COA further limits medical-marijuana defense

A man who was growing marijuana before he obtained a doctor’s certification or a registry identification card under the Michigan Medical Marijuana Act cannot invoke the act’s affirmative defense, even though he was arrested after he obtained both the certification and registry card.

Brian Reed’s marijuana plants were spotted from a police aircraft. At the time, Reed lacked both the physician’s authorization and registry identification card. The card is a prerequisite to invoking the MMMA’s affirmative defense to avoid prosecution for certain marijuana offenses.

By the time Reed was arrested for manufacturing marijuana, he had all of the MMMA’s required documentation. He moved for dismissal, invoking the act’s affirmative defense. He appealed when the trial court denied his motion.

On appeal, Reed relied upon People v. Kolanek. Kolanek hadn’t obtained the act’s required documentation until after his arrest for possession of marijuana. In refusing to dismiss marijuana charges against Kolanek, the Michigan Court of Appeals ruled that “the relevant deadline for obtaining the physician’s statement required to establish the affirmative defense in MCL 333.26428 was the time of a defendant’s arrest.”

Reed argued his documentation was in place before he was arrested, so dismissal was required under Kolanek.

The Court of Appeals ruled against Reed and further limited the MMMA’s affirmative defense:

We now extend [Kolanek] and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense.

We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The case is People v. Reed.