tomcatjones
Active Member
this was my thought. i love it.
Section 8 protection
- Thread starter GregS
- Start date
this was my thought. i love it.
GregS
Well-Known Member
Fun it is. and the opposition's worst nightmare is to watch as we enjoy the full protection of the law. Especially in light of McQueen, King, Kolanek, Redden, and other cases, the AD has been shown to be unassailable, as long as its limited conditions are met. That the SC has bitch slapped the COA and Schuette could not be more significant, or for that matter funny.
I will be continuing to edit the suggested agreement a few posts back as considerations become apparent, something like this:
I,______________________________________, swear and affirm that I am a qualifiying patient under the Michigan Medical marijuana Act, Initiated Law 1 of 2008.
__A recommendation for use of marijuana for medical purposes (see attached) was obtained from Dr._____________________________, a physician authorized under Part 170 of the public health code, 1978 PA 368, MCL 333.17001 to 333.17084, or an osteopathic physician under Part 175 of the public health code, 1978 PA 368, MCL 333.17501 to 333.17556, Physician's license I.D. number____________________, dated___________________________, stating that in the physician's professional opinion, and 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, that I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the debilitating medical condition or symptoms associated with the debilitating medical condition.
or:
__A registry card duly processed by the State of Michigan Licensing and Regulatory Agency (LARA) for the purpose of authorizing the medical use of marijuana , number______________________, has been issued to me which attests to a qualified (as specified above) physician's recommendation that in the physician's professional opinion, and after having completed a full assessment of my medical history and current medical condition made in the course of a bona fide physician-patient relationship, I am likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the debilitating medical condition or symptoms associated with the debilitating medical condition.
I hereby appoint_______________________________ as my caregiver under that law, and agree to conform with the Act in the medical use of marijuana.
I,______________________________________, swear and affirm that I am at least 21 years of age and have agreed to assist with the above named patient's medical use of marijuana. I have not been convicted of any felony within the past 10 years and have never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.
Sigs and notarized and done. All parties to this agreement should keep copies of this, the required medical documentation, and identification of the principals for their files.
This will not prevent arrest, but will, as long as a court abides by the law, help prevent conviction and require the charges to be dismissed in accordance with Sec. 8 as long as the evidence shows you to be in conformance.
Comments and suggestions are welcome, except for those on my ignore list.
woodsmantoker
Well-Known Member
Your "medical marijuana rights" mean piss... one term "drug war". One suggestion, focus on ending it.
Woodsmantoker.
Sorry folks I only do "frank" from now on. Time left for me is being spent on the cure, freedom.
Woodsmantoker.
Sorry folks I only do "frank" from now on. Time left for me is being spent on the cure, freedom.
abe supercro
Well-Known Member
long as you aren't referring to frank, from blue velvet, no prob
GregS
Well-Known Member
Sec. 8 document repository. It has been said that attoneys have advised me that my arguments in favor of understanding the AD are mistaken. That is not the case, no lawyer has chimed in on our discussions to correct me, and it is another of Townsend's lies. THIS is what the attorneys I work with have to say about it:
CERTIFICATE NEEDED FOR THE REGISTRY ID CARD
MEDICAL HISTORY FORM
DOCTORS STATEMENT SUPPORTING THE AFFIRMATIVE DEFENSE
USING THE AFFIRMATIVE DEFENSE
USE THE LINKS ABOVE FOR INFORMATION THAT APPLIES TO YOU!
FREE LEGAL RESOURCE & INFORMATION CLEARINGHOUSE
FREE LEGAL RESOURCE & INFORMATION CLEARINGHOUSE
CERTIFICATE NEEDED FOR THE REGISTRY ID CARD
MEDICAL HISTORY FORM
DOCTORS STATEMENT SUPPORTING THE AFFIRMATIVE DEFENSE
- DOCTORS OPINION MEMO IN SUPPORT of AFFIRMATIVE DEFENSE
- AUTHENTICATING AFFIDAVIT FOR DOCTOR'S OPINION
USING THE AFFIRMATIVE DEFENSE
These legal forms are user friendly.
