Michigan Medical Marijuana Section 8 Affirmative Defense



Michigan Medical Marijuana Affirmative Defense.


So, you qualify as a medical marijuana patient and/or caregiver and were arrested, or your house was searched, and now you are being charged with possession of marijuana, manufacturing marihuana (growing marijuana), possession with intent to deliver marijuana, or maintaining a drug house. Now what?


Michigan's Medical Marijuana Affirmative Defense to Criminal Marijuana Charges.


Section 8 Medical Use Defense.


The Michigan Medical Marihuana Act gives protection to both registered AND unregistered patients and their caregivers irrespective of the identification card system. This is a second completely independent way of defending your medicinal use of marijuana and avoiding a criminal conviction. Of course, you will be arrested, booked, fingerprinted, and charged with marijuana crimes. The Section 8 affirmative use defense does NOT provide immunity, but rather, excusablity. This defense is similar to self-defense, where the alleged criminal actions are admitted — but excused by law. 


The affirmative defense of medical marijuana is presumed by law to be valid when three criteria are met:


(1) A physician has stated that a patient is likely to receive therapeutic benefit from using marijuana. The key to this first requirement is that the person has a Michigan licensed medical doctor who has certified that the patient is likely to receive a therapeutic benefit from the use of weed. The affirmative defense applies even though the patient or caregiver was never registered or their registration card expired.


(2) The patient and caregiver were in possession of an amount of marijuana and marijuana plants not more than 'reasonably necessary to ensure the uninterrupted supply' of marijuana to treat the patient. Unlike the 2.5 ounce and 12 plant limits of Section 4, Section 8 does not set any limits. Nor does it prohibit transfers between patients and caregivers, or have any requirements that marijuana be grown in an "enclosed, locked facility." Instead, Section 8 allows a patient or caregiver to have as many plants and ounces as "reasonably necessary" to guarantee an uninterrupted supply. Common sense applies here, and you would do well to stay within the limits of Section 4, as it may be extremely hard to argue this defense if you have a large amount of cannabis.


(3) The patient and/or their designated caregiver was actually engaged in acquiring or growing marijuana for the patient.


If a person accused of a marijuana crime can demonstrate these three criteria, a court MUST dismiss the marihuana charges. If any of these three factors are in question, the medical use defense is to be given to a jury to decide. Although this defense sounds good, it is a difficult path at best. State Prosecutors and recent Court opinions are making it extremely difficult for patients or caregivers to demonstrate the medical use defense.


Do not make the mistake of thinking you can represent yourself in court and win. Marijuana has been demonized since it was declared illegal in 1937 by the federal government and added to the Schedule I list of drugs in 1970. Not surprisingly, there is a tremendous amount of resistance to this new law. You should plan to hire an experienced attorney to help you.


So, if the Affirmative Defense of Section 8 is properly presented and argued before a judge, an arrest for possession or manufacture of marijuana can be dismissed. In order to assert this defense, you must have obtained a statement or recommendation from a Michigan licensed physician (M.D. or D.O.) that stated that they thought you would likely obtain a medical benefit from using marijuana. The physician's statement must have been recorded prior to the alleged criminal activity (i.e. the date of a raid or police contact).


Contrary to popular belief (and daily headlines), the Michigan Medical Marihuana Act does not provide a defense for recreational possession or use; it is strictly a protection for the medical user and their caregiver. The Marihuana Act only protects those growing, possessing, and using marijuana for medical purposes. Fraudulent representation of any fact or circumstance relating to the medical use of marihuana to  to a law enforcement officer in order to avoid arrest or prosecution is punishable by a fine of $500. In additiion, you could be charged for making a false statement to a police officer and violating the Controlled Substances Act.


Retroactive Application – Physician's Certification.


