People v. Reddenpeople v. Clark.

• Decision Date: 14 September 2010
• Docket Number: Docket Nos. 295809,295810.
• Parties: PEOPLEv.REDDENPeoplev.Clark.
• Court: Court of Appeal of Michigan — District of US

290 Mich.App. 65

799 N.W.2d 184

PEOPLE

v.REDDENPeople

v.Clark.

Docket Nos. 295809

295810.

Court of Appeals of Michigan.

Submitted July 7, 2010, at Detroit.Decided Sept. 14, 2010, at 9:20 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, John S. Pallas, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.Robert Mullen and Associates, PLLC (by Robert S. Mullen), for defendants.Dykema Gossett PLLC (by Shaun M. Johnson, Lansing, and Nadav Ariel, Ann Arbor), Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss, Detroit, for the American Civil Liberties Union Fund of Michigan.Before: O'CONNELL, P.J., and METER and OWENS, JJ.

Opinion of the Court

METER, J.

In this case involving the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. , defendant Robert Lee Redden and defendant Torey Alison Clark appeal by leave granted a December 10, 2009, circuit court order reversing for each defendant the district court's dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants, MCL 333.7401(2)(d)( ii ). We affirm the circuit court's decision to reinstate the charges.

I. FACTS

This case arose from the execution of a search warrant at defendants' residence in Madison Heights, which resulted in the discovery of approximately 1 1/2 ounces of marijuana and 21 marijuana plants. Officer Kirk Walker and Officer Mark Moine of the Madison Heights Police Department testified that in the evening of March 30, 2009, they arrived at the residence with three other officers to execute a search warrant for the purpose of looking for marijuana and other illegal substances.

Defendants and another unidentified individual were found in the residence and were secured by the officers. The officers found proof of residency for defendants and $531 in cash. The officers also found three bags of marijuana in a bedroom. In addition, they found 21 marijuana plants, which were all between three and four inches tall, on the floor of a closet in the same bedroom. Field tests of these items were positive for marijuana. The officers did not find any scales, small plastic bags, or packaging materials in the residence.

At some point during the search, Redden stated that he was in pain. Defendants also each turned over documents regarding their use of marijuana for medical purposes. The documents, which were dated March 3, 2009, for Redden, and March 4, 2009, for Clark, were admitted into evidence. Each document stated:

I, Eric Eisenbud, MD, am a physician, duly licensed in the State of Michigan. I have completed a full assessment of this patient's medical history, and I am treating this patient for a terminal illness or a debilitating condition as defined in Michigan's medical marijuana law. I completed a full assessment of this patient's current medical condition. This assessment was made in the course of a bona fide physician-patient relationship. I have advised the patient about the potential risks and benefits of the medical use of marijuana. I have formed my professional opinion that the potential benefits of the medical use of marijuana would likely outweigh any health risks for the patient. This patient is LIKELY to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate a serious or debilitating medical condition or symptoms of the serious or debilitating medical condition.

The MMMA went into effect on December 4, 2008, but, according to Walker, the state of Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan Department of Community Health issued medical-marijuana registry identification cards to each defendant on April 20, 2009, but this was after the search in this case took place.

In the course of the preliminary examination, defendants asserted the affirmative defense contained in § 8 of the MMMA, MCL 333.26428.¹ In support of the defense, defendants presented testimony from Eric Eisenbud, M.D., who testified that he had attended the University of Colorado's medical school and had been a physician for 37 years. He was licensed to practice in seven states, including Michigan, and was board-certified in ophthalmology. Dr. Eisenbud also had worked in the past as an emergency room practitioner and a family practitioner. At the time of the preliminary examination, Dr. Eisenbud had worked for the past 19 months for The Hemp and Cannabis Foundation (THCF) Medical Clinic. He testified that he is “ not from Michigan” and was currently working in six out of the seven states in which he was licensed to practice medicine, although he later suggested that he was working in all seven states.²

Dr. Eisenbud testified that defendants were his patients and that he examined each of them on March 3, 2009, when both were seeking to be permitted to use marijuana under the MMMA. A clinic technician screened defendants before their appointment in a telephone interview and by reviewing their medical records. Dr. Eisenbud met with each defendant for about a half-hour, spending 5 minutes reviewing the medical records and about 10 minutes on the physical examination; he also interviewed them. During their 10–minute physical examinations, Dr. Eisenbud examined both defendants' general appearance and skin, listened to their lungs, examined their abdomens, examined their heads and necks, did a neurological and cardiovascular assessment, and assessed their mental health.