A Free Service of Attorney Gregory Carl Schmid, Author of original Personal Responsibility Amendment Voter Initiatives
FORMS ARE COPYRIGHT PROTECTED. ALL RIGHTS RESERVED TO SCHMID & SCHMID PLLC.
YOU HAVE PERMISSION TO REPRODUCE FORMS & USE THEM FOR ALL LEGAL PURPOSES WITH CREDIT TO AUTHOR
A Free Service of Attorney Gregory Carl Schmid, Author of original Personal Responsibility Amendment Voter Initiatives
FORMS ARE COPYRIGHT PROTECTED. ALL RIGHTS RESERVED TO SCHMID & SCHMID PLLC.
YOU HAVE PERMISSION TO REPRODUCE FORMS & USE THEM FOR ALL LEGAL PURPOSES WITH CREDIT TO AUTHOR
PARTICIPATE IN A SURVEY AND MAKE INQUIRY BELOW
Dr. Bob
Well-Known Member
Lol....
So Greg, what 'rights' does the section 8 AD 'allow'? Anything? Nope, it is just a chance to tell your story to a jury, it is up to them to decide if you broke the law.
No one mentioned lawyers, including me. I just made it clear that folks that actually know what they are talking about think your 'affidavit' is a pipe dream and will get folks arrested and successfully prosecuted. It amazes me you still recommend putting people at risk like that and feel no remorse. Says a lot about you that you are willing to have other folks in this community put at risk because of your constant whining and claims that a piece of paper will protect them. All you are doing is suggesting that the 'unregistered caregiver' transfer the heat to the patient in court so they can make some money by selling to anyone with or without a card.
Tell you what, rather than just put up generic information about section 8 being available in very vague terms, why don't you have a real lawyer come in ON THE RECORD and clearly confirm that you 'idea' about the section 8 defense giving some sort of rights that mere mortal REGISTERED caregivers don't have, or that you little piece of paper will protect them.
I'm calling you on your BS... this is nonsense.
Dr. Bob
So Greg, what 'rights' does the section 8 AD 'allow'? Anything? Nope, it is just a chance to tell your story to a jury, it is up to them to decide if you broke the law.
No one mentioned lawyers, including me. I just made it clear that folks that actually know what they are talking about think your 'affidavit' is a pipe dream and will get folks arrested and successfully prosecuted. It amazes me you still recommend putting people at risk like that and feel no remorse. Says a lot about you that you are willing to have other folks in this community put at risk because of your constant whining and claims that a piece of paper will protect them. All you are doing is suggesting that the 'unregistered caregiver' transfer the heat to the patient in court so they can make some money by selling to anyone with or without a card.
Tell you what, rather than just put up generic information about section 8 being available in very vague terms, why don't you have a real lawyer come in ON THE RECORD and clearly confirm that you 'idea' about the section 8 defense giving some sort of rights that mere mortal REGISTERED caregivers don't have, or that you little piece of paper will protect them.
I'm calling you on your BS... this is nonsense.
Dr. Bob
GregS
Well-Known Member
Which is the lie? Did or did not attorneys you are aware of in any way contradict me? It was you who made the claim, and then told the lie, which leaves it incumbent on you to produce something that will demonstrate that.
The document that I present is not an affidavit, but a contract.
Dr. Bob
Well-Known Member
CL is an attorney and many others are intimately involved with the law and the section 8 defense, and your proposal was deemed absurd.
But by all means carry on. I think what was said about your attitude was 'If they get arrested and go to jail it is their own fault for listening to me.'
Bottom line was it was WELL discussed and you had your tail handed to you, so I guess you just took it on the road to try and find converts. You have no idea what section 8 involves, how it is applied, and have yet to answer my basic question 'what rights or authorizations do you feel section 8 provides beyond the opportunity to tell your story to a jury and plead for mercy?'. I really don't think you know the answer to that one, or should I start putting the questions to you as I did there (you know, to douga).
Those questions clearly showed the holes in your argument, and when you kept stumbling and fumbling with your answers it showed you really have no clue. But you have a following here, so I would rather not embarrass you again. Figured I'd leave this site to you to put out your 'opions'.
