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People v. Hartwick

Supreme Court of Michigan

July 27, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
RICHARD LEE HARTWICK, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ROBERT TUTTLE, Defendant-Appellant

Argued January 15, 2015

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Richard Lee Hartwick was charged in the Oakland Circuit Court with manufacturing marijuana and possessing it with the intent to deliver it. Hartwick was a registered qualifying patient under the Michigan Medical Marihuana Act (MMMA). He served as his own primary caregiver and the primary caregiver for five other registered qualifying patients to whom he was properly connected under the MMMA. The police, acting on a tip, confronted Hartwick and later conducted a consent search of his home where the police discovered a disputed number of marijuana plants and approximately 3.69 ounces of marijuana. Hartwick moved to dismiss the charges, claiming immunity under § 4 of the MMMA, MCL 333.26424, and the affirmative defense under § 8 of the MMMA, MCL 333.26428. In the alternative, Hartwick sought permission to present a § 8 defense at trial. The trial court, Colleen A. O'Brien, J., denied the motions. The Court of Appeals denied Hartwick's delayed application for leave to appeal. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration as on leave granted. 493 Mich. 950, 828 N.W.2d 48 (2013). The Court of Appeals, SAAD, P.J., and SAWYER, J. (JANSEN, J., concurring), affirmed the trial court. 303 Mich.App. 247; 842 N.W.2d 545 (2013). The Supreme Court granted leave to appeal in Docket No. 148444. 496 Mich. 851, 846 N.W.2d 922 (2014) .

Robert Tuttle was charged in the Oakland Circuit Court with three counts of delivering marijuana, one count of manufacturing marijuana, one count of possessing marijuana with the intent to deliver it, and two counts of possession of a firearm during the commission of a felony. Tuttle was a registered qualifying patient under the MMMA who served as his own primary caregiver. It was unclear whether he was properly connected as the primary caregiver to one or two other registered qualifying patients. Tuttle was arrested for selling marijuana on three occasions to an individual with whom Tuttle was not properly connected under the MMMA. Tuttle claimed immunity under § 4 and the affirmative defense under § 8 of the MMMA. The trial court, Michael D. Warren, Jr., J., rejected both claims and denied Tuttle's request to present a § 8 defense at trial. According to the court, immunity was not appropriate because Tuttle's illegal conduct--selling marijuana to an individual outside the protection of the MMMA--tainted Tuttle's conduct with regard to the other charges. The trial court denied Tuttle use of the affirmative defense in § 8 because Tuttle failed to present prima facie evidence of each element of the defense. The Court of Appeals denied Tuttle's application for leave to appeal. In lieu of granting Tuttle's application for leave to appeal, the Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. 493 Mich. 950, 828 N.W.2d 48 (2013). The Court of Appeals, SAAD, P.J., and SAWYER, J. (JANSEN, J., concurring), affirmed the trial court. 304 Mich.App. 72; 850 N.W.2d 484 (2014). The Supreme Court granted leave to appeal in Docket No. 148971. 496 Mich. 851, 846 N.W.2d 922.

For PEOPLE OF MI, Plaintiff-Appellee (148444): KATHRYN G. BARNES, PROSECUTOR-APPELLATE DIVISION, PONTIAC, MI.

For RICHARD LEE HARTWICK, Defendant-Appellant (148444): FREDERICK J. MILLER, OXFORD, MI.

For PEOPLE OF MI, Plaintiff-Appellee (148971): TANYA NAVA, PROSECUTOR-APPELLATE DIVISION, PONTIAC, MI.

For TUTTLE ROBERT, Defendant-Appellant (148971): DANIEL J. M. SCHOUMAN, COMMERCE TOWNSHIP, MI.

Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein.

OPINION

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[498 Mich. 198] BEFORE THE ENTIRE BENCH

Brian K. Zahra, J.

In 2008, the voters of Michigan passed into law a ballot initiative[1] now codified as the Michigan Medical Marihuana[2] Act (MMMA), MCL 333.26421 et seq. Unlike the procedures for the editing and drafting of bills proposed through the Legislature, the electorate--those who enacted this law at the ballot [498 Mich. 199] box--need not review the proposed law for content, meaning, readability, or consistency.[3]

This lack of scrutiny in the lawmaking process is significant because initiatives such as the MMMA cannot be modified " except by a[nother] vote of the electors" or by a three-fourths vote of each chamber of the Legislature.[4] This constraint on Legislative power suggests that there can be matters of public policy so important to the people that they cannot be left in the hands of the elected legislators. But this constitutionally protected reservation of power by the people comes with a cost. The lack of procedural scrutiny in the initiative process leaves the process susceptible to the creation of inconsistent or unclear laws that may be difficult to interpret and harmonize. The MMMA is [498 Mich. 200] such a law. While the MMMA has been the law in Michigan for just under seven years, this Court has been called on to give meaning to the MMMA in nine different cases.[5] The many inconsistencies in the

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law have caused confusion for medical marijuana caregivers and patients, law enforcement, attorneys, and judges, and have consumed valuable public and private resources to interpret and apply it. This confusion mainly stems from the immunity, MCL 333.26424 (§ 4), and the affirmative defense, MCL 333.26428 (§ 8), provisions of the MMMA. We granted leave in People v Hartwick [6] and People v Tuttle [7] to once again consider [498 Mich. 201] the meaning and application of these two very important sections of the MMMA.[8]

For the reasons fully explained in this opinion regarding § 4, we hold:

(1) entitlement to § 4 immunity is a question of law to be decided by the trial court before trial;
(2) the trial court must resolve factual disputes relating to § 4 immunity, and such factual findings are reviewed on appeal for clear error;
(3) the trial court's legal determinations under the MMMA are reviewed de novo on appeal;
(4) a defendant may claim immunity under § 4 for each charged offense if the defendant shows by a preponderance of the evidence that, at the time of the charged offense, the defendant
(i) possessed a valid registry identification card,
(ii) complied with the requisite volume limitations of § 4(a) and § 4(b),
(iii) stored any marijuana plants in an enclosed, locked facility, and
(iv) was engaged in the medical use of marijuana;
[498 Mich. 202] (5) the burden of proving § 4 immunity is separate and distinct for each charged offense;

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(6) a marijuana transaction by a registered qualifying patient or a registered primary caregiver that is not in conformity with the MMMA does not per se taint all aspects of the registered qualifying patient's or registered primary caregiver's marijuana-related conduct;
(7) a defendant is entitled to a presumption under § 4(d) that he or she was engaged in the medical use of marijuana if the defendant has shown by a preponderance of the evidence that, at the time of the charged offense, the defendant
(i) possessed a valid registry identification card, and
(ii) complied with the requisite volume limitations of § 4(a) and § 4(b); [9]
(8) the prosecution may rebut the § 4(d) presumption that the defendant was engaged in the medical use of marijuana by presenting evidence that the defendant's conduct was not for the purpose of alleviating the registered qualifying patient's debilitating medical condition;
(9) non-MMMA-compliant conduct may rebut the § 4(d) presumption of medical use for otherwise MMMA-compliant conduct if a nexus exists between the non-MMMA-compliant conduct and the otherwise MMMA-compliant conduct;
[498 Mich. 203] (10) if the prosecution rebuts the § 4(d) presumption of the medical use of marijuana, the defendant may still establish, on a charge-by-charge basis, that the conduct underlying a particular charge was for the medical use of marijuana; and
(11) the trial court must ultimately weigh the evidence to determine if the defendant has met the requisite burden of proof as to all elements of § 4 immunity.

