 [(MCL 333.26428)] of the MMMA provides a limited protection for the use of medical marijuana in criminal prosecutions, which requires dismissal of the charges if all the elements of the defense are established.” People v Kolanek (Kolanek II), 491 Mich 382, 415 (2012). “Registered patients who do not qualify for immunity under § 4, as well as unregistered persons, are entitled to assert in a criminal prosecution the affirmative defense of medical use of marijuana under § 8 of the MMMA, MCL 333.26428.” Kolanek II, 491 Mich at 415; see also People v Bylsma (Bylsma II), 493 Mich 17, 35-36 (2012). “[A]n individual who qualifies as a patient or a primary caregiver may assert a § 8 defense regardless of his or her registration status and the registration status of the patient or primary caregiver, if any, with which he or she is affiliated.” People v Bylsma (On Remand), 315 Mich App 363, 379-380 (2016). The affirmative defense under § 8 “is only applicable to criminal prosecutions.” Varela v Spanski, 329 Mich App 58, 73, 74 (2019) (finding the trial court erred by relying on § 8 in granting a motion for summary disposition).

A.Statutory Authority

“Except as provided in [MCL 333.26427(b)¹], a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution^[2] involving 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 marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition;

(2) The patient and the patient’s 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 of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition; and

(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition.” MCL 333.26428(a).

B.Procedural Requirements

“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 shows the elements listed in [MCL 333.26428(a)].” MCL 333.26428(b).

1.Defense Must Be Asserted Before Trial

“[T]he § 8 defense cannot be asserted for the first time at trial”; rather, it must be raised “in a pretrial motion to dismiss and for an evidentiary hearing.” Kolanek II, 491 Mich at 411, 415. See also Bylsma II, 493 Mich at 36-37 (holding that, although the defendant could not prevail on his claim of immunity under § 4, he was entitled, on remand, “to assert [a defense under § 8] in a motion to dismiss” because he had reserved the right to raise such a defense and because his case had not yet proceeded to trial); People v Anderson (On Remand), 298 Mich App 10, 19-20 (2012) (vacating the trial court’s order denying the defendant’s motion to dismiss under § 8 and remanding for a new evidentiary hearing consistent with Kolanek II, 491 Mich 382).

2.Unconditional Guilty Plea Waives § 8 Defense

Section 8 “is an affirmative defense to charges that the prosecution has the right to bring against a defendant,” and “defendants raising a Section 8 defense must ultimately be able to prove their factual entitlement to that defense at trial.” People v Cook, 323 Mich App 435, 450, 451 (2018). “Thus, a Section 8 defense does not implicate the right of a prosecutor to bring a defendant to trial in the first instance, as the defense specifically contemplates the matter potentially proceeding to a trial, where the defense will be weighed by the jury.” Cook, 323 Mich App at 451. Accordingly, an unconditional guilty plea waives the § 8 defense because guilty pleas waive “‘all the rights and challenges associated with [a] trial.’” Cook, 323 Mich App at 451, citing People v New, 427 Mich 482, 492 (1986). Therefore, a defendant cannot appeal a trial court’s denial of a motion to dismiss and a motion for an evidentiary hearing under § 8 after tendering an unconditional guilty plea. Cook, 323 Mich App at 451.

3.Burden of Proof

A defendant raising the § 8 affirmative defense bears the burden of proof and must prove the affirmative defense by a preponderance of the evidence. Hartwick, 498 Mich at 228 n 69.

4.Possible Outcomes Following Evidentiary Hearing

The trial court must deny the defendant’s motion to dismiss if the defendant fails to present evidence from which a reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense. Hartwick, 498 Mich at 227; Kolanek II, 491 Mich at 416. The defendant is not permitted to present the § 8 defense to the jury when his or her motion to dismiss under § 8 is denied. Hartwick, 498 Mich at 227. The defendant may apply for interlocutory leave to appeal. Kolanek II, 491 Mich at 416. See also MCR 6.126 (addressing interlocutory applications for leave to appeal decisions on admissibility of evidence).

However, “[i]f a defendant moves for dismissal of criminal charges under § 8 and at the evidentiary hearing establishes prima facie evidence of all the elements of the § 8 affirmative defense, but material questions of fact exist, then dismissal of the charges is not appropriate and the defense must be submitted to the jury.” Kolanek II, 491 Mich at 416.

The defendant is entitled to dismissal where he or she proves the elements of § 8 by a preponderance of the evidence and no questions of fact exist. MCL 333.26428(b).