Dr. Bob
PS, there has been so much drivel put out, I hardly remember the various responses you got from me and others that actually understand these issues. You were correct about the lawyer remark, glad you took the time to go digging for it. But as it turns out, it was correct, as usual, that lawyers don't like your idea, and I have yet to see an actual confirmation of your plan by a single lawyer beyond the basic vague 'section 8 is out there' boilerplate you like to quote. The problem is you put your own meaning to the basic premise section 8 exists despite a serious lack of understanding and insight into the theory of section 8 and what it does and does not do.
But by all means carry on. I think what was said about your attitude was 'If they get arrested and go to jail it is their own fault for listening to me.'
Bottom line was it was WELL discussed and you had your tail handed to you, so I guess you just took it on the road to try and find converts. You have no idea what section 8 involves, how it is applied, and have yet to answer my basic question 'what rights or authorizations do you feel section 8 provides beyond the opportunity to tell your story to a jury and plead for mercy?'. I really don't think you know the answer to that one, or should I start putting the questions to you as I did there (you know, to douga).
Those questions clearly showed the holes in your argument, and when you kept stumbling and fumbling with your answers it showed you really have no clue. But you have a following here, so I would rather not embarrass you again. Figured I'd leave this site to you to put out your 'opions'.
Dr. Bob
PS, there has been so much drivel put out, I hardly remember the various responses you got from me and others that actually understand these issues. You were correct about the lawyer remark, glad you took the time to go digging for it. But as it turns out, it was correct, as usual, that lawyers don't like your idea, and I have yet to see an actual confirmation of your plan by a single lawyer beyond the basic vague 'section 8 is out there' boilerplate you like to quote. The problem is you put your own meaning to the basic premise section 8 exists despite a serious lack of understanding and insight into the theory of section 8 and what it does and does not do.
GregS
Well-Known Member
For what it's worth, p2p is not allowed and defensible unless an agreement can be produced in court to meet the requirements of the three prongs of the AD, and that the transferror happens to be a patient. To state that it is allowed without that qualifier is inaccurate. Rules of evidence are a mine field, and there are vagaries form one court to the next, depending on the judge. Prosecutors are practiced in discounting defense testimony. For that reason it is not to be taken lightly by the uninitiated. That is the reason for the contract we are kicking around. Without solid testimony, and best written and duly recorded, the defense would fail. Verbal testimony can be treacherous. It is ill advised for transferring patients to, for instance, rely on a transferee/patient to provide adequate verbal testimony that can succeed. Please consider that statements that insist it is protected must include this caveat.
The long and short of p2p is that it is not allowed. When parties agree to transfer between themselves and establish the necessary relationship to permit it, It becomes cg2pt, which is the only method available under the law and the most pertinent part of that argument. That is an important distinction.
The long and short of p2p is that it is not allowed. When parties agree to transfer between themselves and establish the necessary relationship to permit it, It becomes cg2pt, which is the only method available under the law and the most pertinent part of that argument. That is an important distinction.
GregS
Well-Known Member
In fact, CL indicated to me that a document of this type can be useful in an Affirmative Defense. Are you suggesting otherwise?
Your insistence that you 'forgot' that you lied is hysterical. The post indicated is right here in this thread, and required no real effort to find. It is only one of several lies that you have banked on. Another is your statement that, " I think what was said about your attitude was 'If they get arrested and go to jail it is their own fault for listening to me.'" Please post any text that can verify that I said that. That thinking thing is not working worth a shit for you.
The issue was, yes, discussed, and pretty thoroughly. Page upon page of the three long and productive threads that you speak of, however, were censored and deleted. That you and others continue to lie about the protection the law provides under sec. 8 is not reasonable. It is an integral part of the law.
DEFENDANT’S ASSERTION OF MICHIGAN MEDICAL MARIHUANA ACT
MEDICAL PURPOSE AFFIRMATIVE DEFENSE AND MOTION TO DISMISS
What You Need To Prove; How and When to Prove It.
