Michigan Supreme Court Clarifies Medical Marihuana Law, Defenses

On July 27, 2015, the Michigan Supreme Court issued a single opinion involving two separate but related cases involving the proper application of defenses to prosecution under the Michigan Medical Marihuana Act (MMMA).

In People v Hartwick, Docket No. 148444, and People v Tuttle, Docket No. 148971, the Michigan Supreme Court addressed two related cases involving whether defendants were entitled to invoke immunity from prosecution and an affirmative defense to prosecution under the MMMA. In its opinion, the Court developed the law surrounding when a medical marihuana patient or caregiver may invoke the protections found in Sections 4 and 8 of the MMMA.

From the opinion's syllabus:

Richard Lee Hartwick was charged in the Oakland Circuit Court with manufacturing marijuana and possessing it with the intent to deliver it. Hartwick was a registered qualifying patient under the Michigan Medical Marihuana Act (MMMA). He served as his own primary caregiver and the primary caregiver for five other registered qualifying patients to whom he was properly connected under the MMMA. The police, acting on a tip, confronted Hartwick and later conducted a consent search of his home where the police discovered a disputed number of marijuana plants and approximately 3.69 ounces of marijuana. Hartwick moved to dismiss the charges, claiming immunity under § 4 of the MMMA, MCL 333.26424, and the affirmative defense under § 8 of the MMMA, MCL 333.26428. In the alternative, Hartwick sought permission to present a § 8 defense at trial. The trial court, Colleen A. O’Brien, J., denied the motions. The Court of Appeals denied Hartwick’s delayed application for leave to appeal. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration as on leave granted. 493 Mich 950 (2013). The Court of Appeals, SAAD, P.J., and SAWYER, J. (JANSEN, J., concurring), affirmed the trial court. 303 Mich App 247 (2013). The Supreme Court granted leave to appeal in Docket No. 148444. 496 Mich 851 (2014).

Robert Tuttle was charged in the Oakland Circuit Court with three counts of delivering marijuana, one count of manufacturing marijuana, one count of possessing marijuana with the intent to deliver it, and two counts of possession of a firearm during the commission of a felony. Tuttle was a registered qualifying patient under the MMMA who served as his own primary caregiver. It was unclear whether he was properly connected as the primary caregiver to one or two other registered qualifying patients. Tuttle was arrested for selling marijuana on three occasions to an individual with whom Tuttle was not properly connected under the MMMA. Tuttle claimed immunity under § 4 and the affirmative defense under § 8 of the MMMA. The trial court, Michael D. Warren, Jr., J., rejected both claims and denied Tuttle’s request to present a § 8 defense at trial. According to the court, immunity was not appropriate because Tuttle’s illegal conduct—selling marijuana to an individual outside the protection of the MMMA— tainted Tuttle’s conduct with regard to the other charges. The trial court denied Tuttle use of the affirmative defense in § 8 because Tuttle failed to present prima facie evidence of each element of the defense. The Court of Appeals denied Tuttle’s application for leave to appeal. In lieu of granting Tuttle’s application for leave to appeal, the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. 493 Mich 950 (2013). The Court of Appeals, SAAD, P.J., and SAWYER, J. (JANSEN, J., concurring), affirmed the trial court. 304 Mich App 72 (2014). The Supreme Court granted leave to appeal in Docket No. 148971. 496 Mich 851.

In a unanimous opinion by Justice ZAHRA, the Supreme Court held:

The availability of immunity under § 4 of the MMMA is a question of law to be decided before trial, and a defendant has the burden of proving by a preponderance of the evidence his or her entitlement to immunity. Immunity must be claimed for each charged offense, and the burden of proving immunity is separate and distinct for each offense. Conduct that is noncompliant with the MMMA with respect to one charged offense does not automatically rebut the presumption of medical use with respect to conduct relating to any other charged offenses. Rather, noncompliant conduct involved in one charged offense can negate otherwise compliant conduct involved in a separate charged offense if there is a nexus between the noncompliant and the otherwise compliant conduct. Raising an affirmative defense under § 8 of the MMMA requires a caregiver to present prima facie evidence of each element of the defense for him- or herself and for each registered qualifying patient to which the caregiver is connected. Having established a prima facie case, the defendant has the burden of proving each element by a preponderance of the evidence. A valid registry identification card does not create any presumption for purposes of § 8.