Dr. Eisenbud testified that he signed the authorization for each defendant in his professional capacity because each qualified under the MMMA and each would benefit medically from using marijuana. He opined that his relationship with each defendant was a bona fide physician-patient relationship because he interviewed defendants, examined them, and looked at their medical records in order to gain a full understanding of their medical problems. Dr. Eisenbud acknowledged that the THCF Medical Clinic did not require patients to bring their complete medical records. The records from Redden were from two years before his examination by Dr. Eisenbud, and Clark's records were from a year before her examination by Dr. Eisenbud.

Regarding Redden, Dr. Eisenbud concluded that he had a debilitating condition that caused pain, satisfying the MMMA's requirements. Regarding Clark, Dr. Eisenbud concluded from her medical records and interviewing her that she suffered from nausea. Dr. Eisenbud did not testify regarding what caused Redden's pain or Clark's nausea. Dr. Eisenbud only examined each defendant once. He viewed the only risk of defendants' using marijuana as related to driving; he indicated that they should not drive within four hours of using it.

Dr. Eisenbud testified that defendants had not consulted with any other doctors regarding medical-marijuana authorization before their appointments with him. According to Dr. Eisenbud, both defendants were using other narcotics for their conditions, and he opined that access to marijuana would give them the opportunity to wean themselves off of those narcotics.

The parties stipulated that Redden had two previous convictions for possession of marijuana with intent to distribute.

During the preliminary examination, the prosecution argued that defendants were not entitled to assert the affirmative defense from § 8 of the MMMA because neither had a registry identification card at the time of the offense as required by § 4(a) of the MMMA, MCL 333.26424(a).³ The prosecution acknowledged that defendants could not have obtained a card previously because the state had yet to begin issuing them. However, the prosecution contended that defendants were required to abstain from marijuana use until they were able to obtain a card. Defendants argued that the plain language of § 8 of the MMMA did not require possession of a card.

The prosecution argued that under the probable-cause standard, the evidence showed that defendants were engaged in manufacturing marijuana. The prosecution contended that defendants had failed to comply with § 8 of the MMMA because they had not shown a bona fide patient-physician relationship with Dr. Eisenbud and also had failed to establish that they possessed an amount of marijuana that was not more than was reasonably necessary to ensure uninterrupted availability for the purpose of treating their conditions. Defendants argued that they met the requirements of § 8 because each had a signed authorization from a licensed physician with whom he or she had a bona fide physician-patient relationship and who concluded that each had conditions covered under the MMMA. Defendants also argued that the amount of marijuana was reasonably necessary.

II. LOWER–COURT RULINGS

The district court noted that the MMMA “is probably one of the worst pieces of legislation I've ever seen in my life” and went on to state:

[S]ection 8 says section 4 doesn't really have any meaning. If you don't have a card and you happen to be arrested, just make sure you have a doctor who will testify in court that you needed medical marijuana in order to have that case dismissed.

The burden's on defendant at the evidentiary hearing to have section 8 apply to show what a reasonable amount of marijuana is. It doesn't say what a reasonable amount is. It would seem practical to me that they would have included the same amount that was in section 4 if they believed that was a reasonable amount. But, instead, they just leave it to, I guess, every other judge's decision as to what they think is reasonable.

It—it's just one of the worst pieces of legislation I've ever seen.... [I]t appears that section 8, the intent of it is to allow anyone who possesses marijuana with a doctor's certification, I guess at the time of a hearing, that the case would have to be dismissed. Because it very clearly says in section [8]b that the charges shall be dismissed...