Citation of the law: Cite as the Michigan Medical Marihuana Act
Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of the affirmative defense,
and crates a presumption of validity of the defense where a showing is made as to its elements. “Patient and a patient's
primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving
marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense.” Generally, in
asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence.
At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must
show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.
Statutory authority to bring a motion to dismiss, and mandatory dismissal:
Section 8(b) establishes the statutory authority for a motion to dismiss. “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 specified elements of the defense.” The showing must prove the elements by a preponderance of the
evidence, and where this showing is made the dismissal is mandatory.
Standing and Scope of the Affirmative defense:
The affirmative defense is available to the following people:
• Any “patient” who demonstrates the patient's medical purpose for using marihuana pursuant to this section; or
• Any patient's “primary caregiver” who demonstrates the patient's medical purpose for using marihuana pursuant
to this section.
The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of
marihuana or paraphernalia, in these proceedings:
• Any prosecution involving marihuana [Section 8(a)]
• Any disciplinary action by a business or occupational or professional licensing board or bureau [Section 8(c)1]; or
• Forfeiture of any interest in or right to property. [Section 8(c)2]
Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging
in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that
apply to the Section 8 affirmative defense and to the Act’s other more prophylactic immunities for registry participants.
The defense may not be asserted for any of the following:
• Smoking marijuana “in any public place”;
• Smoking marijuana on any form of public transportation;
• Any use by a person who has no serious or debilitating medical condition;
• Any conduct where being under the influence would constitute negligence or professional malpractice per se;
• Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under
the influence of marihuana.
• Any use or possession in a school bus;
• Any use or possession on the grounds of any preschool, primary, or secondary school;
• Any use or possession in any correctional facility;
Elements of the Affirmative Defense:
1. The Gatekeeper’s Statement [Section 8(a)1]:
• A physician (Licensed MD or Osteopath)
• has stated that
• in the physician's professional opinion
• after having completed a full assessment of
• the patient's medical history and
• patient's current medical condition
• which assessment was made in the course of a bona fide physician-patient relationship
• that the 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 of the patient's serious or debilitating medical
condition
2. The Reasonably Necessary Quantity [Section 8(a)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
3. The Medical Purpose [Section 8(a)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.
Methods of Proving the Elements of the Defense at Evidentiary Hearing
Proving the Physicians’ statement: On the Cheap.
It is essential that this defense be presentable without live testimony from the doctor. The court will likely make
defendant prove the “physician” is licensed, and so a certified record should be obtained early to avoid an MRE 902
emergency. Technically the patient can prove that the physician statement was made without hearsay objection, as the fact
that the statement was made is the operative fact in question. As the law does not allow a Judge to second guess the
physician[s professional opinion in this regard, so the defendant need only prove the statement was made, not whether it
was reasonable.
However, prosecutor will argue that defendant needs also to prove that the statement was a considered one, and
that may not be so easy. The prosecutor will argue that the statute provides the statement must be made “after having
completed a full assessment of the patient's medical history and patient's current medical condition”, and that must
being the course of a bona fide physicianpatient relationship. The defendant can testify on personal knowledge that he
was there and observed the “complete assessment” taking place, and can establish the bona fide relationship, but will the
showing be of sufficient weight to pass the preponderance test? Who is a patient to judge what constitutes a full
assessment by a doctor? The Patient can testify that the doctor said he completed the full assessment, but if the question
of whether that full assessment really took place is in issue, then such testimony would be hearsay because is would be
offered to prove the truth of the matter asserted – that the full assessment was made.
Three solutions present themselves. MRE 803(6) Hearsay exception for regularly kept business records could get
written medical reports into evidence to prove the complete assessment occurred, and even the bona fide relationship.
