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.
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.
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?