III. THROUGH THE MAZE

The MMMA consists of ten sections detailing the protections, procedures, and defenses surrounding the use of medical marijuana in this state. However, much of the confusion caused by the MMMA arises from difficulty understanding the interplay between sections 4, 7, and 8. Section 4 addresses the protections afforded to qualifying patients, caregivers, and others under the act:

(a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that [*53] does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.

(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

(2) for each registered qualifying patient who has specified [*54] that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable roots.

(c) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.

(d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.

(e) A registered primary caregiver may receive compensation for costs associated with assisting [*55] a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.

(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise [*56] violating the standard of care for evaluating medical conditions.

(g) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marihuana paraphernalia for purposes of a qualifying patient's medical use of marihuana.

(h) Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.

(i) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

(j) A registry identification [*57] card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marihuana by a visiting qualifying patient, or to allow a person to assist with a visiting qualifying patient's medical use of marihuana, shall have the same force and effect as a registry identification card issued by the department.

(k) Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $ 2,000.00, or both, in addition to any other penalties for the distribution of marihuana. [MCL 333.26424.]

The unusual structure of this section reflects the intent of the MMMA as set forth in MCL 333.26422(b). Instead of describing an affirmative right to grow, possess, or use marijuana, § 4 simply indicates that registered qualifying patients, primary caregivers, and physicians are protected from arrest, prosecution, or penalty if they meet [*58] the specific requirements set forth. 11

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11 Most legislation either grants rights and privileges to citizens by stating that a person may do a certain activity, or it makes certain activity illegal. In either circumstance, the statute affirmatively indicates what an individual may or may not do. The MMMA does the opposite; instead of granting a right or implementing a prohibition, the statute leaves the underlying prohibition of the manufacture, possession, or use of marijuana intact and states that individuals meeting certain criteria "shall not be subject to arrest, prosecution, or penalty . . ." for using, possessing, or growing marijuana under specified circumstances. As a result, this state finds itself in the unusual position of having a statute that precludes enforcement, in certain circumstances, of another statute that makes certain activity illegal. Needless to say, this decision to use one statute to undercut the enforceability of another statute, instead of simply redefining the circumstances under which marijuana use and possession are legal in this state, greatly adds to the confusion that surrounds this act.

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A closer look at the pertinent subsections of § 4 further shows [*59] this to be the case. Section 4(a) specifies that a qualifying patient with a registry identification card is not subject to arrest, prosecution, or penalty "for the medical use of marijuana in accordance with this act." MCL 333.26423 defines a "qualifying patient" as "a person who has been diagnosed by a physician as having a debilitating medical condition." Accordingly, even if a qualifying patient has a registry identification card, that patient is entitled to protection under the MMMA only if he or she has also been diagnosed with a debilitating medical condition. In order to "diagnose" a patient, a physician must "determine the identity of (a disease, illness, etc.) by a medical examination." Random House Webster's College Dictionary (2001). Accordingly, despite whether an individual has a registry identification card, that individual is not a "qualifying patient" under the MMMA and, therefore, is not entitled to the act's protections unless a physician has determined that the patient suffers from an identifiable debilitating condition. 12

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12 Accordingly, an individual is not entitled to protection under the MMMA if a physician has acknowledged only that the individual suffers from [*60] symptoms of a disease or illness (such as pain, nausea, or anxiety), but has not actually diagnosed that person with a debilitating disease or illness. Also, the term "medical use" is only employed in specific sections of this act, while the term "use" is employed in other sections, thereby suggesting two separate meanings for the term "use" within the act.

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Under § 4(a), a qualifying patient may engage in the "medical use" of marijuana without fear of arrest. Interestingly, the term "medical use," as defined by the MMMA, is much broader than one would anticipate. MCL 333.26423(e) defines the term "medical use" as "the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." The definition of "medical use" is unexpectedly broad: although a qualifying patient may not sell marijuana, just about anything else an individual can do with marijuana would be considered medical use under the MMMA. 13

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13 An example [*61] of this conflict is § 4(a) and § 7(b)(5) of the act. Section 4(a) allows 18-year-old high school students to grow and use marijuana if they are properly registered with the state. Section 4(a) also states that as long as he or she is a qualifying patient who has a registry card, he or she "shall not be subject to arrest, prosecution, or penalty in any manner whatsoever." Reading § 4(a) in isolation allows 18-year-old students to possess marijuana in our schools without being subject to arrest, prosecution, or penalty in any manner whatsoever. Conflicting with § 4(a) is § 7(b)(2)(B), which provides that one may not possess medical marijuana on the grounds of any preschool or primary or secondary school.