This would merely require compliance with MCL 902(11), and the assumption that the doctor wrote it all down. [See
MRE 902(11)] Certified records of regularly conducted activity. The original or a duplicate of a record…of regularly
conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under
oath by its custodian or other qualified person certifying that….the record is contemporaneous to the complete
assessment, in the course of regular activity, and according to regular practice. Counsel should obtain this affidavit
early, as prior notice of the declaration is a condition to self authentication. Of course, if seems obvious but that MRE
803(4) would apply. “Statements made for purposes of medical treatment or medical diagnosis in connection with
treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”
However, counsel may be confronted with the argument that the rule admits patient statements made to aid in
diagnosis, not those of the Doctor made to express the completeness of the doctor’s assessment. Counsel may simply
wish to argue that the element should be interpreted to mean that the “statement made” language includes the statement
that the doctor made a full assessment of the history and current condition. That is, that he 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 physicianpatient relationship, the patient is likely….” In this
interpretation, the patient’s testimony would be admissible to establish the entire element, and sound something like
this, “He stated he had made a full assessment of my medical history and current condition, and that he had formed a
professional opinion…, which was that I was likely to receive therapeutic or palliative benefit from the use of marijuana
to (treat or alleviate) my (serious medical condition or debilitating medical condition or symptoms thereof).
All of this is obviously out of your depth B*B.
Your insistence that you 'forgot' that you lied is hysterical. The post indicated is right here in this thread, and required no real effort to find. It is only one of several lies that you have banked on. Another is your statement that, " I think what was said about your attitude was 'If they get arrested and go to jail it is their own fault for listening to me.'" Please post any text that can verify that I said that. That thinking thing is not working worth a shit for you.
The issue was, yes, discussed, and pretty thoroughly. Page upon page of the three long and productive threads that you speak of, however, were censored and deleted. That you and others continue to lie about the protection the law provides under sec. 8 is not reasonable. It is an integral part of the law.
DEFENDANT’S ASSERTION OF MICHIGAN MEDICAL MARIHUANA ACT
MEDICAL PURPOSE AFFIRMATIVE DEFENSE AND MOTION TO DISMISS
What You Need To Prove; How and When to Prove It.
Citation of the law: Cite as the Michigan Medical Marihuana Act
Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of the affirmative defense,
and crates a presumption of validity of the defense where a showing is made as to its elements. “Patient and a patient's
primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving
marihuana, and this defense shall be presumed valid where the evidence shows the elements of the defense.” Generally, in
asserting affirmative defenses, defendant has the burden of going forward, with proof by a preponderance of the evidence.
At trial, where the defense has been asserted, and the threshold showing has been made by defendant, the prosecutor must
show, beyond a reasonable doubt, that the legally excusing elements of the defense do not exist.
Statutory authority to bring a motion to dismiss, and mandatory dismissal:
Section 8(b) establishes the statutory authority for a motion to dismiss. “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 specified elements of the defense.” The showing must prove the elements by a preponderance of the
evidence, and where this showing is made the dismissal is mandatory.
Standing and Scope of the Affirmative defense:
The affirmative defense is available to the following people:
• Any “patient” who demonstrates the patient's medical purpose for using marihuana pursuant to this section; or
• Any patient's “primary caregiver” who demonstrates the patient's medical purpose for using marihuana pursuant
to this section.
The defense applies to the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of
marihuana or paraphernalia, in these proceedings:
• Any prosecution involving marihuana [Section 8(a)]
• Any disciplinary action by a business or occupational or professional licensing board or bureau [Section 8(c)1]; or
• Forfeiture of any interest in or right to property. [Section 8(c)2]
Disqualifications: Section 8(a) provides that the defendant cannot assert the affirmative defense if possessing or engaging
in the use of marijuana was in violation of Section 7(b) of the Act. Section 7(b) lists certain disqualifying criteria that
apply to the Section 8 affirmative defense and to the Act’s other more prophylactic immunities for registry participants.
The defense may not be asserted for any of the following:
• Smoking marijuana “in any public place”;
• Smoking marijuana on any form of public transportation;
• Any use by a person who has no serious or debilitating medical condition;
• Any conduct where being under the influence would constitute negligence or professional malpractice per se;
• Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under
the influence of marihuana.
