What to do if you are arrested with an expired medical marijuana card

Michigan is on the verge of legalizing recreational marijuana. This means that police departments are scrambling to arrest as many people as possible for possession of marijuana before they lose their biggest money maker! This is bad news for the marijuana user who isn’t fully compliant with this state’s medical marijuana laws. However, 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.

Possible Legal Defenses

First, let me start out by saying that it is 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 is 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.

  1. 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 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.
  2. 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 a 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 is important to understand all the factors considered.
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Section 8 Factors

For most clients, Section 8 can be a real life saver. Many clients either forget to renew their card, or they are in the process of renewing it without keeping the card valid. 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 will be charged with possession of marijuana. You may then claim a Section 8 defense if you can prove…

  1. That you have a “bona fide physician-patient relationship” with a doctor that believes you would benefit from the use of medical marijuana.
    1. 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 which can schedule you for follow-up appointments and monitor your progress.
    2. You will also need a letter from this doctor attesting to the above information.
  2. You were in possession of a personal amount of marijuana which is reasonably necessary to ensure your treatments can continue uninterrupted.
    1. It is not enough to claim you smoke 3 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.
  3. You were not 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.

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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.