Sections 4(b) and 7(b)(5) are also in conflict. Section 7(b)(5) states that a person may not use marijuana if that person does not have a serious or debilitating medical condition. Section 4(b) allows primary caregivers to assist qualifying patients. Nothing in § 4(a) or (b) allows primary caregivers to use marijuana, unless they qualify under § 4(a). The conflict arises because the act allows primary caregivers to grow marijuana, but it prohibits those who are not "qualifying patients" [*62] to use marijuana. I note that caregivers receive registration cards under the statute but are not required to have a "written certification" stating they have a debilitating condition. The only logical conclusion is that "primary caregivers" who do not possess a "qualifying patient" registry card are not permitted to use marijuana under the MMMA.

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Section 4(a) also provides that a qualifying patient is not subject to arrest, prosecution, or penalty for the medical use of marijuana if that patient has no more than 12 marijuana plants in an enclosed, locked facility. Alternatively, the qualifying patient may designate a primary caregiver to grow up to 12 plants in an enclosed, locked facility. However, because the statute provides that a qualified patient may be in possession of the specified number of marijuana plants only if the patient has not designated a primary caregiver to grow marijuana for him or her, if the qualified patient has made such a designation, the statute provides him or her with no protection from arrest if found in the possession of any marijuana plants.

Section 4(b) specifies the circumstances in which a registered primary caregiver is protected from arrest. MCL 333.26423 [*63] defines a "primary caregiver" as "a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs." Section 4(b) specifies that a registered primary caregiver may assist only a qualifying patient 14 to whom he or she is connected through the department's registration process with the medical use of marijuana. Accordingly, a primary caregiver may not assist any qualifying patient in the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marijuana unless that caregiver is connected to that qualifying patient through registration with the Department of Community Health (DCH). Section 6(d) specifies that "each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marijuana." MCL 333.26426(d). Accordingly, no primary caregiver who wishes to benefit from the protections offered by the MMMA may assist more than five qualifying patients in acquiring, possessing, cultivating, manufacturing, using, internally possessing, [*64] delivering, transferring, or transporting marijuana, presuming that the five qualifying patients in question are connected to that caregiver through the department's registration process. 15 Any assistance that any primary caregiver provides on behalf of any qualifying patient to whom that caregiver is not connected by the registration process is not subject to the protections of the MMMA.

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14 The act uses both the terms "qualifying patient" and "patient." While qualifying patients enjoy greater protections under § 4 than patients do under § 8, both qualifying patients and patients must follow all of the provisions of the act, including the requirement that all patients growing marijuana do so in an "enclosed locked facility." Growing marijuana in the back yard thus subjects the grower and the homeowner to the penalties found in the Public Health Code. This requirement is consistent with the language of the ballot proposal. The issue whether each patient's 12 marijuana plants must be grown in a separate locked facility is best left for another day. Those caregivers who commingle various patients' plants in one facility may look forward to becoming test cases. Primary caregivers may have [*65] only five patients and, if the qualifying patient designates him- or herself as his or her own caregiver, then that caregiver is allowed only four additional patients.15 Many Michiganders are faced with the often unwelcome intrusion of medical marijuana dispensaries in their communities, and local governments are faced with the difficult task of determining whether they are obliged to allow such dispensaries to operate in their communities. Yet, interestingly, under a proper reading of § 4(b), the operation of a dispensary would make little economic sense, because in order to abide by the provisions of the MMMA, the dispensary would have to be operated entirely by one individual, and could have, at most, five customers. This is because, first, the MMMA has no provision for the sale of marijuana, and second, a primary caregiver is permitted to receive compensation for only the costs associated with assisting a qualifying patient to whom he or she is connected through registration with the DCH.