The Michigan Medical Marihuana Act is not “retroactive.” That means it does not apply to arrests or convictions that occurred prior to December 4, 2008. If you discussed medical marijuana with your doctor before an arrest, and if he or she recommended that you might benefit from from medical cannabis, you should be able to assert the medical use affirmative defense to a subsequent marijuana criminal charge. However, a person wishing to use this defense must have consulted and obtained a doctor's recommendation prior to the unregistered use or possession of medical marijuana.


There are many who do not trust 'big brother,' and this part of the Act allows them to avoid a marijuana conviction, as long as they meet the three criteria. Registering is wiser, as this should provide you with a 'safe harbor' against state criminal charges, give you credibility with police, and save time and money. You would also avoid the embarrassment of being arrested, booked, and charged with a crime, not to mention having your medical marijuana seized and not returned. Also, it can be very difficult and expensive to attempt to bring your doctor to court to testify.


Federal Laws do Not Recognize Michigan's Medical Marijuana Act and its Protections.


All should be aware that state medical marijuana laws do not carry any weight or authority with the federal government. It goes without saying that there are very strict federal laws that prohibit possession of marijuana, manufacture of marijuana, and the gift, sale, or delivery of any amount of marijuana. Ironically, while medical marihuana is legal in Washington D.C., federal law prohibits any possession or use – whether medical or not. Most federal marijuana laws have mandatory minimum prison sentences. Marijuana is still a Schedule I highly prohibited drugs. There is also the 1000-foot Drug Free School Zones that severely increase the penalties.


No medical marijuana state law can trump federal law. The feds have kept weed on its Schedule I list of illegal drugs since the list was created in 1970. The federal government is not required to recognize Michigan's Medical Marijuana Identification Card system or its Section 8 affirmative Defense. To a federal pot or cannabis charge, your medical marijuana ID card and the affirmative defense is "not relevant," meaning a federal judge will refuse to acknowledge its defenses and the words "medical marijuana" cannot even be mentioned at trial.


The current administration has indicated a "hands off" approach to caregivers and patients who register and comply with their state medical marijuana laws. See our Medical Marihuana page for more information.  Of course, this decision not to prosecute can be changed at any moment. In addition, you can be charged with violating federal law if you are on tribal property, i.e., federal forest, national park, or an Indian casino.


We are Knowledgeable About Michigan's Medical Marijuana Law.


There are many lawyers, prosecutors, and police officers unsure how to interpret and argue the Medical Marihuana Act. We know how. We are experienced.


Contact Us


At our Michigan Marijuana Lawyer Criminal Defense firm, we have years or experience with marijuana cases, and have defended numerous individuals charged with minor to serious marijuana crimes. We have represented patients and caregivers accused of marijuana crimes such as: possession of marijuana, manufacture, delivery, possession with intent to deliver, use of marijuana, and maintaining a drug house. We are experienced in search and seizure cases and can raise proper defenses at the appropriate times. Put our experience to work. Call us at (616) 676-8770

If you or a family member has been charged with or accused of a crime you need immediate advice from an experienced criminal defense attorney. Contact our Grand Rapids, Michigan, marijuana criminal defense lawyer at (616) 676-8770.

Bruce Alan Block, PLC

Attorney and Counselor at Law
1155 East Paris Ave. SE Suite 300, Grand Rapids, MI 49546
Phone: (616) 676-8770


Serving Clients throughout Western Michigan, in Grand Rapids, Ada, East Grand Rapids, Kentwood, Cascade, Wyoming, Byron Center, Wyoming, Caledonia, Cascade, Rockford, Holland, Grand Haven, Grandville, Kent, Barry, Ottawa, Muskegon and Ionia County.


We represent college students from Calvin College, Aquinas, Grand Valley State University, Cornerstone University, Grand Rapids Community College, Michigan State University, and Western Michigan University.


Disclaimer: It is our hope that everyone will strictly adhere to the Michigan Medical Marihuana Act's requirements. Please understand that the purpose of this webpage is strictly informational; nothing on this website or this webpage are intended to suggest that you violate any state or federal law. You are advised to seek your own personalized legal advice.