This is a tale of one statute and two defendants.  One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act.  The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence.  Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act.  With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals.  Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel.  King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case.  The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person.  A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession.  Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution.  A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card.  In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users.  The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:

• The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card; 
• The decision affirms the MMA's definition of the legal, albeit limited use of marijuana; 
• The immunity set forth in section 4 of the MMA is broadly construed; 
• Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.

This may not be the end of the medical marijuana cases.  The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana.  After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

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