• Any use or possession in a school bus;
• Any use or possession on the grounds of any preschool, primary, or secondary school;
• Any use or possession in any correctional facility;
Elements of the Affirmative Defense:
1. The Gatekeeper’s Statement [Section 8(a)1]:
• A physician (Licensed MD or Osteopath)
• has stated that
• in the physician's professional opinion
• after having completed a full assessment of
• the patient's medical history and
• patient's current medical condition
• which assessment was made in the course of a bona fide physician-patient relationship
• that the 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 of the patient's serious or debilitating medical
condition
2. The Reasonably Necessary Quantity [Section 8(a)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
3. The Medical Purpose [Section 8(a)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.
Methods of Proving the Elements of the Defense at Evidentiary Hearing
Proving the Physicians’ statement: On the Cheap.
It is essential that this defense be presentable without live testimony from the doctor. The court will likely make
defendant prove the “physician” is licensed, and so a certified record should be obtained early to avoid an MRE 902
emergency. Technically the patient can prove that the physician statement was made without hearsay objection, as the fact
that the statement was made is the operative fact in question. As the law does not allow a Judge to second guess the
physician[s professional opinion in this regard, so the defendant need only prove the statement was made, not whether it
was reasonable.
However, prosecutor will argue that defendant needs also to prove that the statement was a considered one, and
that may not be so easy. The prosecutor will argue that the statute provides the statement must be made “after having
completed a full assessment of the patient's medical history and patient's current medical condition”, and that must
being the course of a bona fide physicianpatient relationship. The defendant can testify on personal knowledge that he
was there and observed the “complete assessment” taking place, and can establish the bona fide relationship, but will the
showing be of sufficient weight to pass the preponderance test? Who is a patient to judge what constitutes a full
assessment by a doctor? The Patient can testify that the doctor said he completed the full assessment, but if the question
of whether that full assessment really took place is in issue, then such testimony would be hearsay because is would be
offered to prove the truth of the matter asserted – that the full assessment was made.
Three solutions present themselves. MRE 803(6) Hearsay exception for regularly kept business records could get
written medical reports into evidence to prove the complete assessment occurred, and even the bona fide relationship.
This would merely require compliance with MCL 902(11), and the assumption that the doctor wrote it all down. [See
MRE 902(11)] Certified records of regularly conducted activity. The original or a duplicate of a record…of regularly
conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under
oath by its custodian or other qualified person certifying that….the record is contemporaneous to the complete
assessment, in the course of regular activity, and according to regular practice. Counsel should obtain this affidavit
early, as prior notice of the declaration is a condition to self authentication. Of course, if seems obvious but that MRE
803(4) would apply. “Statements made for purposes of medical treatment or medical diagnosis in connection with
treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”
However, counsel may be confronted with the argument that the rule admits patient statements made to aid in
diagnosis, not those of the Doctor made to express the completeness of the doctor’s assessment. Counsel may simply
wish to argue that the element should be interpreted to mean that the “statement made” language includes the statement
that the doctor made a full assessment of the history and current condition. That is, that he 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 physicianpatient relationship, the patient is likely….” In this
interpretation, the patient’s testimony would be admissible to establish the entire element, and sound something like
this, “He stated he had made a full assessment of my medical history and current condition, and that he had formed a
professional opinion…, which was that I was likely to receive therapeutic or palliative benefit from the use of marijuana
to (treat or alleviate) my (serious medical condition or debilitating medical condition or symptoms thereof).
All of this is obviously out of your depth B*B.
Dr. Bob
Well-Known Member
I agree with this statement. Your form can add some evidence to the contention that there was a relationship between the 'caregiver' and the 'patient' but I would not rely on it to stop the prosecution. Any evidence you can present will help. As far as becoming cg2pt, it is a weak argument unless there is a registry connection. The problem is that registered caregivers are limited to 5 total patients, and the flaw here is that by not registering the caregiver could, theoretically, have unlimited patients. By registering the caregiver gets section 4 immunity as long as they stay in limits, but the intent is clearly that there would be a registry relationship between caregiver and patient (and the courts have clearly ruled on this- see Green) and to leave a 'loophole' in the law to allow someone to circumvent the registry and enjoy more rights than those that play by the rules makes no sense and in my opinion would not be much of a defense.
Those are just some of the objections I have to the idea, which are presented in response to your civil response. Good to have a conversation between adults on the issue.
