Medical Marijuana Caregiver Must Show that Patients had Bona Fide Physician Relationship

People v Blesch

Issues:

The § 8 defense of the Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); People v. Hartwick; The physician-patient relationship; § 8(a)(1); The quantity of marijuana; § 8(a)(2); “Usable marihuana” defined; MCL 333.26424; “Marihuana” defined; MCL 333.7106(4); MCL 333.26423(e); The “medical use” requirement; § 8(a)(3); MCL 333.26423(f); Whether the defendant’s own testimony as to any purported statements of his patients that they engaged only in “medical use” of marijuana could constitute sufficient prima facie evidence to the degree it is admissible; MRE 803(4) & 804(a)(2)

Noting that the trial court’s ruling that the defendant presented prima facie evidence as to the MMMA’s § 8 defense was issued prior to Hartwick, the court vacated the order and remanded for an evidentiary hearing for consideration as to whether, under Hartwick, sufficient evidence was in fact presented.

He was charged with multiple offenses, including manufacturing 20 to 200 marijuana plants, possession of marijuana with intent to deliver, and maintaining a drug house. He moved to dismiss his marijuana-related charges under § 8 of the MMMA. The trial court found he presented prima facie evidence as to each of the three requisite elements of his § 8 affirmative defense, but held there was a material question of fact for the jury as to the second element, § 8(a)(2). Thus, it denied his motion to dismiss, but allowed him to present the defense to the jury. On appeal, the court agreed with the prosecution that the trial court erred in ruling that defendant presented the prima facie evidence necessary to assert a § 8 affirmative defense at trial. It found that although he presented prima facie evidence of a sufficient physician-patient relationship, “insufficient evidence exists . . . to determine whether, underHartwick and the MMMA as it existed at the time,” defendant’s own patients “possessed bona fide physician-patient relationships with” the doctor who signed each of their physician certifications. The court next found that defendant presented prima facie evidence sufficient to satisfy element § 8(a)(2) as to both himself and his patients. Finally, it found that defendant presented sufficient prima facie evidence as to whether his own use of marijuana was for a proper medical purpose, but that “there was little to no testimony regarding the specific uses of medical marijuana by [his] patients, other than in amount and the certified affliction.”

"With regard to his other patients, defendant did present physician certifications for their use of medical marijuana. However, the Supreme Court held that such certifications, at the time of the instant charged crimes, are not sufficient in themselves to satisfy the second element. Id. For the same reasons discussed with regard to a bona fide physician-patient relationship, remand is necessary to take evidence and consider this question with regard to defendant’s patients."