Judge Sosnick in Oakland County dismissed the case pursuant to a MMMA defense. The Michigan Supreme Court reversed and reinstated the charges
A defendant asserting section 8 defense does not have to satisfy the requirements of section 4, to satisfy sec 8(a)(1) the physician’s statement must be done before commission of the offense. In King, he did not have plants in his home that were in an enclosed locked facility pursuant to sec 4(a), which is not a requirement for section 8.
Any person, registered or not, that has more than 2.5 ounces and 12 plants may assert section 8 and will prevail as long as the requirements in sec 8 are met.
The requirement of a physician’s statement is not retroactive and must have been made after enactment and before the offense. 8(1)(a) states the “physician has stated” which is present perfect tense and means that it has already happened. It cannot happen after.
A section 8 defense must be asserted before trial at an evidentiary hearing. If the defendant establishes the elements without a question of fact they are entitled to dismissal. If the defendant raises a prima facie level of evidence of the elements but a question of fact remains, the jury shall decide it. Therefore a defendant can lose a sec 8 pre trial hearing and still argue the defense to a jury. This probably does not happen with the statement happens after the offense. If the defendant believes that the trial court erroneously decided the sec 8 hearing the remedy is interlocutory appeal