Dr. Bob
Dr. Bob
Well-Known Member
Your last little nonsense aside, this is a pretty accurate statement, not that it has anything to do with your presented idea. The summary is that the doctor should include a statement with his certification (which I might add is already on it if you look). It only has to do with the bonafide dr/pt relationship and is pretty basic. The statement can still be challenged by the prosecution (remember all the 'medical record fraud' charges being tossed about?) You have other prongs to prove. This is simply the easy one.
Dr. Bob
Dr. Bob
Well-Known Member
In your typical twisting of facts, you take a statement that your 'contract' might be helpful by CL to mean it authorizes it or somehow is a slam dunk for the defense. Of course any documentation you can provide is helpful.
You fail to mention that he also talked about putting the patient on trial rather than the caregiver by simply shifting the focus of the case. You would probably take my statement and twist it into me saying this would protect patients, it will not. It may in fact expand the scope of the investigation of the 'caregiver' to include the patient, up to and including the arrest of the patient.
the quote about your attitude and lack of concern for patient safety came from Cell. I clearly agree with it. Your concern here is to try and find a loophole so you can have unlimited patients to sell meds to (or justify the practice) for financial gain without regard to the risk. Had this been either logical or sound, dispensaries and their high powered attorneys would have picked up on it long ago and put it into practice.
The recent rash of charges for ANYONE selling or giving away meds outside of their own registered patients (including renewed charges against Green) should have been something you picked up on. Clearly you missed the memo.
Dr. Bob
You fail to mention that he also talked about putting the patient on trial rather than the caregiver by simply shifting the focus of the case. You would probably take my statement and twist it into me saying this would protect patients, it will not. It may in fact expand the scope of the investigation of the 'caregiver' to include the patient, up to and including the arrest of the patient.
the quote about your attitude and lack of concern for patient safety came from Cell. I clearly agree with it. Your concern here is to try and find a loophole so you can have unlimited patients to sell meds to (or justify the practice) for financial gain without regard to the risk. Had this been either logical or sound, dispensaries and their high powered attorneys would have picked up on it long ago and put it into practice.
The recent rash of charges for ANYONE selling or giving away meds outside of their own registered patients (including renewed charges against Green) should have been something you picked up on. Clearly you missed the memo.
Dr. Bob
GregS
Well-Known Member
Bob. Bob.
We are not talking about registry. It has been clearly stated that the protection available under the AD do not require it. We are prohibited from engaging only in activities proscribed in sec. 7. That you equate sec. 8 to a loophole is characteristic for you. You just don't get it. It is the law of the land and equally as valid as sec. 4. I have never argued, and will not argue, that registry does not protect from arrest. That is old news.
I have described facts to carry my arguments. Won't you please do the same to support that more than one caregiver, or more than five patients, or a quart of marinara made with infused olive oil as an alternative to smoking are not protected? It is about time your lies, speculation, and hyperbole stop.
We are not talking about registry. It has been clearly stated that the protection available under the AD do not require it. We are prohibited from engaging only in activities proscribed in sec. 7. That you equate sec. 8 to a loophole is characteristic for you. You just don't get it. It is the law of the land and equally as valid as sec. 4. I have never argued, and will not argue, that registry does not protect from arrest. That is old news.
I have described facts to carry my arguments. Won't you please do the same to support that more than one caregiver, or more than five patients, or a quart of marinara made with infused olive oil as an alternative to smoking are not protected? It is about time your lies, speculation, and hyperbole stop.
Dr. Bob
Well-Known Member
Certainly, let's look at the CA case in which it was clearly stated that activity, in this case sales, was outside the scope of the act unless it was with the up to 5 patients that the caregiver was associated through the registry. Then let's look at Green where a patient gave another patient medication without charge. That resulted in the ruling that any transfer with or without compensation outside of the registry was ruled not protected activity.
The AD is simply a chance to tell your story, whether you smoke or use it in olive oil matters not, if you exceed the limits, you have to plead your case on an individual basis to the court. It does not say you CAN exceed the limits, just that you get a chance to try and justify it. The matter of the 'unregistered caregiver' has already been hashed out repeatedly, I'll not repeat them yet again. Your problem is that you constantly are asking to be told, shown, provided documents, etc that clearly have shown your logic to be flawed in your basic premise, yet turn right around and ask for the same information again. I don't have the time to repeat myself, and most others have simply put you on ignore.