Regarding § 8, we hold:

(1) a defendant must present prima facie evidence of each element of § 8(a) in order to be entitled to present a § 8 affirmative defense to a fact-finder;
(2) if the defendant meets this burden, then the defendant must prove each element of § 8(a) by a preponderance of the evidence; and
(3) a valid registry identification card does not establish any presumption under § 8.[10]

For the reasons stated in this opinion, and in accordance with the conclusions of law described above, we affirm in part, and reverse in part, the November 19, 2013 judgment of the Court of Appeals in People v [498 Mich. 204] Hartwick.[11] We further remand Hartwick to the trial court for an evidentiary

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hearing regarding Hartwick's entitlement to immunity under § 4. In People v Tuttle, we affirm in part, and reverse in part, the January 30, 2014 judgment of the Court of Appeals.[12] We also remand Tuttle to the trial court for an evidentiary hearing regarding Tuttle's entitlement to immunity under § 4.

I. STATEMENT OF FACTS

A. PEOPLE V HARTWICK

In late 2011, police officers in Oakland County received a tip regarding a marijuana growing operation at Hartwick's home. Law enforcement officers confronted Hartwick, who admitted growing marijuana, but stated he was in compliance with the MMMA. After consenting to a search of his home, Hartwick led the police officers to a bedroom containing dozens of marijuana plants in varying sizes.[13] The police officers also found a total of 104.6 grams--approximately 3.69 ounces--of usable marijuana in the home.

The Oakland County Prosecutor charged Hartwick with manufacturing 20 to 200 marijuana plants and possession with intent to deliver marijuana. Hartwick moved to dismiss those charges based on both the immunity (§ 4) and the affirmative defense (§ 8) [498 Mich. 205] provided in the MMMA. The trial court held an evidentiary hearing at which Hartwick was the only witness. Hartwick testified that he was a medical marijuana patient and his own caregiver,[14] and a connected[15] primary caregiver to five registered qualifying patients. He submitted into evidence the registry identification cards for himself and the five connected qualifying patients. Hartwick could not identify the debilitating conditions suffered by two of the qualifying patients statutorily connected to him. Further, Hartwick could not identify the certifying physician for any of the five connected qualifying patients.

The trial court concluded that Hartwick was not entitled to § 4 immunity. The court reasoned that Hartwick did not comply with the requirements of the MMMA because he did not know if the patients connected to him even had debilitating

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medical conditions.[16]

[498 Mich. 206] The trial court similarly denied Hartwick's motion to dismiss under § 8 and his motion in the alternative to present a § 8 affirmative defense to the jury. The court determined that Hartwick failed to present " testimony regarding a 'bona fide physician-patient relationship or a likelihood of receiving therapeutic or palliative benefit from the medical use of marijuana,' or any testimony on whether defendant possessed no more marijuana than reasonably necessary for medical use." [17] Thus, Hartwick failed to establish his entitlement to a § 8 affirmative defense.

The Court of Appeals affirmed the trial court, rejecting Hartwick's contention " that his possession of a registry identification card automatically immunizes him from prosecution under § 4 and grants him a complete defense under § 8." [18] The Court of Appeals focused on the " primary purpose" of the MMMA, " which is to ensure that any marijuana production and use permitted by the statute is medical in nature and only for treating a patient's debilitating medical condition." [19]

B. PEOPLE V TUTTLE

Tuttle was a registered qualifying patient and his own caregiver. He was also connected as a registered primary caregiver to at least one other registered qualifying patient.[20] On three separate occasions in [498 Mich. 207] early 2012, Tuttle sold marijuana to William Lalonde even though Tuttle was not formally connected to Lalonde under the MMMA. In addition to arresting Tuttle for providing marijuana to Lalonde, the Oakland County Sheriff's Office searched Tuttle's home where they found 33 marijuana plants, 38 grams of marijuana (approximately 1.34 ounces), and several weapons locked in a gun safe. Tuttle was subsequently charged with multiple counts related to the possession, delivery, and manufacture of marijuana, as well as possession of a firearm during the commission of a felony.[21]

Tuttle attempted to invoke the immunity provided under § 4 for counts IV-VII relating to possession of the marijuana in his home. Tuttle argued that he possessed a valid registry identification card and complied with the volume and storage limitations of § 4(a) and § 4(b). The prosecution argued that Tuttle did not comply with the requirements of § 4 because Tuttle provided marijuana to Lalonde outside the parameters of the MMMA. According to the prosecution, these transactions (for which Tuttle was charged in counts I-III) tainted all of Tuttle's marijuana-related activity. The trial court agreed and denied Tuttle's motion under § 4 for immunity and dismissal of the charges.

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Tuttle then raised the § 8 affirmative defense to counts I-III. At an evidentiary hearing, Tuttle presented his registry identification card and the registry identification cards belonging to two allegedly connected qualifying patients: Michael Batke and Frank Colon. Lalonde, Batke, and Colon testified at the hearing.

[498 Mich. 208] Lalonde testified that he was a registered qualifying patient who met Tuttle through an internet site that purported to match medical marijuana patients with caregivers. Lalonde also testified that he told Tuttle he used marijuana to treat chronic pain. Batke testified that he was a registered qualifying patient and that Tuttle was properly connected to him under the MMMA as a registered primary caregiver. Batke also testified that he would call Tuttle every time he needed marijuana, and Tuttle provided Batke with approximately two ounces of marijuana a month. Lastly, Colon testified that he was a medical marijuana patient, that he had a debilitating medical condition,[22] and that he utilized Tuttle as a primary caregiver. Colon stated he requested between one and two ounces of marijuana a week from Tuttle.