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Similarly, a primary caregiver may not possess more than "12 marijuana plants kept in an enclosed, locked facility" for each qualifying patient to whom the caregiver is connected through the registration [*66] process and who has that patient's permission to cultivate the allotment of marijuana plants. MCL 333.26423 defines an "enclosed, locked facility" as "a closet, room, or other enclosed area equipped with locks or other security devices that permits access only by a registered primary caregiver or registered qualifying patient." Although it is unclear from the statute whether each grouping of 12 plants must be in a separate enclosed, locked facility, 16 it is clear that under no circumstances may a primary caregiver be in possession of more than a total of 60 marijuana plants, presuming that the primary caregiver acts in that capacity for the statutory maximum of five qualifying patients, all of who have given him or her the authority to cultivate marijuana for them. Because a qualified patient who has designated a primary caregiver to cultivate marijuana for him or her may not him- or herself have possession of any marijuana plants, the primary caregiver is the only individual permitted to be in possession of the qualifying patient's marijuana plants under this circumstance. Accordingly, this means that each set of 12 plants permitted under the MMMA to address the purported medical [*67] needs of a particular qualifying patient must be kept in an enclosed, locked facility that can only be accessed by one individual, either the qualifying patient or the qualifying patient's primary caregiver; any other individual with access to the marijuana plants designated for a particular qualifying patient would be considered in possession of marijuana and subject to arrest and prosecution for violating the Public Health Code. 17

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16 Anyone growing more than 12 plants in one separate enclosed, locked facility should not complain or be surprised when or if a federal drug enforcement agent appears. Again, under federal law, cultivating marijuana is illegal. Growing large quantities of marijuana in an enclosed, locked facility is the same as waving a red flag in front of a 3,000 pound bull. Any questions in this regard are quickly answered by reading the Gus Burns article in the April 22, 2010, Saginaw News, "Federal agents and sheriff's deputies say seized marijuana in Saginaw County was illegal and not medicine." Federal agents and sheriff's deputies say seized marijuana in Saginaw County was illegal and not medicine | MLive.com (accessed September 13, 2010). Caregivers who do not want to become a test case should [*68] proceed with caution. No clear, reliable, or lasting resolution to this conflict between state and federal law seems in view.17 It is important to remember that under the laws of this state, "A person need not have actual physical possession of a controlled substance to be guilty of possessing it. Possession may be either actual or constructive." People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748, amended 441 Mich 1201; 489 NW2d 748 (1992). "Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the controlled substance." People v Meshell, 265 Mich App 616, 622; 696 NW2d 754 (2005), citing Wolfe, 440 Mich at 521. The "essential element" is that a defendant has "dominion or right of control over the drug with knowledge of its presence and character." People v McKinney, 258 Mich App 157, 166; 670 NW2d 254 (2003) (internal citations omitted). "Because it is difficult to prove an actor's state of mind, only minimal circumstantial evidence and the reasonable inferences that arise from the evidence are required to prove that a defendant had constructive possession." People v Brown, 279 Mich App 116, 137; 755 NW2d 664 (2008). [*69] Accordingly, an individual who places himself in the proximity of marijuana is at risk of being charged with possession of the substance.

In light of these rules concerning what constitutes possession, the MMMA places the entire burden of cultivating a particular qualifying patient's marijuana plants entirely on one individual (either the qualifying patient or his or her primary caregiver). No other individual can legally even water the plants or enter the enclosed, locked facility to turn on a grow light without risking arrest and prosecution for violating the Public Health Code. This means that primary caregivers and qualifying patients cannot legally form a cooperative and grow marijuana in a shared facility without violating the MMMA and thus being subject to arrest and prosecution under the Public Health Code.

Presumably the drafters affiliated with the Marijuana Policy Project agree. Diane Byrum, a spokesperson for the project, said, "'The Michigan proposal wouldn't permit the type of cooperative growing that allows pot shops to exist in California. Those kinds of operations are what have faced federal crackdowns.'" Satyanarayana, Is Marijuana Good Medicine? Detroit Free Press, [*70] October 25, 2008, http://www.freep.com/article/2008102...-good-medicine (accessed September 10, 2010). Accordingly, before the November 2008 vote on this ballot proposal, even the drafters of the MMMA were unequivocal that the statute would not permit marijuana growing cooperatives in Michigan.