1. The lower courts erred by denying Hartwick § 4 immunity without properly making the factual determinations required by § 4. The Court of Appeals failed to recognize that the trial court did not make proper factual determinations on the elements of § 4, specifically, the number of plants Hartwick possessed. In addition, the trial court and the Court of Appeals erred by concluding that Hartwick should have known his registered qualifying patients’ debilitating conditions, the amount of marijuana they needed, and the identities of their physicians. Section 4 does not require that knowledge. To establish immunity under § 4 of the MMMA, the defendant must prove four elements by a preponderance of the evidence: (1) the defendant possessed a valid registry identification card; (2) the defendant complied with the requisite volume limitations in § 4(a) and § 4(b); (3) the defendant kept any marijuana plants in an enclosed, locked facility; and (4) the defendant was engaged in the medical use of marijuana. Under the MMMA, a defendant is presumed to be engaged in the medical use of marijuana if the defendant possesses a valid registry identification card and is not in violation of the volume limitations. The presumption is rebuttable by evidence that a defendant’s conduct was not for the purpose of alleviating a qualifying patient’s debilitating medical condition or its symptoms. If a presumption of medical use has been rebutted, the defendant may still prove by a preponderance of the evidence that the defendant’s conduct was in furtherance of the administration of marijuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition under MCL 333.26423(f). The written certification necessary to obtain a registry identification card is not similar to a pharmaceutical prescription and satisfies none of the elements of a § 8 defense. People v Hartwick had to be remanded to the trial court for an evidentiary hearing to determine the number of plants in Hartwick’s possession and whether Hartwick was entitled to § 4 immunity.

2. The Court of Appeals properly held that Hartwick was not entitled to raise the affirmative defense under § 8 because he failed to present prima facie evidence of each element of the defense. A primary caregiver must provide prima facie evidence of all § 8(a) elements for him- or herself and for the registered qualifying patients to which he or she is connected under the MMMA. Specifically, Hartwick failed to provide evidence of a bona fide physician-patient relationship for himself, as a patient, and his connected patients, he failed to provide evidence that a physician conducted a full assessment of his and his patients’ medical histories and current medical conditions, and he failed to show that a physician determined that he and his patients had debilitating medical conditions that would likely benefit from the medical use of marijuana. Hartwick further failed to present prima facie evidence that the amount of marijuana he possessed was not more than was reasonably necessary to ensure its uninterrupted availability for the treatment of his and his patients’ debilitating medical conditions. Finally, Hartwick failed to present prima facie evidence that he and his patients were engaged in the use of marijuana for a medical purpose.

3. The Court of Appeals erred by concluding that Tuttle’s unprotected conduct with the unconnected individual tainted what might otherwise be protected conduct on which additional separate charges were based. A defendant must raise the claim of § 4 immunity to each charged offense, the trial court must decide as a matter of law before trial whether to grant the defendant’s motion for immunity, and the defendant must prove immunity by a preponderance of the evidence each time immunity is raised. The defendant’s burden of proving entitlement to immunity is separate and distinct for each charged offense. MMMA-compliant conduct is not automatically tainted by the defendant’s improper conduct related to a different charged offense unless there is a nexus between the improper conduct and the otherwise proper conduct. People v Tuttle had to be remanded to the trial court for an evidentiary hearing to determine whether there was a nexus between the charges based on Tuttle’s improper conduct and the charges based on Tuttle’s otherwise proper conduct, in addition to other factual findings.

4. The Court of Appeals properly held that Tuttle could not claim the affirmative defense under § 8 because he failed to establish prima facie evidence of at least one of the elements of the defense for each of his possibly connected patients. Specifically, Tuttle failed to provide evidence of the actual amount of marijuana needed to treat his patients; the evidence showed only the actual amount of marijuana each patient obtained from Tuttle. In addition, Tuttle failed to show that one patient had undergone a full medical assessment in the course of a bona fide physician-patient relationship.

Hartwick affirmed in part, reversed in part, and remanded to the trial court for an evidentiary hearing to determine Hartwick’s entitlement to § 4 immunity.

Tuttle affirmed in part, reversed in part, and remanded to the trial court for an evidentiary hearing to determine Tuttle’s entitlement to § 4 immunity.