After the evidentiary hearing, the trial court determined that Tuttle did not present prima facie evidence for each element of § 8(a). Specifically, the trial court determined that Tuttle failed to present any evidence that the medical marijuana users to whom Tuttle was connected had physicians who " completed a full assessment of each patient's medical history and current medical condition" as required by § 8(a)(1).[23] The court also concluded that Tuttle failed to establish a question of fact regarding whether the quantity of marijuana he possessed was reasonable under § 8(a)(2).[24] The Court of Appeals affirmed the trial court and additionally concluded that Tuttle had not presented prima facie [498 Mich. 209] evidence as to Tuttle's own medical use of marijuana under § 8(a)(3).

Regarding § 4 immunity, the Court of Appeals concluded that providing marijuana to Lalonde tainted all of Tuttle's marijuana-related conduct thereby negating Tuttle's ability to invoke § 4 immunity for any charge. Regarding the affirmative defense available under § 8, the Court of Appeals concluded that Tuttle's registry identification card did not establish prima facie evidence of the required elements of § 8. The court also concluded that the testimony of Tuttle's patients was equally deficient in presenting prima facie evidence of those elements.

II. ANALYSIS

The possession, manufacture, and delivery of marijuana are punishable criminal offenses under Michigan law.[25] Under the MMMA, though, " [t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of th[e] act." [26] The MMMA grants to persons in compliance with its provisions either immunity from, or an affirmative defense to, those marijuana-related violations of state law. In the cases before us, we must resolve

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questions surrounding the § 4 grant of immunity and the § 8 affirmative defense.

A. STANDARD OF REVIEW

We review questions of statutory interpretation de novo.[27] The MMMA was passed into law by initiative. We must therefore determine the intent of the electorate [498 Mich. 210] in approving the MMMA, rather than the intent of the Legislature.[28] Our interpretation is ultimately drawn from the plain language of the statute, which provides " the most reliable evidence" of the electors' intent.[29] But as with other initiatives, we place " special emphasis on the duty of judicial restraint." [30] Particularly, we make no judgment as to the wisdom of the medical use of marijuana in Michigan. This state's electors have made that determination for us. To that end, we do not attempt to limit or extend the statute's words. We merely bring them meaning derived from the plain language of the statute.

B. SECTION 4 IMMUNITY

Section 4 grants broad immunity from criminal prosecution and civil penalties to " qualifying patient[s]" [31] and " primary caregiver[s]." [32] Subsection (a) specifically grants immunity to qualifying patients and states in relevant part:

(a) A qualifying patient who has been issued and [498 Mich. 211] possesses a registry identification card[33] shall not be subject to arrest, prosecution, or penalty in any manner . . . for the medical use[34] of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified . . . a primary caregiver . .., 12 marihuana plants kept in an enclosed, locked facility.[35]

A registered qualifying patient, therefore, may possess up to 2.5 ounces of usable marijuana.[36] Additionally, a registered

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qualifying patient may possess up to 12 marijuana plants, kept in an enclosed, locked facility, unless that patient specified a primary caregiver during the state registration process.[37] Section 4 immunity also requires that the registered qualifying patient was engaged in the medical use of marijuana.

Similarly, § 4(b) provides immunity to registered primary caregivers. It states, in relevant part:

[498 Mich. 212] (b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner . . . for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. . . . This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.

A primary caregiver, therefore, may only possess up to 2.5 ounces of usable marijuana and 12 marijuana plants in an enclosed, locked facility for each registered qualifying patient who has specified the primary caregiver during the state registration process. Similar to § 4(a), this section only applies if the primary caregiver is assisting a qualifying patient with the medical use of marijuana.

1. PROCEDURAL ASPECTS OF § 4

We begin our analysis of the procedural aspects of § 4 with the rather unremarkable proposition that entitlement to immunity under § 4 is a question of law. Immunity is a unique creature in the law and is distinguishable from other traditional criminal defenses. A successful claim of immunity excuses an alleged offender for engaging in otherwise illegal conduct, regardless of the sufficiency of proofs in the [498 Mich. 213] underlying case. This is consistent with the way claims of immunity are handled in other areas of law.[38] Moreover, the parties agree that § 4 immunity should be determined as a matter of law. There is no indication that the voters who enacted the MMMA intended to treat § 4 immunity differently than other claims of immunity.

Our decision in Kolanek supports this conclusion. There we explained that § 4 " 'grants qualifying patient[s]' who hold 'registry identification card[s]' broad immunity from criminal prosecution, civil penalties, and disciplinary actions." [39] A

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registered qualifying patient, however, " who do[es] not qualify for immunity under § 4, as well as unregistered persons, are entitled to assert in a criminal prosecution the affirmative defense . . . under § 8 . . . ." [40] By contrasting the broad grant of immunity in § 4 " from prosecution" with the affirmative defense in § 8 " in a criminal prosecution," we implied that the decision regarding entitlement to immunity must be made before trial. By its very nature, immunity must be decided by the trial court as a matter of law, and in pretrial proceedings, in order to establish immunity from prosecution.

Deciding these questions of law necessarily involves resolving factual disputes. To determine whether a defendant is entitled to the § 4 grant of immunity, the trial court must make factual determinations, including whether the defendant has a valid registry identification [498 Mich. 214] card and whether he or she complied with the volume, storage, and medical use limitations. The expediency of having the trial court resolve factual questions surrounding § 4 underscores the purpose of granting immunity from prosecution.

Other matters routinely conducted in pretrial contexts, such as entrapment hearings, call for the trial court to act as both the finder of fact and arbiter of law.[41] Like entrapment, § 4 immunity " is not a defense that negates an essential element of the charged crime. Instead, it presents facts that are collateral to the crime that justify barring the defendant's prosecution." [42] We therefore conclude that the trial court must resolve factual disputes for the purpose of determining § 4 immunity.