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Section 4(e) permits a registered primary caregiver to receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marijuana. However, under § 4(b) a registered primary caregiver may assist only a registered qualifying patient to whom he or she is connected through registration with the DCH. Accordingly, §§ 4(b) and 4(e) can only be reconciled by concluding that the primary caregiver's "compensation for the costs associated with assisting a registered qualifying patient in the medical use of marijuana" will come from only a registered qualifying patient to whom he or she is connected through the department's registration process. 18 Because a primary caregiver may assist only the five or fewer qualifying patients to whom the caregiver is connected through the registration process, there is no circumstance under the [*71] MMMA in which the primary caregiver can provide assistance to any other qualifying patient, and receive compensation in exchange, without being subject to arrest and prosecution under the Public Health Code. 19

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18 Stated another way, only the person the qualifying patient names as his or her primary caregiver on his/her registration form can receive compensation for associated costs, and that compensation can only be received from the "qualifying patient to whom he or she is connected through the department's registration process."19 A familiar example may help clarify how the provisions of the MMMA are connected to each other. Michigan has statutory qualifications for persons entering into a state of matrimony. See MCL 551.1 (restricting marriage to couples of opposite gender); MCL 551.3 (disqualifying couples who are of specified, close degrees of familial affinity). There is also a registration requirement, in the form of a marriage license. MCL 551.2. Married couples have many statutory rights and duties. See, e.g., MCL 557.204 (the equal right to property acquired during the marriage); MCL 554.45 (the right to hold property as joint tenants); MCL 557.151 (the right to joint ownership [*72] of personal property); MCL 205.93(3)(a) (the right to transfer property and free from use tax); MCL 600.2162 (the right not to testify against a spouse); MCL 552.7 (authorizing actions for separate maintenance). The registration, or licensing, requirement inheres in all statutory references to marriage, and thus there is no need to repeat it with each statutory mention. MCL 206.311(3) authorizes the filing of joint tax returns by "husband and wife," but does not reiterate that this concerns couples licensed to marry each other. To conclude that any married person, qualified and registered under the laws of this state, may file jointly with any other married person, so qualified and registered, would be nonsensical and lead to an absurd result. As the statutory registration, or licensing, requirement carries through all marriage law, the registration requirement of the MMMA should be understood to carry through all provisions of that act.

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In addition, a primary caregiver may receive compensation for only the costs associated with assisting a registered qualifying patient in the medical use of marijuana. This simply means that the primary caregiver may receive reimbursement for monetary [*73] expenses incurred in the course of assisting the qualifying patient in the medical use of marijuana. The statute does not authorize compensation for the labor in cultivating marijuana, or for otherwise assisting the qualifying patient in its use, nor does it indicate that the primary caregiver may profit financially from this role.

Section 4(f) protects a physician from arrest for providing written certifications, if the certifications are provided in the course of a bona fide physician-patient relationship, and if the physician has first completed a full assessment of the qualifying patient's medical history. Unfortunately, the statute does not indicate how the existence of an authentic physician-patient relationship can be discerned. However, a factfinder might wish to ask certain questions when determining whether the physician-patient relationship is authentic, including (a) whether the physician signing the written certification form is the patient's primary caregiver, (b) whether the patient has an established history of receiving medical care from that physician, (c) whether the physician has diagnosed the patient with a particular debilitating medical condition instead of simply [*74] stating that a patient's reported symptoms must be the result of some unidentified such condition, (d) whether the physician has been paid specifically to sign the written certification, and (e) whether the physician has a history of signing an unusually large number of such certifications. Needless to say, those doctors hired specifically to sign certification forms are suspect and deserve special scrutiny by prosecutors, the DCH, and the legislative oversight committees of both the House and Senate. 20

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20 The DCH should keep track of the number of certification forms each doctor signs. If it is determined that certain doctors are collecting money for routinely signing the forms, those doctors should be disqualified from participation in the Michigan Medical Marijuana Program. It is beyond question that one doctor treating 100, 500, or 1,000 terminally ill patients, with a 10-minute examination, has not been acting pursuant to bona fide physician-patient relationships. A revolving-door, rubber-stamp, assembly-line certification process does not constitute activity "in the course of a bona fide physician-patient relationship," especially where the doctor fails to set any medical boundaries [*75] for his or her patients and fails to monitor the patient's progress on a regular basis.

