• Michigan Court of Appeals Clarifies Affirmative Defenses under the Michigan Medical Marihuana Act
  • November 15, 2010
  • Law Firm: Mika Meyers Beckett Jones PLC - Grand Rapids Office
  • In the case of People v Redden (September 14, 2010), the Michigan Court of Appeals held that the Michigan Medical Marihuana Act (MMMA) does not require a person to have a registry identification card to be able to assert medical reasons for using marijuana as an affirmative defense to prosecution involving marijuana.

    As explained by the court, the MMMA provides two ways in which to show legal use of marijuana for medical purposes in accordance with the act: “Individuals may either register and obtain a registry identification card under section 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the affirmative defense in section 8.”

    Section 8 of the MMMA provides, in relevant part, as follows:

    “(a) Except as provided in section 7, a 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 . . . .”

    The prosecution in the Redden case argued that the phrase “except as provided in section 7” effectively precluded individuals who did not possess a registry identification card from asserting the section 8 affirmative defense. According to the prosecution, subsection 7(a), which provides that “[t]he medical use of marihuana is allowed to the extent that it is carried out in accordance with the provisions of this act,” justified its position that the registration requirements of section 4 must be adhered to in order for a defendant to invoke the section 8 affirmative defense.

    In rejecting the prosecution’s position, the court explained that the protection afforded under section 4 to individuals who obtain a registry identification card differs from the protection afforded under section 8 and, therefore, the plain language of the statute establishes that the section 8 affirmative defense is available to an individual who does not satisfy the registration requirements of section 4. The court also noted that its interpretation was supported by the language of the ballot proposal pursuant to which the MMMA was enacted, which “explicitly informed voters that the law would permit registered and unregistered patients to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana.” [Emphasis supplied by the court.]