Of course, the trial court's determinations are not without review. Questions of law are reviewed de novo by appellate courts.[43] A trial court's factual findings are subject to appellate review under the clearly erroneous standard:

Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.[44]

We find no reason, nor have the parties offered any reason, to deviate from this model of appellate review. Therefore, we conclude that specific factual findings [498 Mich. 215] made by the trial court in a § 4 immunity hearing are reviewed under the clearly erroneous standard, and questions of law surrounding the grant or denial of § 4 immunity are reviewed de novo. Further, the trial court's ultimate grant or denial of immunity is fact-dependent and is reviewed for clear error.[45]

2. SUBSTANTIVE ASPECTS OF § 4

Section 4 provides a broad grant of immunity from criminal prosecution and civil

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penalties to registered qualifying patients and connected primary caregivers. As we have stated, the statute leaves much to be desired regarding the proper implementation of this grant of immunity. When addressing this question, we must consider (a) the evidentiary burden required to establish immunity and the presumption of medical use under § 4, (b) the elements required to establish immunity and the presumption of medical use, and (c) what evidence may properly rebut a presumption of medical use.

a. BURDEN OF PROOF

The MMMA is silent regarding the burden of proof necessary for a defendant to be entitled to immunity under § 4. When statutes are silent as to the burden of proof, " we are free to assign it as we see fit, as long as we do not transgress the constitutional requirement that we not place on the defendant the burden of persuasion to negate an element of the crime." [46]

[498 Mich. 216] Assigning the burden of proof involves two distinct legal concepts. The first, the burden of production, requires a party to produce some evidence of that party's propositions of fact.[47] The second, the burden of persuasion, requires a party to convince the trier of fact that those propositions of fact are true.[48] The prosecution has the burden of proving every element of a charged crime beyond a reasonable doubt.[49] This rule of law exists in part to ensure that " there is a presumption of innocence in favor of the accused . . . and its enforcement lies at the foundation of the administration of our criminal law." [50] To place the burden on a criminal defendant to negate a specific element of a crime would clearly run afoul of this axiomatic, elementary, and undoubted principle of law.[51]

A defendant invoking § 4 immunity, however, does so without regard to any presumption of innocence. The defendant does not dispute any element of the underlying charge when claiming immunity. Indeed, the defendant may even admit to otherwise unlawful conduct and yet still be entitled to § 4 immunity. When [498 Mich. 217] claiming § 4 immunity, the defendant places himself in an offensive position, affirmatively arguing entitlement to § 4 immunity without regard to his or her underlying guilt or innocence of the crime charged. In People v D'Angelo, we determined that the accusatorial nature of a defendant's request for a defense of entrapment, without regard to his or her guilt or innocence of the underlying criminal charge, required the burden of proof by a preponderance of the evidence to be

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allocated to the defendant.[52] The accusatorial nature of an entrapment defense and the offensive nature of immunity are similar because in both the defendant posits an affirmative argument, rather than defending a particular charge. We now follow this well-established rule of criminal procedure and assign to the defendant the burden of proving § 4 immunity by a preponderance of the evidence.

b. ELEMENTS REQUIRED TO ESTABLISH IMMUNITY

A defendant may claim entitlement to immunity for any or all charged offenses. Once a claim of immunity is made, the trial court must conduct an evidentiary hearing to factually determine whether, for each claim of immunity, the defendant has proved each element required for immunity. These elements consist of whether, at the time of the charged offense, the defendant:

(1) was issued and possessed a valid registry identification card,
(2) complied with the requisite volume limitations of § 4(a) and § 4(b),
(3) stored any marijuana plants in an enclosed, locked facility, and
[498 Mich. 218] (4) was engaged in the medical use of marijuana.[53]

The court must examine the first element of immunity--possession of a valid registry identification card--on a charge-by-charge basis. In most cases, satisfying the first element will be an all-or-nothing proposition. A qualifying patient or primary caregiver who does not have a valid registry identification card is not entitled to immunity because the first element required for immunity cannot be satisfied. Conversely, a qualifying patient or primary caregiver satisfies the first element of immunity if he or she possessed a valid registry identification card at all times relevant to the charged offenses. In some cases, there may be a gap between a qualifying patient's or a primary caregiver's earliest conduct underlying the charged offenses and his or her most recent conduct. A court must pay special attention to whether the effective date or expiration date of a registry identification card occurred within this gap and determine whether the conduct occurred when the patient or caregiver possessed a valid registry identification card. A qualifying patient or primary caregiver can only satisfy the first element of immunity for any charge if all conduct underlying that charge occurred during a time when the qualifying patient or primary caregiver possessed a valid registry identification card.

Generally, the second and third elements of immunity are also all-or-nothing propositions. The second element--the volume limitations of § 4(a) and § 4(b)--requires that the qualifying patient or primary caregiver be in possession of no more than a specified amount of usable marijuana and a specified number of marijuana plants. When a primary caregiver is connected [498 Mich. 219] with one or more qualifying patients, the amount of usable marijuana and the number of plants is calculated in the aggregate--2.5 ounces of usable marijuana and 12 marijuana plants for each qualifying patient, including the caregiver if he or she is also a registered qualifying patient acting as his or her own caregiver.[54] When a qualifying patient cultivates

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his or her own marijuana for medical use and is not connected with a caregiver, the patient is limited to 2.5 ounces of usable marijuana and 12 marijuana plants. A qualifying patient or primary caregiver in possession of more marijuana than allowed under § 4(a) and § 4(b) at the time of the charged offense cannot satisfy the second element of immunity.

The third element of § 4 immunity requires all marijuana plants possessed by a qualifying patient or primary caregiver to be kept in an enclosed, locked facility. Thus, a qualifying patient or primary caregiver whose marijuana plants are not kept in an enclosed, locked facility at the time of the charged offense cannot satisfy the third element and cannot receive immunity for the charged offense.

The fourth element conditions immunity on the " medical use" of marijuana, as defined in § 3(f). Unlike elements two and three, the fourth element does not depend on the defendant's aggregate conduct. Instead, this element depends on whether the conduct [498 Mich. 220] forming the basis of each particular criminal charge involved " the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." [55] Whether a qualifying patient or primary caregiver was engaged in the medical use of marijuana must be determined on a charge-by-charge basis.

While the qualifying patient or primary caregiver retains the burden of proving this fourth and last element of immunity, § 4(d) of the MMMA creates a rebuttable presumption of medical use when the qualifying patient or primary caregiver satisfies certain requirements.

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption [that one is engaged in the medical use of marihuana] may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.[56]

The requirements necessary to establish the presumption of medical use mirror the first two elements required to establish immunity. Therefore, a qualifying [498 Mich. 221] patient or primary caregiver is entitled to the presumption of medical use in § 4(d) simply by establishing the first two elements of § 4 immunity.[57]

In sum, a qualifying patient seeking to assert the protections of § 4 must

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prove four elements by a preponderance of the evidence. A qualifying patient must prove that, at the time of the charged offense, he or she (1) possessed a valid registry identification card; (2) possessed no more marijuana than allowed under § 4(a); (3) stored any marijuana plants in an enclosed, locked facility; and (4) was engaged in the medical use of marijuana. If the qualifying patient establishes the first and second elements, then a presumption exists that the qualifying patient was engaged in the medical use of marijuana, thereby establishing the fourth element.