C.Requirement that Defendant Qualify as a Patient or Primary Caregiver

“[A] defendant who possessed, cultivated, manufactured, sold, transferred or delivered marijuana to someone with whom he or she was not formally connected through the MMMA registration process may be entitled to raise an affirmative defense under § 8. “People v Bylsma (On Remand), 315 Mich App 363, 380 (2016). However, “in order for such a defendant to be entitled to raise a defense under § 8, he or she must qualify as a ‘patient’ or ‘primary caregiver’ as those terms are defined and limited under the MMMA.” Bylsma (On Remand), 315 Mich App at 380 (citation omitted). Accordingly, “a defendant may not raise a § 8 defense in a prosecution for patient-to-patient transactions involving marijuana, caregiver-to-caregiver transactions involving marijuana, transactions that do not involve a patient for whom the defendant serves as a primary caregiver, and transactions involving marijuana that do not involve the defendant’s own primary caregiver, as “patient” and “primary caregiver” are defined and expressly limited under the [MMMA]. Only conduct directly arising from the traditional patient and primary-caregiver relationship is subject to an affirmative defense under § 8.” Bylsma (On Remand), 315 Mich App at 384.

“The plain language of the MMMA indicates that a patient can only have one ‘primary caregiver,’ and an individual may only serve as a ‘primary caregiver’ for no more than five patients.” Bylsma (On Remand), 315 Mich App at 386 (citation omitted). “Thus, even though the plain language of § 8 does not specifically require a ‘primary caregiver’ to be connected to a ‘patient’ through the registration process under the MMMA, the defense available under § 8 is limited by other provisions in the act, which restrict the number of primary caregivers that a patient can have and restrict the number of patients that a primary caregiver can serve.” Bylsma (On Remand), 315 Mich App at 386 (citations omitted). Accordingly, “to be eligible to raise a defense under § 8 in a prosecution for marijuana-related conduct, . . . an individual must either be a ‘patient’ himself [or herself] or the ‘primary caregiver’ of no more than five qualifying patients, as those terms are defined and understood under the MMMA.” Bylsma (On Remand), 315 Mich App at 382, 387 (holding, in two consolidated cases, that the trial courts properly denied the defendants’ motions to dismiss and held that they could not raise § 8 as an affirmative defense, because “no reasonable juror could have concluded that [either defendant was] entitled to an affirmative defense under § 8, as the undisputed facts of each case demonstrate[d] that neither of them served as a ‘primary caregiver’ or ‘patient,’ as those terms are defined and limited under the MMMA and used in § 8, when they operated the cooperative growing operation and medical marijuana dispensary that resulted in the charges brought against them”) (citation omitted).

D.Elements of a § 8 Defense³

“A defendant is entitled to the dismissal of criminal charges under § 8 if, at the evidentiary hearing, the defendant establishes all the elements of the § 8 affirmative defense, which are[:] (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 marijuana[;]’ (2) the defendant did not possess an amount of marijuana that was more than ‘reasonably necessary for this purpose[;]’ and (3) the defendant’s use was ‘to treat or alleviate the patient’s serious or debilitating medical condition or symptoms . . . .’” Kolanek II, 491 Mich at 415-416, quoting MCL 333.26428(a). “As long as a defendant can establish these elements, no question of fact exists regarding these elements, and none of the circumstances in § 7(b), MCL 333.26427(b), exists,^[4] then the defendant is entitled to dismissal of the criminal charges.” Kolanek II, 491 Mich at 416.

To facilitate appellate review, the trial court must make findings on the elements. See generally People v Bryan, 504 Mich 978, 978 (2019) (remanding to the trial court to make findings on the second element because failure to do so resulted in a premature conclusion by the Court of Appeals on that element).

1.Element 1: Physician’s Statement

“Section 8(a)(1) requires a physician to determine the patient’s suitability for the medical use of marijuana.” Hartwick, 498 Mich at 228. This first element may be reduced to three sub-elements:

“(1) The existence of a bona fide physician-patient relationship,

(2) in which the physician completes a full assessment of the patient’s medical history and current medical condition, and

(3) from which results the physician’s professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition.” Hartwick, 498 Mich at 229.

“Each of these elements must be proved in order to establish the imprimatur of the physician-patient relationship required under § 8(a)(1) of the MMMA.” Hartwick, 498 Mich at 229. Mere possession of a valid registry identification card does not establish all three elements. Id.

a.Bona Fide Physician-Patient Relationship

To satisfy this element, “there must be proof of an actual and ongoing physician-patient relationship at the time the written certification was issued.” Hartwick, 498 Mich at 231.

“[A] defendant may present patient testimony or other evidence to satisfy his or her burden of presenting prima facie evidence of the elements of § 8(a). A defendant who submits proper evidence would not likely need his or her physician to testify to establish prima facie evidence of any element of § 8(a).” Hartwick, 498 Mich at 231-232, n 77.

