High court sets test for medical marijuana prosecution

Chad Livengood
Detroit News Lansing Bureau

Lansing — The Michigan Supreme Court on Monday sent the cases of two Oakland County men back to circuit court to decide whether they are immune from prosecution under the state’s medical marijuana law.

In a unanimous decision written by Justice Brian Zahra, the state’s highest court ruled that judges should follow a four-part test before trial to decide whether medical marijuana defendants are immune from prosecution of abusing the state’s medical marijuana law. Voters approved the law at the ballot in 2008.

Oakland County Circuit Court will need to decide whether Robert Hartwick and Robert Tuttle complied with the law.

Defendants must show by a preponderance of evidence that they are entitled to immunity from prosecution for every charge, Zahra wrote. The four-part test requires:

■ The defendant has a valid registry identification card.

■ The defendant complied with state limits on the limited volume of medical marijuana.

■ Any marijuana plants were kept in an enclosed, locked facility.

■ The defendant was participating in the medical use of marijuana.

The seven justices said lower courts mistakenly denied immunity from prosecution for Hartwick, a registered medical marijuana patient who also cared for five other registered patients, by not making factual decisions, such as how many marijuana plants he possessed.

The police charged Hartwick with manufacturing marijuana and possessing it with the intent to deliver after a search of his home revealed a disputed number of marijuana plants and about 3.69 ounces of marijuana.

“In addition, the trial court and the Court of Appeals erred by concluding that Hartwick should have known his registered qualifying patients’ debilitating conditions, the amount of marijuana they needed, and the identities of their physicians,” Zahra wrote, adding that the law doesn’t require these conditions.

The Michigan Supreme Court also ordered a re-evaluation in the case of Tuttle, a registered patient whose status as primary caregiver to other patients was unclear. He was charged 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.

The high court said the Court of Appeals erred in deciding that Tuttle wasn’t immune from prosecution because he couldn’t prove he could give marijuana for medical use to another patient and this tainted his other defenses.

“The defendant’s burden of proving entitlement to immunity is separate and distinct for each charged offense,” Zahra ruled in his opinion.

Zahra also used the ruling to offer a critique of the 2008 voter-approved law, which got on the ballot through a citizens’ initiative that bypassed the Legislature.

The high court has wrestled with nine different cases in the seven years since Michigan voters legalized marijuana for medicinal purposes, Zahra said. The cases often involved conflicts in state law over the narcotic, possession of which remains illegal for recreational use.

“The many inconsistencies in the 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,” Zahra wrote for the court.

Efforts to amend the law to clarify the legal defense of using cannabis for medical purposes and regulating marijuana dispensaries have remained stalled in the Legislature.

clivengood@detroitnews.com

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