Similarly, a primary caregiver seeking to assert the protections of § 4 must prove four elements by a preponderance of the evidence. A primary caregiver must prove that, at the time of the charged offense, he or she (1) possessed a valid registry identification card; (2) possessed no more marijuana than allowed under § 4(b); (3) stored any marijuana plants in an enclosed, locked facility; and (4) was assisting connected qualifying patients with the medical use of marijuana. If the primary caregiver establishes the first and second elements, then a presumption exists that the primary caregiver was engaged in the medical use of marijuana, thereby establishing the fourth element.

c. REBUTTING THE PRESUMPTION

The presumption of the medical use of marijuana is a powerful tool for a defendant in asserting § 4 immunity. But this presumption is rebuttable:

[498 Mich. 222] The presumption [that one is engaged in the medical use of marihuana] may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.[58]

According to § 4(d)(2), the presumption of the medical use of marijuana may be rebutted by examining " conduct related to marihuana . . . ." While the statute does not specifically state whose marijuana-related conduct may be used, when read in context it is clear that it refers to the defendant's conduct. Stated differently, in § 4(d), only the defendant's conduct may be considered to rebut the presumption of the medical use of marijuana. This interpretation is consistent with the purpose of § 4, which is to provide immunity from prosecution to a defendant who abides by certain restrictions.

For this reason, we hold that the prosecution may not rebut a primary caregiver's presumption of medical use by introducing evidence of conduct unrelated to the primary caregiver,[59] such as evidence that a connected qualifying patient does not actually have a debilitating medical condition or evidence that a connected qualifying patient used marijuana for nonmedical purposes. Similarly, the prosecution may not rebut a qualifying patient's presumption of medical use by introducing evidence that the connected primary caregiver used the qualifying patient's marijuana for nonmedical purposes.[60]

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[498 Mich. 223] We must also determine whether one or more transactions that are outside the scope of the MMMA may rebut the presumption of medical use for otherwise-compliant MMMA conduct. As noted § 4(d)(2) provides the prosecution with the ability to rebut this presumption.[61]

In Tuttle, the Court of Appeals held that a noncompliant marijuana transaction negates a defendant's ability to claim § 4 immunity as to the defendant's entire marijuana-related conduct. The court determined that " § 4 does not allow [a] defendant to decouple . . . illicit actions involving marijuana from . . . other[wise MMMA-compliant] marijuana-related activities . . . ." [62] The court concluded that illicit marijuana-related conduct rebuts the § 4(d) presumption of medical use for otherwise MMMA-compliant conduct.[63]

The prosecution agrees with the Court of Appeals, arguing that if a primary caregiver has provided marijuana to an unconnected individual, the presumption of medical use has been rebutted for all of the primary caregiver's marijuana-related conduct, including conduct [498 Mich. 224] that otherwise complies with § 4. Therefore, according to the prosecution, any unprotected marijuana-related conduct rebuts a defendant's presumption of medical use for all of the defendant's marijuana-related conduct, regardless of its relevance to the charged offense.

Tuttle argues that unprotected marijuana-related conduct may only rebut the presumption as to otherwise protected conduct if a nexus exists between the unprotected conduct and the protected conduct. In Tuttle, counts I-III relate to unprotected transfers of marijuana from Tuttle to an unconnected patient. Tuttle agrees that this conduct is not protected and that there is no § 4 immunity with regard to that conduct. Counts IV-VII, however, relate to the marijuana being manufactured in Tuttle's home. Tuttle argues that the conduct in counts I-III does not necessarily affect the conduct underlying counts IV-VII.

Tuttle specifically stresses that § 4(d)(2) provides that the presumption of medical use " may" be rebutted. Tuttle relies on the word " may" for the proposition that the trial court in its fact-finding capacity may either reject or accept evidence presented by the prosecution. Therefore, Tuttle claims, the trial court is not obligated to accept evidence of an unrelated and unprotected transaction to rebut the presumption of medical use for an otherwise protected transaction.

It is clear, as Tuttle concedes, that conduct violating the MMMA directly rebuts the presumption of medical use when a defendant's charges are based on that specific conduct (such as the illicit conduct on which counts I-III against Tuttle are based). It is not clear, however, that conduct violating the MMMA would also rebut the presumption of medical use related to other charges against the defendant when the illicit conduct [498 Mich. 225] does not form the

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basis of charges (such as the otherwise MMMA-compliant conduct on which counts IV-VII against Tuttle are based). While the statutory language is neither compelling nor expressly direct, we nonetheless conclude that the statutory text lends support for Tuttle's proposition.

Use of the permissive " may," in conjunction with the trial court's general gatekeeping responsibility to admit only relevant evidence,[64] leads us to conclude that to rebut the presumption of medical use the prosecution's rebuttal evidence must be relevant, such that the illicit conduct would allow the fact-finder to conclude that the otherwise MMMA-compliant conduct was not for the medical use of marijuana. In other words, the illicit conduct and the otherwise MMMA-compliant conduct must have a nexus to one another in order to rebut the § 4(d) presumption. This is consistent with the conclusions that the fourth element of immunity--medical use--is dependent only on the conduct forming the basis for each particular criminal charge and that immunity is claimed and generally proved on a charge-by-charge basis.

Further, Tuttle's view not only has statutory support, but also comports with how generally a presumption should be rebutted. Only relevant evidence that allows the fact-finder to conclude that the underlying conduct was not for " medical use" may rebut the § 4(d) presumption. A wholly unrelated transaction--i.e., a transaction with no nexus, and therefore no relevance, to the conduct resulting in the charged offense--does not assist the fact-finder in determining whether the defendant actually was engaged in the medical use of marijuana during the charged offense. Conduct unrelated [498 Mich. 226] to the charged offense is irrelevant and does not rebut the presumption of medical use.

Therefore, under § 4(d)(2), the prosecution may rebut the presumption of medical use for each claim of immunity. Improper conduct related to one charged offense may not be imputed to another charged offense unless the prosecution can establish a nexus between the improper conduct and the otherwise MMMA-compliant conduct. The trial court must ultimately determine whether a defendant has established by a preponderance of the evidence that he or she was engaged in the medical use of marijuana. The defendant may do so by establishing this powerful presumption of medical use. If the presumption of medical use has been rebutted, however, the defendant may still prove through other evidence that, with regard to the underlying conduct that resulted in the charged offense and for which the defendant claims immunity, the defendant was engaged in the medical use of marijuana, as defined in § 3(f).

