Michigan Supreme Court Evaluates Medical Marijuana Affirmative Defense

Recently the Michigan Supreme Court granted leave to look at a three different cases involving a number of substantive and procedural aspects of the Michigan marijuana act, including the affirmative defense that an individual’s use and possession of marijuana is allowed because of a medical reason.

In Michigan v. King, police officers received an anonymous tip that an Owosso, Michigan man was growing marijuana in his backyard. When police went to the home, the owner showed the police officers his “registry identification card” for medical use of marijuana. After police searched his home, they located several plants growing that were not inside an “enclosed, locked facility.” The man was subsequently charged with marijuana manufacturing.

He asserted the affirmative defense of “medical necessity.” The lower court agreed that King was entitled to this defense because he had fewer than 12 plants and had a valid registry identification card, as well as a valid physician’s statement that he was entitled to the “use and possession of marijuana to treat a serious medical condition.” However, the Court of Appeals’ reversed, finding that King couldn’t’ use the affirmative defense provided by the MMMA because he did not keep the plants in an “enclosed, locked facility.”

Similarly, in People v. Kolanek, a Michigan man – Alexander Kolanek – was arrested for possession of marijuana. He did not have his registry identification at the time of the arrest. Six days later he requested his doctor authorize his medical use of marijuana to treat chronic severe pain caused by Lyme disease. His physician approved the use, and Kolanek applied for a registry identification card, which he was issued two weeks later. Kolanek asserted the affirmative defense of the MMMA, however, his use of this defense was challenged because he received his doctor’s permission after the arrest.

The Supreme Court noted that the MMMA does not create a general right for individuals to use and possess marijuana, but it does protect and allow for individuals to use marijuana where they are suffering from debilitating medical conditions or symptoms as long as the marijuana use “is carried out in accordance with the provisions of the [MMMA].”

These cases present the issue of when people arrested for marijuana possession may be protected by the MMMA. The Supreme Court determined that any defendant, regardless of registration status, who possesses more tan 2.5 ounces of usable marijuana or 12 plants not kept in an enclosed, locked facility may satisfy the affirmative defense requirements. Further, those defendants may also be entitled to the dismissal of criminal charges as long as the person arrested is not using marijuana in the following circumstances:

(1) Undertake any task under the influence of marihuana, when doing so would constitute negligence or professional malpractice.

(2) Possess marihuana, or otherwise engage in the medical use of marihuana:
(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.
(3) Smoke marihuana:
(A) on any form of public transportation; or
(B) in any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.
(5) Use marihuana if that person does not have a serious or debilitating medical condition.


However, in order to use the defense of medical need the physician’s statement providing for marijuana usage must be made before an offense is committed.

For more information about the medical marijuana act and its use as a defense to marijuana possession charges, contact the top Michigan drug attorneys at Grabel & Associates for an immediate consultation.