Bottom line, the section 8 defense is available, if you can justify to the court what you are doing, good for you. To try and circumvent the registry and claim you are using section 8 as a strategy is dangerous and will result in people going to jail. You just don't get that. Stay in the rules, if you get caught short or stretch one, you might pull it off if your story is good enough. To think that just because section 8 is there and you can do whatever you want (especially since the only reason this is being presented is to try and justify sales and economic gain) is just plain foolish. You do it, take the risk yourself, and tell us how it works for you before you suggest it as an option for others.
Dr. Bob
The AD is simply a chance to tell your story, whether you smoke or use it in olive oil matters not, if you exceed the limits, you have to plead your case on an individual basis to the court. It does not say you CAN exceed the limits, just that you get a chance to try and justify it. The matter of the 'unregistered caregiver' has already been hashed out repeatedly, I'll not repeat them yet again. Your problem is that you constantly are asking to be told, shown, provided documents, etc that clearly have shown your logic to be flawed in your basic premise, yet turn right around and ask for the same information again. I don't have the time to repeat myself, and most others have simply put you on ignore.
Bottom line, the section 8 defense is available, if you can justify to the court what you are doing, good for you. To try and circumvent the registry and claim you are using section 8 as a strategy is dangerous and will result in people going to jail. You just don't get that. Stay in the rules, if you get caught short or stretch one, you might pull it off if your story is good enough. To think that just because section 8 is there and you can do whatever you want (especially since the only reason this is being presented is to try and justify sales and economic gain) is just plain foolish. You do it, take the risk yourself, and tell us how it works for you before you suggest it as an option for others.
Dr. Bob
Dr. Bob
Well-Known Member
How many section 8 hearings have you planned or participated in Greg? Talking the talk without walking the walk is worthless. I've had a number. Including one going on right now. So your lack of experience and understanding of the basic premise of section 8 and how it is applied in court is deficient and speculative.
Now if you will excuse me, I have important issues to deal with.
Dr. Bob
Now if you will excuse me, I have important issues to deal with.
Dr. Bob
Dr. Bob
Well-Known Member
They are not protected, they are defensible- with various degrees of probability of success. You don't understand that section 8 does not give protections. It does not give rights. Read the section. Why do you think they call it the 'affirmative defense'- you have the chance to make the defense. It is up to the court to buy your story.
Section 8 is not a loophole, it is an opportunity to make a defense. Trying to use it to justify selling marijuana to anyone (card or not, registry or not) is trying to exploit section 8 as a loophole.
Dr. Bob
GregS
Well-Known Member
Sec.8 is the law.
Per the above mentioned links: Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of
the affirmative defense, and crates a presumption of validity of the defense where a showing is
made as to its elements. "Patient and a patient's primary caregiver, if any, may assert the medical
purpose for using marihuana as a defense to any prosecution involving marihuana, and this
defense shall be presumed valid where the evidence shows the elements of the defense."
Generally, in asserting affirmative defenses, defendant has the burden of going forward, with
proof by a preponderance of the evidence. At trial, where the defense has been asserted, and the
threshold showing has been made by defendant, the prosecutor must show, beyond a reasonable
doubt, that the legally excusing elements of the defense do not exist.
Per the above mentioned links: Statutory authority to assert defense and presumption: Section 8(a) authorizes assertion of
the affirmative defense, and crates a presumption of validity of the defense where a showing is
made as to its elements. "Patient and a patient's primary caregiver, if any, may assert the medical
purpose for using marihuana as a defense to any prosecution involving marihuana, and this
defense shall be presumed valid where the evidence shows the elements of the defense."
Generally, in asserting affirmative defenses, defendant has the burden of going forward, with
proof by a preponderance of the evidence. At trial, where the defense has been asserted, and the
threshold showing has been made by defendant, the prosecutor must show, beyond a reasonable
doubt, that the legally excusing elements of the defense do not exist.