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Section 4(f) also indicates that "[a] physician shall not be subject to arrest . . . for otherwise stating that, in the physician's professional opinion, a 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 associated with the serious or debilitating medical condition." This provision does not create an alternative scenario under which a physician may issue a written certification to a patient in the absence of a bona fide physician-patient relationship with that patient or a full assessment of the patient's medical history. Instead, this provision merely provides a physician with additional protection from legal penalty, or disciplinary action from a professional licensing board, if a physician opines in general that an individual might benefit from the use of medical marijuana.

Section 4(i) provides that "a person shall not be subject to arrest . . . solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for [*76] assisting a registered qualifying patient with using or administering marihuana." In a possible attempt at chicanery, the drafters of the act thus slipped into this subsection the term "person," instead of discussing the protections and responsibilities of a "caregiver" or "qualifying patient." Reading § 4(i) in isolation could cause one to conclude that it constitutes a nullification of all provisions in the Public Health Code that punish individuals who come in contact with medical marijuana. However, when reading § 4(i) in context, it is clear that it is not, nor is it intended to function as, a permission slip to manufacture or sell marijuana in Michigan. First, because the MMMA does not grant rights to anyone, the use of the word "person" instead of the more specific terms "qualifying patient" and "primary caregiver" does not constitute an expansion of any rights. Instead, although a "person" may not be subject to arrest under § 4(i) for "assisting a registered qualifying patient with using or administering marihuana," it is clear that this protection does not extend to assisting a registered qualifying patient in the medical use of marijuana as defined by MCL 333.26423(e). Instead, [*77] this protection from arrest only extends to providing assistance in "using or administering" marijuana, which is much more limited. Such assistance is in the nature of holding or rolling a marijuana cigarette, filling a pipe, or preparing marijuana-laced brownies for the qualifying patient suffering from a terminal illness or a debilitating condition. Section 4(i) does not protect persons generally from arrest for acquiring, possessing, cultivating, manufacturing, delivering, transferring, or transporting marijuana on behalf of the qualifying patient.

Finally, § 4(k) imposes a penalty on those registered qualifying patients or registered primary caregivers who sell marijuana to "someone who is not allowed to use marihuana for medical purposes under this act . . . ." The penalty is severe: a violator faces up to two years in prison or a fine of up to $ 2,000. However, that this subsection specifies a particular punishment for a specific type of violation does not mean that, by default, the sale of marijuana to someone who is allowed to use marihuana for medical purposes under this act is permitted. The MMMA does not give any individual permission to sell marijuana in the state of Michigan [*78] for any purpose. Instead, the MMMA merely identifies circumstances under which qualifying patients and primary caregivers are protected from arrest and prosecution for the "medical use" of marijuana. If the drafters of this statute wanted to legalize the sale of marijuana to qualifying patients from primary caregivers or other qualifying patients, they would have included the term "sale" in the definition of "medical use." MCL 333.26423(e). They did not and, therefore, the sale of marijuana is not a permitted activity under § 4. 21 Stated differently, the MMMA does not legalize the sale of marijuana to any individual, even one registered as a qualifying patient. 22

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21 As explained earlier, § 4(e) permits a primary caregiver to receive compensation for costs associated with assisting a registered qualifying patient to whom he or she is connected through the DCH's registration process. Again, this means that the primary caregiver may receive reimbursement for monies paid in the course of assisting the qualifying patient in the medical use of marijuana, but may not receive compensation or otherwise profit from the labor in cultivating marijuana or otherwise assisting the qualifying patient [*79] in its medical use.22 Accordingly, I can find no circumstance under which the MMMA legalizes the sale of marijuana by medical marijuana dispensaries. The statute simply does not permit such activity.

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Section 7 of the act is very specific about who can legally use medical marijuana. It provides as follows:

(a) The medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.

(b) This act shall not permit any person to do any of the following:

(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.

(c) Nothing in this act shall be construed [*80] to require:

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana.

(2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.

(d) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $ 500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.

(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act. [MCL 333.26427.]