A registry identification card on its own is not sufficient to prove the existence of a bona fide physician-patient relationship. Hartwick, 498 Mich at 230. However, the text of the written certification submitted in order to obtain a registry identification card might suffice to satisfy this element if a statement indicating that the written certification was prepared in the course of a bona fide physician-patient relationship is included in the certification. Id. at 231-232, n 77.

Statutory definition. Effective April 1, 2013, “‘[b]ona fide physician-patient relationship’” is defined in MCL 333.26423(a). However, this definition “is . . . not applicable to cases . . . that arose before that date.” People v Tuttle, 304 Mich App 72, 89 (2014), aff’d in part and rev’d in part Hartwick, 498 Mich at 246.

Primary caregivers. “A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marijuana.” Hartwick, 498 Mich at 232. Thus, a primary caregiver assumes the risk that his or her patients do not actually meet the elements of § 8(a)(1) or that his or her patients refuse to cooperate in a prosecution of the primary caregiver. Hartwick, 498 Mich at 232.

Timing of physician statement. A defendant “must have obtained the physician’s statement [required by § 8(a)(1)] after enactment of the MMMA, but before the commission of the offense.” Kolanek II, 491 Mich at 416. The defendant failed to satisfy the physician statement requirement where the physician’s statements that the defendant would receive a therapeutic benefit from using marijuana were made prior to the enactment of the MMMA and six days after the defendant’s arrest for marijuana possession. Id. at 404-410. With respect to the pre-MMMA statement, the Court held that “[b]ecause the MMMA does not apply retroactively, . . . physician[s’] statements made before its enactment cannot satisfy § 8(a)(1).” Kolanek II, 491 Mich at 406. Turning to the postoffense statement, the Court concluded that “[w]hen subdivisions (1) through (3) [of § 8(a)] are read together, it becomes clear that the physician’s statement must necessarily have occurred before the commission of the offense if it is to be used as the basis for a § 8 defense.” Kolanek II, 491 Mich at 406. The Court explained:

“[T]he [present-perfect-tense] term ‘has stated’ [in § 8(a)(1)] indicates that the physician’s statement must have been made sometime before a defendant filed the motion to dismiss under § 8 but not necessarily before commission of the offense.

Other language of § 8(a)(1), however, . . . contemplates that a patient will not start using marijuana for medical purposes until after the physician has provided a statement of approval. It necessarily follows that any marijuana use before the physician’s statement was not for medical purposes.

The language of § 8(a)(2) and [§ 8(a)](3) supports this conclusion[;] . . . [b]oth provisions presuppose a physician’s prior diagnosis of a serious or debilitating medical condition or symptoms before a patient may treat the condition with marijuana. Consequently, reading these provisions together, it is clear that the physician’s statement under § 8(a)(1) must have been made before a patient began using marijuana for medical purposes.” Kolanek II, 491 Mich at 407-408.

b.Full Assessment by a Physician

In cases arising before April 1, 2013, possession of a registry identification card is not sufficient to establish this element. Hartwick, 498 Mich at 230. In those cases, this element “must be established through medical records or other evidence submitted to show that the physician actually completed a full assessment of the patient’s medical history and current medical condition before concluding that the patient is likely to benefit from the medical use of marijuana and before the patient engages in the medical use of marijuana.” Hartwick, 498 Mich at 230-231.

However, possession of a valid registry identification card issued on or after April 1, 2013, is sufficient to satisfy this element. Registry identification cards issued on or after April 1, 2013 satisfy this element because the MMMA was amended in 2012 to require the written certification⁵ necessary for obtaining a registry identification card to include an additional requirement that a physician conducted a full, in-person assessment of the patient. Hartwick, 498 Mich at 229, 230 n 72, n 74; 2012 PA 512, effective April 1, 2013. A registry identification card may be relied on because MCL 333.26426(c) provides that the Cannabis Regulatory Agency⁶ “shall verify the information contained in an application [for a registry identification card]” and “may deny an application . . . only if the applicant did not provide the information required pursuant to this section, or if the marijuana regulatory agency^[7] determines that the information provided was falsified.” See also Hartwick, 498 Mich at 229, n 72.

Note that possession of a registry identification card is not required under § 8; and a defendant without a registry identification card may prove this element by offering other evidence of a full assessment by a physician. See MCL 333.26428.

c.Debilitating Medical Condition

Possession of a valid registry identification card is sufficient to prove that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana. Hartwick, 498 Mich at 230.

