People v. Reed

294 Mich.App. 78

819 N.W.2d 3

PEOPLE

v.REED.

Docket No. 296686.

Court of Appeals of Michigan.

Submitted May 12, 2011, at Lansing.

Decided Aug. 30, 2011, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Terrie J. Case, Prosecuting Attorney, and Melissa M. Goodrich, Assistant Prosecuting Attorney, for the people.

Bolser and Kundinger, PLC, Atlant (by Benjamin T. Bolser), for defendant.

Before: OWENS, P.J., and O'CONNELL and METER, JJ.

METER, J.

Defendant appeals by leave granted the denial of his motion to dismiss a charge of manufacturingless than 5 kilograms or less than 20 plants of marijuana,¹MCL 333.7401(2)(d)( iii ). We affirm.

This case requires us, to consider in part, the applicability of the affirmative-defense portion of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. See MCL 333.26428(a). Defendant's marijuana plants were discovered by the police before he received physician authorization to possess them, but he was not arrested until after he had obtained the physician authorization, as well as a registry identification card from the Michigan Department of Community Health (MDCH). See MCL 333.26424. We held in People v. Kolanek, 291 Mich.App. 227, 235–236, 804 N.W.2d 870 (2011), that a physician's statement must be obtained before the defendant's arrest in order to establish the affirmative defense set forth in § 8 of the MMMA, MCL 333.26428. We now extend that ruling and hold that, the physician's statement must also occur before the commission of the purported offense in order to establish the affirmative defense. We further hold that defendant has no immunity from prosecution under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The facts in this case are undisputed. Defendant suffers from chronic back pain due to a degenerative disk disease for which he underwent surgery more than a decade ago. After the enactment of the MMMA, defendant began to inquire about the possibility of becoming registered to use marijuana to help relieve his pain. He began at Thunder Bay Community Health Service, the clinic that he generally attended for treatment of his condition. However, two separate doctors there told him that they would not be issuing certifications for medical use of marijuana because they received federal funding. Defendant then searched for another place to receive certification but had not formally consulted with another doctor before his marijuana was discovered.

On August 25, 2009, the Huron Undercover Narcotics Team (HUNT), during an aerial surveillance, spotted six marijuana plants growing at defendant's residence. At that time, defendant had not received a physician's statement certifying his marijuana use for a medical purpose. See MCL 333.26428(a)(1). On September 16, 2009, defendant received a doctor's certification to use marijuana medically, and he received his registry certification card from MDCH on October 6, 2009. Ten days later, on October 16, he was arrested and charged with the manufacture of marijuana.

Defendant filed a motion to dismiss the charge under MCL 333.26428(b), arguing that the trial court was obligated to dismiss the case because defendant satisfied all three elements of the affirmative defense. Additionally, defendant argued that he should have been immune from arrest under MCL 333.26424(a). The trial court denied the motion and we granted defendant's application for leave to appeal.

This case involves statutory interpretation, which we review de novo. People v. Redden, 290 Mich.App. 65, 76, 799 N.W.2d 184 (2010). “Generally, the primary objective in construing a statute is to ascertain and give effect to the Legislature's intent.” Id. The MMMA was enacted by an initiative adopted by the voters. “The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Welch Foods, Inc. v. Attorney General, 213 Mich.App. 459, 461, 540 N.W.2d 693 (1995). Moreover, “[t]his Court must avoid a construction that would render any part of a statute surplusage or nugatory, and ‘[w]e must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme.’ ” Redden, 290 Mich.App. at 76–77, 799 N.W.2d 184, quoting People v. Williams, 268 Mich.App. 416, 425, 707 N.W.2d 624 (2005).

Defendant first argues that he may use MCL 333.26428(a) as an affirmative defense to the charge of manufacturing marijuana. MCL 333.26428(a) states:

Except as provided in [MCL 333.26427], a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

(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 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.²

Defendant argues that under our recent decision in Kolanek, he could satisfy the requirement that “[a] physician has stated that ... the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana,” see MCL 333.26428(a)(1) by obtaining this statement at any time before arrest. (Emphasis added.)

In Kolanek, 291 Mich.App. at 229, 804 N.W.2d 870, the defendant was arrested after a search of his vehicle revealed eight marijuana cigarettes. He filed a motion to dismiss under MCL 333.26428(b), claiming the § 8 affirmative defense because he used the marijuana to treat the pain associated with his Lyme disease. Id. at 231–232, 804 N.W.2d 870. The defendant's doctor had authorized the defendant's marijuana use after his arrest and testified at trial that the amount the defendant had in his possession was reasonable. Id., at 230, 804 N.W.2d 870. In affirming the trial court's denial of the defendant's motion to dismiss, this Court held that “the language in MCL 333.26428(a)(1), ‘[a] physician has stated,’ requires that a physician's statement of the medical benefit of marijuana be made prior to arrest.” Id. at 230, 804 N.W.2d 870. Defendant argues that this language validates, for purposes of the § 8 affirmative defense, his doctor's approval, which occurred on September 16, 2009, one month before his arrest. We disagree.

In Kolanek, the defendant was charged the day after his marijuana was seized. Id. at 229, 804 N.W.2d 870. It appears that the seizure and the arrest were simultaneous; indeed, the Kolanek Court gave no indication that it was considering a situation in which the crime and arrest were not contemporaneous. Accordingly, we cannot place substantial emphasis on the Kolanek Court's use of the term “arrest” in describing its holding. Moreover, the Kolanek Court stated: “[I]t is reasonable to assume that the affirmative defense created in § 8 was intended to protect those who actually had a medical basis for marijuana use recognized by a physician before the use began and was not intended to afford defendants an after-the-fact exemption for otherwise illegal activities.” Id. at 238, 804 N.W.2d 870. (emphasis added). The Court, in making this statement, was clearly focusing on a defendant's purportedly illegal conduct, not on the defendant's arrest. We note that statutes should be construed so as to avoid absurd results. McAuley v. Gen. Motors Corp., 457 Mich. 513, 518, 578 N.W.2d 282 (1998), abrogated in part on other grounds by Rafferty v. Markovitz, 461 Mich. 265, 273 n. 6, 602 N.W.2d 367 (1999). It would be absurd if it were possible to assert the § 8 affirmative defense by obtaining a physician's statement after the crime had been committed but before an arrest has been made. ³ The law would provide less incentive to obtain a qualifying physician's statement if it were construed in the manner defendant suggests. This interpretation would also place too much emphasis on the police decision to arrest a suspect rather than the illegal conduct undertaken by that suspect.

The Oregon Court of Appeals, interpreting that state's affirmative defense contained in Or Rev Stat. 475.319(1), agrees. That court stated: “[W]e conclude that, in order for defendant to have availed himself of the ‘medical marijuana’ affirmative defense in [Or Rev Stat] 475.319(1), his attending physician's advice regarding the use of medical marijuana had to occur before the incident for which he was arrested.” Oregon v. Root, 202 Or.App. 491, 497, 123 P.3d 281, 284 (2005) (emphasis added). We note that Kolanek also relied on Root. See Kolanek, 291 Mich.App. at 238, 804 N.W.2d 870.

In light of these considerations, we hold that for a § 8 affirmative defense to apply, the physician's statement must occur before the purportedly illegal conduct.

Generally, a defendant is not barred from...