C. SECTION 8 DEFENSE

Section 8(a) of the MMMA provides any patient or primary caregiver--regardless of registration with the state--with the ability to assert an affirmative defense to a marijuana-related offense. The affirmative defense " shall be presumed valid where the evidence shows" :

(1) A physician 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 physician-patient relationship, 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 [498 Mich. 227]

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debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;
(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; and
(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.[65]

In Kolanek, we determined that if a defendant establishes these elements and no question of fact exists regarding these elements, then the defendant is entitled to dismissal of the criminal charges.[66] We also clarified that if questions of fact exist, then " dismissal of the charges is not appropriate and the defense must be submitted to the jury." [67] Additionally, if a defendant has not presented prima facie evidence of each element of § 8 by " present[ing] evidence from which a reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense, . . . then the circuit court must deny the motion to dismiss the charges," and " the defendant is not permitted to present the § 8 defense to the jury." [68]

[498 Mich. 228] A defendant seeking to assert the MMMA's statutory affirmative defense must present prima facie evidence for each element of § 8(a).[69] Overcoming this initial hurdle of presenting prima facie evidence of each element is not an easy task. The elements of § 8 are clearly more onerous than the elements of § 4. The statutory scheme of the MMMA is designed to benefit those who properly register and are meticulous in their adherence to the law. Presumably, a properly registered defendant facing criminal charges would invoke immunity under § 4. However, a § 8 defense may be pursued by any defendant, regardless of registration status. With this background, we consider each element of the § 8 affirmative defense.

1. SECTION 8(A)(1): THE IMPRIMATUR OF THE PHYSICIAN-PATIENT RELATIONSHIP

Section 8(a)(1) requires a physician to determine the patient's suitability for the medical use of marijuana. It provides:

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment

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of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's [498 Mich. 229] serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition[.][70]
This provision may be reduced to three elements:
(1) The existence of a bona fide physician-patient relationship,
(2) in which the physician completes a full assessment of the patient's medical history and current medical condition, and
(3) from which results the physician's professional opinion that the patient has a debilitating medical condition and will likely benefit from the medical use of marijuana to treat the debilitating medical condition.

Each of these elements must be proved in order to establish the imprimatur of the physician-patient relationship required under § 8(a)(1) of the MMMA. Hartwick and Tuttle argue that the registry identification card establishes these three elements. We do not find merit in this position.

As part of the process for obtaining a registry identification card, an applicant must submit, among other materials, a " written certification." [71] At the time of the offenses at issue,[72] the MMMA defined a written certification as:

[A] document signed by a physician, stating the patient's debilitating medical condition and stating that, in the physician's professional opinion, the patient is likely [498 Mich. 230] to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition.[73]

Thus, at the time of the offenses at issue, a written certification was a document prepared by a physician that contained at least two representations: (1) the patient has a debilitating medical condition, and (2) the patient will likely benefit from the medical use of marijuana. Further, MCL 333.26426(c) provides that the department " shall verify the information contained in an application" and that the department " may deny an application . . . only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified."

Comparing the definition of " written certification" with the elements of § 8(a)(1), a registry identification card satisfies the third element (the patient has a debilitating medical condition and would likely benefit from the medical use of marijuana). A registry identification card, however, does not establish the second element (a physician has completed a full

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assessment of the patient's medical history and current medical condition).[74] The second element must be established through medical records or other evidence submitted to show that the physician actually completed a full assessment of the patient's medical history and current medical condition before concluding that the patient is likely to benefit from the medical use of marijuana and before the patient engages in the medical [498 Mich. 231] use of marijuana. Additionally, the physician certification leaves unsatisfied the first element of § 8(a)(1) (the existence of a bona fide physician-patient relationship).

At the time of the offenses at issue, the MMMA did not define " bona fide physician-patient relationship." [75] In Kolanek, we stated that " this term envisions 'a pre-existing and ongoing relationship with the patient as a treating physician.'" [76] Thus, to satisfy the first element--the existence of a bona fide physician-patient relationship--there must be proof of an actual and ongoing physician-patient relationship at the time the written certification was issued.[77]

[498 Mich. 232] A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary care

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giver is alleged to have unlawfully provided marijuana. In this context, a primary caregiver who provides marijuana to a putative patient plainly assumes the risk that the patient does not actually meet the elements of § 8(a)(1) or that the patient may not cooperate in a subsequent prosecution of the primary caregiver, regardless what that person may have otherwise told the primary caregiver.[78]

[498 Mich. 233] 2. SECTION 8(a)(2): THE QUANTITY OF MARIJUANA

Section 8(a)(2) requires a patient or primary caregiver to show:

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[.][79]

The critical phrase from the above quoted passage is " reasonably necessary to ensure uninterrupted availability of marihuana [for treatment] . . . ." Hartwick and Tuttle maintain that a registry identification card establishes a presumption that any amount of marijuana possessed by a defendant is a reasonable amount of marijuana under the MMMA. In the alternative, they argue that a valid registry identification card, coupled with compliance with the volume limitations in § 4, establishes a presumption that the amount of marijuana possessed is reasonable. Again, we do not find support for the defendants' position in the text of the MMMA.

The issuance of a registry identification card or compliance with the volume limitations in § 4 does not show that an individual possesses only a " reasonably necessary" amount of marijuana " to ensure uninterrupted availability" for the purposes of § 8(a)(2). A registry identification card simply qualifies a patient for the medical use of marijuana. It does not guarantee [498 Mich. 234] that an individual will always possess only the amount of marijuana allowed under the MMMA.

Further, nothing in the MMMA supports the notion that the quantity limits found in the immunity provision of § 4 should be judicially imposed on the affirmative defense provision of § 8. Sections 4 and 8 feature contrasting statutory language intended to serve two very different purposes.[80] Section 4 creates a specific volume limitation applicable to those seeking immunity. In contrast, § 8 leaves open the volume limitation to that which is " reasonably necessary." The MMMA could have specified a specific volume limitation in § 8, but it did not. In the absence of such an express limitation, we will

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not judicially assign to § 8 the volume limitation in § 4 to create a presumption of compliance with § 8(a)(2). Indeed, the only instance in which a primary caregiver must control a patient's dosage is when he or she is the parent of a minor patient.[81] That the statute requires these particular caregivers to control a patient's dosage, but does not require it of others, indicates that all other caregivers need not be particularly aware of their patients' medical needs. Instead, a primary caregiver may reasonably rely on the amount his or her patient states is needed to treat the patient's debilitating medical condition.