2.Element 2: Reasonably Necessary Amount of Marijuana

There is no specific quantity of marijuana that is reasonable in all circumstances; rather, the reasonableness of the amount of marijuana possessed must be evaluated on a case-by-case basis. See Hartwick, 498 Mich at 233-235 (rejecting the notion that the specific quantity limits in § 4 apply to § 8 and evaluating reasonableness on a case-by-case basis); People v Carruthers, 301 Mich App 590, 616 (2013) (holding that the availability of § 8 defense is not conditioned on possession of a limited quantity of usable marijuana,⁸ and that the defense may be available without regard to the quantity of marijuana possessed).

a.Possession of Registry Identification Card Does Not Prove Reasonableness

“The issuance of a registry identification card . . . does not show that an individual possesses only a ‘reasonably necessary’ amount of marijuana ‘to ensure uninterrupted availability’ for the purposes of § 8(a)(2).” Hartwick, 498 Mich at 233. “A registry identification card simply qualifies a patient for the medical use of marijuana. It does not guarantee that an individual will always possess only the amount of marijuana allowed under the MMMA.” Id. at 233-234.

b.Compliance With The Volume Limitations of § 4 Does Not Establish Reasonableness Under § 8

“[C]ompliance with the volume limitations in § 4 does not show that an individual possesses only a ‘reasonably necessary’ amount of marijuana ‘to ensure uninterrupted availability’ for the purposes of § 8(a)(2).” Hartwick, 498 Mich at 233. “[N]othing in the MMMA supports the notion that the quantity limits found in the immunity provision of § 4 should be judicially imposed on the affirmative defense provision of § 8. Sections 4 and 8 feature contrasting statutory language intended to serve two very different purposes. Section 4 creates a specific volume limitation applicable to those seeking immunity. In contrast, § 8 leaves open the volume limitation to that which is ‘reasonably necessary.’ The MMMA could have specified a specific volume limitation in § 8, but it did not. In the absence of such an express limitation, we will not judicially assign to § 8 the volume limitation in § 4 to create a presumption of compliance with § 8(a)(2).” Hartwick, 498 Mich at 234 (footnote omitted).

c.Patients

“A patient seeking to assert a § 8 affirmative defense may have to testify about whether a specific amount of marijuana alleviated the debilitating medical condition and if not, what adjustments were made to the consumption rate and the amount of marijuana consumed to determine an appropriate quantity. Once the patient establishes the amount of usable marijuana^[9] needed to treat the patient’s debilitating medical condition, determining whether the patient possessed ‘a quantity of marihuana that was not more than was reasonably necessary to ensure [its] uninterrupted availability’ also depends on how the patient obtains marijuana and the reliability of this source. This would necessitate some examination of the patient/caregiver relationship.” Hartwick, 498 Mich at 234-235.

d.Primary Caregivers

“Primary caregivers must establish the amount of usable marijuana^[10] needed to treat their patients’ debilitating medical conditions and then how many marijuana plants the primary caregiver needs to grow in order ensure “uninterrupted availability” for the caregiver’s patients. This likely would include testimony regarding how much usable marijuana each patient required and how many marijuana plants and how much usable marijuana the primary caregiver needed in order to ensure each patient the “uninterrupted availability” of marijuana.” Hartwick, 498 Mich at 235.

3.Element 3: Use of Marijuana for Medical Purpose

“Section 8(a)(3) requires that both the patient’s and the primary caregiver’s use of marijuana be for a medical purpose, and that their conduct be described by the language in § 8(a)(3).” Hartwick, 498 Mich at 237. Possession of a registry identification card is not sufficient to establish this element. Id. “[P]atients must present prima facie evidence regarding their use of marijuana for a medical purpose regardless [of] whether they possess a registry identification card. Primary caregivers . . . also have to present prima facie evidence of their own use of marijuana for a medical purpose and any patients’ use of marijuana for a medical purpose.” Id.

“[S]ufficient prima facie evidence to create a question of fact as to the third element” was presented where “the prosecution [did] not dispute that the defendant grew and smoked marijuana to treat his debilitating medical condition, among other reasons.” People v Bryan, 504 Mich 978, 978 (2019).

E.Questions of Fact for Jury Determination

If there are questions of fact regarding the elements of the § 8 defense, “dismissal of the charges is not appropriate and the defense must be submitted to the jury.” People v Hartwick, 498 Mich 192, 227 (2015) (quotation marks and citation omitted). Where a question of fact remains for jury determination, the court should instruct the jury using M Crim JI 12.9 (Medical Marijuana Affirmative Defense).

F.Other Protections Afforded by § 8

“If a patient or a patient’s primary caregiver demonstrates the patient’s medical purpose for using marihuana pursuant to [MCL 333.26428], the patient and the patient’s primary caregiver shall not be subject to the following for the patient’s medical use of marihuana:

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

(2) forfeiture of any interest in or right to property.” MCL 333.26428(c).