When interpreting § 7, it is important to remember that an individual acquires protection from arrest and prosecution under this act only if suffering from serious or debilitating medical condition. A person without such a condition, as defined by the act and diagnosed by a physician, is prohibited from using marijuana and remains subject to the penalties set [*81] forth in the Public Health Code. Section 7(b)(5) acts as an affirmative defense to a prosecution under the Public Health Code, meaning that the defendant has the responsibility of establishing that he or she was suffering from a serious or debilitating medical condition as a prerequisite to establishing a medical marijuana defense. Once the defendant has presented sufficient evidence to establish the existence of a sufficiently serious medical condition, the prosecuting attorney may seek to rebut it, including by cross-examination of the defendant's physician regarding whether the defendant had a serious or debilitating medical condition. Of course, the prosecution may also call medical experts to rebut the defendant's evidence.

A defendant asserting the medical marijuana defense bears the burden of establishing the existence of a qualifying medical condition; a mere assertion is not sufficient. 23 Further, it logically follows that a defendant resorting to that defense by placing into evidence his or her medical condition necessarily waives any physician-patient privilege that would otherwise limit a prosecutor's prerogative to question the defendant's physician or examine pertinent [*82] medical records.

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23 Although most qualifying patients and primary caregivers apparently believe they are immune from arrest or prosecution if they possess registration cards, the MMMA makes no such provision. Instead, the act leaves a qualifying patient or primary caregiver subject to criminal proceedings for any conduct not for the purposes of alleviating the qualifying patient's debilitating medical condition or its symptoms. MCL 333.26424(a) and (b); MCL 333.26427(b)(5). In my opinion, all certification forms should include a warning that, even though the patient has a registry card, the patient could still be prosecuted for conduct that is not in strict accordance with the provisions of the MMMA.

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In the present case, both defendants contend that they are entitled to assert an affirmative defense under § 8 of the MMMA. Section 8 addresses affirmative defenses for patients and caregivers under the act. It reads as follows:

(a) Except as provided in section 7, 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) [*83] 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 [*84] or symptoms of the patient's serious or debilitating medical condition.

(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).

(c) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

(2) forfeiture of any interest in or right to property. [MCL 333.26428.]

In this section, the act speaks for the first time in terms of a patient instead of a qualifying patient. The purpose of § 8 is to establish an affirmative defense for those marijuana users and growers who are not registered with the state. Read out of context and with a limitless imagination, one could conclude that qualifying patients, patient caregivers, physicians, or persons in general, may not be arrested or prosecuted for any actions involving marijuana, i.e., the [*85] act in essence legalizes marijuana in Michigan. But, as I have previously stated, the language of the ballot proposal and a contextual reading of the act belies this premise.

In order for defendants to assert an affirmative defense under § 8(a)(1), they must first establish that Dr. Eric Eisenbud, the physician who signed their medical marijuana authorizations, treated them in the course of a bona fide physician-patient relationship, and they must further establish that they have a serious or debilitating condition under § 7(b)(5). Both defendants have failed to establish either prerequisite to asserting a § 8 affirmative defense.

At issue is the term, "in the course of a bona fide physician-patient relationship." This phrase has three components: physician-patient relationship, bona fide, and in the course of. When construing a statute, a court should presume that every word has some meaning; a construction rendering some part nugatory or surplusage should be avoided. People v Seiders, 262 Mich App 702, 705; 686 NW2d 821 (2004). "Physician-patient relationship" clearly means that a patient must have the traditional doctor-patient relationship. Use of the qualifier "bona fide" indicates [*86] that the drafters of this act were concerned about such doctors as the Livingston County one described in part IV, infra, who routinely sell written certifications for profit, rather than provide them for any genuine medical reason. Any such doctor is not engaging in the good faith practice of medicine, and any such certifications must be disallowed under this act. 24 "In the course of" clearly means that the bona fide relationship has been in existence beyond just one occasion. An individual who visits a doctor for the first time for the sole purpose of obtaining certification for use of medical marijuana, especially after an arrest on drug charges, does not satisfy the requirement that such certification come about in the course of a bona fide physician-patient relationship. Conversely, a primary-care physician who has long been treating a patient suffering from a terminal illness or a serious or debilitating condition is certainly acting in the course of a bona fide physician-patient relationship. (THIS IS THE DOC-IN-THE-BOX CLAIM I MADE IN WASHINGTON)