A patient seeking to assert a § 8 affirmative defense may have to testify about whether a specific amount of marijuana alleviated the debilitating medical condition and if not, what adjustments were made to the consumption rate and the amount of marijuana consumed to determine an appropriate quantity. Once the [498 Mich. 235] patient establishes the amount of usable marijuana needed to treat the patient's debilitating medical condition, determining whether the patient possessed " a quantity of marihuana that was not more than was reasonably necessary to ensure [its] uninterrupted availability" also depends on how the patient obtains marijuana and the reliability of this source. This would necessitate some examination of the patient/caregiver relationship.

The same analysis applies to primary caregivers seeking to present a defense under § 8. Primary caregivers must establish the amount of usable marijuana needed to treat their patients' debilitating medical conditions and then how many marijuana plants the primary caregiver needs to grow in order ensure " uninterrupted availability" for the caregiver's patients. This likely would include testimony regarding how much usable marijuana each patient required and how many marijuana plants and how much usable marijuana the primary caregiver needed in order to ensure each patient the " uninterrupted availability" of marijuana.

3. SECTION 8(a)(3): THE USE OF MARIJUANA FOR A MEDICAL PURPOSE

Section 8(a)(3) requires a patient or primary caregiver to show:

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.[82]

[498 Mich. 236] Although there is a purposeful distinction made between the amount of marijuana permitted under § 4 and the " reasonably necessary" restraint on quantity found in § 8(a)(2), § 8(a)(3) requires a patient and primary caregiver to show that any marijuana use complied with a very similar " medical use" requirement found in § 4, and defined in § 3:

" Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.[83]

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The slight variance between the definition of " medical use" in § 4 and medical use as it appears in § 8 can be attributed to the fact that only registered qualifying patients and registered primary caregivers may engage in the " medical use" of marijuana, as indicated by use of the term in § 4.[84] Those patients and primary caregivers who are not registered may still be entitled to § 8 protections if they can show that their use of marijuana was for a medical purpose--to treat or alleviate a serious or debilitating medical condition or its symptoms. Hartwick and Tuttle again argue that a registry identification card alone, or a registry identification card coupled with compliance with either the volume limitations of § 4(a) and (4)(b) or § 8(a)(2), satisfies § 8(a)(3). Once again, defendants seek to attribute greater significance to the registry identification [498 Mich. 237] card than that which is expressly provided in the MMMA. We simply do not find support for the defendants' arguments in the text of the MMMA.

A registry identification card merely qualifies a patient for the medical use of marijuana. It does not establish that at the time of the charged offense, the defendant was actually engaged in the protected use of marijuana. Section 8(a)(3) requires that both the patient's and the primary caregiver's use of marijuana be for a medical purpose, and that their conduct be described by the language in § 8(a)(3). Thus, patients must present prima facie evidence regarding their use of marijuana for a medical purpose regardless whether they possess a registry identification card. Primary caregivers would also have to present prima facie evidence of their own use of marijuana for a medical purpose and any patients' use of marijuana for a medical purpose.

III. APPLICATION TO HARTWICK AND TUTTLE

A. PEOPLE V HARTWICK

1. SECTION 4 IMMUNITY

Hartwick is a registered qualifying patient, his own caregiver, and at all times pertinent to this dispute, a primary caregiver to five registered qualifying patients. The prosecuting attorney charged Hartwick with manufacturing marijuana and possession of marijuana with the intent to deliver. Hartwick sought to invoke § 4 immunity. In order to qualify for § 4 immunity, Hartwick must prove by a preponderance of the evidence that for each charged offense he

(1) possessed a valid registry identification card for himself as a qualifying patient and for each of the five other connected registered qualifying patients,
[498 Mich. 238] (2) possessed no more than 72 marijuana plants and 15 ounces of usable marijuana,[85]
(3) kept the marijuana plants in an enclosed, locked facility, and
(4) was engaged in the medical use of marijuana.

Hartwick is entitled to a presumption of the medical use of marijuana if he shows by a preponderance of the evidence that he possessed:

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(1) a valid registry identification card for himself as a patient and for each of the five other registered qualifying patients to whom he is connected under the MMMA, and
(2) no more than 72 marijuana plants and 15 ounces of usable marijuana.

The prosecution may then rebut this presumption in accordance with § 4(d)(2).

The lower courts erred with respect to Hartwick's entitlement to immunity under § 4. There is no statutory requirement under § 4 that Hartwick know the debilitating conditions of, the amount of marijuana needed for, the length of time treatment should continue for, or the identities of the physicians of, the registered qualifying patients to whom Hartwick is connected under the MMMA. This lack of information cannot be used to rebut Hartwick's presumption of the medical use of marijuana under § 4(d). For purposes of § 4, the lower courts should have instead focused on Hartwick's conduct.

[498 Mich. 239] The Court of Appeals also should not have determined that the number of marijuana plants Hartwick possessed was " moot." [86] The trial court never made a factual determination of the number of marijuana plants in Hartwick's possession or the other elements of § 4. Even if such facts had been established, the Court of Appeals reviews the trial court's factual findings for clear error. Thus, a new § 4 evidentiary hearing conforming to the holdings expressed in this opinion is necessary to determine Hartwick's entitlement to § 4 immunity.

2. SECTION 8 DEFENSE

In contrast to Hartwick's claim of immunity under § 4, the lower courts correctly concluded that Hartwick was not entitled to the § 8 affirmative defense. Even though Hartwick provided testimony of his own medical condition and evidence of registry identification cards for himself and five patients, he did not present prima facie evidence for each element of § 8(a). Specifically, Hartwick failed to provide any evidence of § 8(a)(1) (bona fide physician-patient relationship), § 8(a)(2) (amount of marijuana the patients needed), or § 8(a)(3) (whether the patients engaged in the use of marijuana for a medical purpose).

Further, to the extent the Court of Appeals determined that a written certification was comparable to a pharmaceutical prescription, this determination was erroneous. A written certification is not similar to that of a pharmaceutical prescription. Marijuana is a Schedule 1 controlled substance.[87] Therefore, a doctor is not legally able to prescribe marijuana to an individual [498 Mich. 240] for any reason. A written certification is a statutorily mandated document that must meet specific statutory requirements so that an individual may successfully apply for a registry identification card. While the MMMA states that " [m]odern medical research . . . has discovered beneficial uses for marihuana in treating . . . debilitating medical conditions," [88] the terminology employed in the MMMA and the actual function of primary caregivers and patients is not comparable to how a medical doctor's treatment of an actual patient. Primary caregivers carry out a statutorily created task that is completely unrelated to how a doctor would treat a patient.

