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People v Nicholson – Court of Appeals Attempts to Clarify Michigan Medical Marihuana Act

Earlier this week, the Michigan Court of Appeals held in People v. Nicholson that a Michigan medical marihuana patient may be immune from prosecution even if they did not have the registry card in their possession at the time of the arrest.  The Court held that if the patient has been issued a registry identification card issued prior to the arrest, then they are immune from prosecution unless there is evidence to show that the patient’s possession of marijuana was not in accordance with the provisions of the MMMA.

Specifically in Nicholson, the patient was in possession of an amount of marijuana permitted by the MMMA, had applied for but had not received his registry card and did not have his application materials in his possession. Nicholson was arrested and charged with misdemeanor possession of marijuana. Nicholson had submitted a valid application, but had not received his registry identification card. According to Section 9(b) of the MMMA, Nicholson’s application was legally enough to qualify as a valid registry identification card as the department had failed to issue a registry identification card in response to his application within 20 days of its submission.

What is interesting about the decision is the differentiation between immunity from arrest and immunity from prosecution or penalty. The Court’s holding makes it clear that a patient must keep their registry identification card on them at all times in order to be immune from arrest. However, even if the patient doesn’t have their registry card in their possession at the time of the arrest, they may still be able to immunity from prosecution, so long as they had a valid registry card at the time of the arrest. In addition, even if an individual is unregistered and does not have a registry card, they may attempt to assert the affirmative defense in Section 8 of the MMMA in order to defeat prosecution.

What does all this mean? The MMMA is not that clear and requires careful planning and study in order for a patient or caregiver to operate within its parameters. In my experience thus far with the MMMA, lawyers are often as confused as the clients who have hired them. In order to proactively attempt to avoid the stress of being arrested or to defend you in a drug crime prosecution you should consult with an attorney who understands and stays up to date with the MMMA and the recent court decisions interpreting it.

If you have been charged with a drug crime such as possession of marijuana or possession with intent to deliver, please contact me at (517) 388-6800 for a free initial phone consultation. Let me discuss your legal rights with you and determine how I can best help you defend those rights. My office is located in Lansing, Michigan, however, I have represented clients in over 50 counties across Michigan, including Ingham, Eaton, Isabella, Clinton and Gratiot Counties.