What do you do if you’ve been arrested with an expired Michigan medical marijuana card? You may still be covered under the medical marijuana shield if you have remained in substantial compliance with the Michigan Medical Marijuana Act’s three-prong Section 8 test.
Facing marijuana charges? Unhappy with your current attorney? Request a free consultation now.
Possible Legal Defenses
First, let me start out by saying that it’s a terrible idea to smoke in your car.
According to Michigan case law, a police officer only needs to smell the odor of marijuana coming from your car in order to have probable cause to search it.
This means that a simple speeding ticket could turn into a misdemeanor possession charge quickly.
Therefore, it’s always advisable to avoid smoking in your car or wearing clothes that have been around smoke.
Marijuana has a distinctive smell that any officer will immediately detect.
Now that we have that situation covered, let’s talk about the two legal defenses provided by the Michigan Medical Marijuana Act.
There are two separate sections that can aid your defense.
- Section 4 – A section 4 motion presents immunity from prosecution. This means that you cannot be brought up on charges of possession. Section 4 is available to those who had a valid card at the time of the arrest. However, be sure you don’t have too much on you. The law is very clear that you should only have enough for personal use, so try to keep it under 2.5 ounces.
- Section 8 – A Section 8 motion presents an “affirmative defense” to prosecution. While that sounds like fancy lawyer-speak, it means that you may be entitled to defense if you’re in compliance with the Medical Marijuana Act even if you don’t have a valid card. A Section 8 motion can be complicated, so it’s important to understand all the factors considered.
Section 8 Factors
For most clients, Section 8 can be a real lifesaver.
Many clients either forget to renew their card, or they’re in the process of renewing it without keeping the card valid.
Having an expired Michigan medical marijuana card isn’t unusual.
Still, others have been using medical marijuana with their doctor’s knowledge without ever applying for a card.
If an officer pulls you over during these lapse periods, you’ll be charged with possession of marijuana.
You may then claim a Section 8 defense if you can prove…
- That you have a “bona fide physician-patient relationship” with a doctor who believes you’d benefit from the use of medical marijuana.
- This will usually not be the case with a doctor from the shady dispensary. In order to have a good defense, you should seek a doctor from a medical office that can schedule you for follow-up appointments and monitor your progress.
- You’ll also need a letter from this doctor attesting to the above information.
- You were in possession of a personal amount of marijuana which is reasonably necessary to ensure your treatments can continue uninterrupted.
- It’s not enough to claim you smoke three pounds of marijuana per day. Stick to your 2.5 ounces as it seems to get the least amount of pushback from the prosecutor and police.
- You weren’t engaging in the sale or manufacture of marijuana.
So I Have Been Arrested For Possession. What Do I Do Now?
You should retain an attorney as quickly as possible in these matters.
A court-appointed attorney will not put in the work necessary for you to win a Section 8 motion.
In fact, this motion must be made before trial and it requires an in-court hearing.
If there are no disputes over the facts presented at the hearing, the case is dismissed.
If any questions of fact remain, the defense can raise the Section 8 defense at trial.
Section 8 motions are relatively rare as most law firms don’t know how to argue and win them.
However, why should you accept a deal to a charge that doesn’t apply to you?
Arguing a Section 8 motion is an excellent way to avoid a costly possession of marijuana conviction from hitting your record.
In order to prepare for your meeting, make sure you bring all of your medical marijuana paperwork.
Also, you should begin gathering your medical records.
All of these documents will be important for the attorney to review during your initial hearing.
Facing drug charges? Unhappy with your current attorney? Request a free consultation now.
Attorney Morris is trial lawyer who has been providing high-quality legal representation in the areas of state and federal criminal defense for more than 20 years. He’s known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he’s dedicated to attaining justice in every case, and is always prepared to successfully take on complex legal issues. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society, and is the only forensic lawyer-scientist in Michigan. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He’s also an active member of the National Association of Criminal Defense Attorneys and has graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris is consistently chosen as a Top Lawyer of Metro Detroit and for DUI/OWI and criminal defense by DBusiness Magazine and Hour Magazine. He has also been chosen as a Super Lawyer in Criminal Defense.