B. PEOPLE V TUTTLE

1. SECTION 4 IMMUNITY

Tuttle is a registered qualifying patient, his own caregiver, and a primary caregiver

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to at least one registered qualifying patient. The prosecuting attorney charged Tuttle with multiple counts of manufacturing, possessing, and delivering marijuana. Tuttle sought to have counts IV-VII, which relate to the manufacture and possession of marijuana in Tuttle's home, dismissed under the immunity provisions of § 4.

In order to qualify for immunity under § 4, Tuttle must prove by a preponderance of the evidence that for each charged offense he:

(1) possessed a valid registry identification card for himself as a qualifying patient and for each connected registered qualifying patient,
[498 Mich. 241] (2) possessed no more than the volume of marijuana permitted by § 4(a) and § 4(b),[89]
(3) kept the marijuana plants in an enclosed, locked facility, and
(4) was engaged in the medical use of marijuana.

Tuttle is entitled to a presumption that he was engaged in the medical use of marijuana if he shows by a preponderance of the evidence that he possessed:

(1) a valid registry identification card for himself as a patient and for each connected registered qualifying patient, and
(2) no more than the volume of marijuana allowed by § 4(a) and § 4(b).

The prosecution may then rebut this presumption in accordance with § 4(d)(2).

The lower courts erred when they concluded that Tuttle's provision of marijuana to Lalonde necessarily tainted all of Tuttle's marijuana-related activity thereby negating his ability to claim § 4 immunity for each charged offense. Providing marijuana to Lalonde did not per se taint all of Tuttle's marijuana-related conduct. Tuttle was not connected to Lalonde under the MMMA. Therefore, Tuttle was clearly outside the parameters of § 4 when he provided marijuana to Lalonde (counts I-III).

Tuttle, however, may still be entitled to immunity [498 Mich. 242] for the remaining charges in counts IV-VII. With regard to the charges of possessing and manufacturing marijuana in his home, the trial court must make factual determinations regarding the number of patients connected to Tuttle under the MMMA, the number of marijuana plants Tuttle had in his home and the amount of usable marijuana Tuttle possessed,[90] whether the marijuana plants were stored in an enclosed, locked facility, and whether Tuttle was engaged in the medical use of marijuana.

Tuttle must prove entitlement to immunity for each charged offense. And the prosecution may only use evidence of conduct relating to one charged offense to rebut the presumption of medical use for another charged offense if a nexus exists between the charged offenses. Put simply, improper conduct related to Lalonde in counts I-III may only affect counts IV-VII if the prosecution can establish a nexus between the improper conduct in counts

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I-III and the otherwise MMMA-compliant conduct in counts IV-VII. Only if this nexus exists can the trial court determine that the illicit conduct in counts I-III rebuts the presumption that Tuttle was engaged in the medical use of marijuana for the conduct underlying counts IV-VII.

The trial court must ultimately weigh the evidence to determine if the prosecution successfully rebutted Tuttle's presumption of medical use for counts IV-VII by evidence of the conduct relating to marijuana in counts I-III and, if so, whether Tuttle has otherwise shown that the charged conduct for which he claims immunity was consistent with the medical use of marijuana. The flexibility allowing the trial court to make this decision in § 4(d) permits the trial court to [498 Mich. 243] hear evidence to determine if Tuttle truly was a primary caregiver simply trying to assist patients, or if Tuttle acted outside the protection of the MMMA.[91]

To that end, factual findings are needed to determine Tuttle's entitlement to immunity under § 4 for counts IV-VII. As a result, a new § 4 evidentiary hearing conforming to the holdings expressed in this opinion is necessary to determine Tuttle's entitlement to § 4 immunity.

2. SECTION 8 DEFENSE

The lower courts properly concluded that Tuttle was not entitled to the § 8 affirmative defense. During an evidentiary hearing, Tuttle presented his registry identification card and the registry identification cards belonging to Michael Batke and Frank Colon. Lalonde, Batke, and Colon also testified at the hearing.

Lalonde testified that he first came into contact with Tuttle through an unofficial internet site intended to match medical marijuana patients and caregivers. He also testified that he was a registered qualifying patient and that he told Tuttle he was using marijuana to alleviate pain. Lalonde's testimony, however, did not meet the first and third element of § 8(a), requiring his condition to be diagnosed in the course of a bona fide physician-patient relationship through which the physician found the condition suitable for the medical use of marijuana. Lalonde did not testify about how much [498 Mich. 244] marijuana he needed to treat his debilitating condition under § 8(a)(2) or if he engaged in the use of marijuana under § 8(a)(3) to treat his debilitating condition.

Batke testified that he was a registered qualifying patient and that Tuttle was connected to him as a registered caregiver. Batke also testified that he would call Tuttle every time he needed marijuana. As a result, Tuttle provided Batke with approximately two ounces of marijuana a month. This does not speak to the amount of marijuana Batke reasonably needed in order to treat his debilitating condition, only to the amount of marijuana actually provided. Nor did Batke establish that he had a bona fide relationship with a physician. Lastly, Colon testified that he was a registered qualifying patient, that he had a medical condition, and that he utilized Tuttle as a caregiver. Colon stated he would request between one and two ounces of marijuana each week from Tuttle. Colon did not testify that he received a full medical assessment in the course of a bona fide physician-patient relationship.

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Lalonde's, Batke's, and Colon's testimony was deficient in establishing at least one element of § 8(a). Additionally, the patients' testimony combined with their registry identification cards did not establish prima facie evidence under § 8(a). Therefore, Tuttle failed to present prima facie evidence of each element of § 8(a). The Court of Appeals correctly affirmed the trial court's denial of Tuttle's motion to dismiss under § 8 and correctly denied his request to present a § 8 defense at trial.

IV. CONCLUSION

In People v Hartwick, Docket No. 148444, we conclude that (1) the trial court must hold a new evidentiary hearing to determine Hartwick's entitlement to [498 Mich. 245] immunity under § 4, and (2) Hartwick is not entitled to an affirmative defense under § 8. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand to the trial court for proceedings not inconsistent with this opinion.

In People v Tuttle, Docket No. 148971, we conclude that (1) the trial court must hold a new evidentiary hearing to determine Tuttle's entitlement to immunity under § 4, and (2) Tuttle is not entitled to an affirmative defense under § 8. Accordingly, we affirm the judgment of the Court of Appeals in part, reverse in part, and remand to the trial court for proceedings not inconsistent with this opinion.

Brian K. Zahra Robert P. Young, Jr. Stephen J. Markman Mary Beth Kelly Bridget M. McCormack David F. Viviano Richard H. Bernstein


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