Michigan Court of Appeals decided June 26, 2012
On May 1, 2011 the defendant was found by the police to be in possession of one ounce of marijuana. Sec 9(b) states that if a person submits an application and the department does not act upon it within 20 days the application deemed granted and the application will be the valid registration card. The Defendant had applied for a card on February 16, 2011 and received the card after the arrest but backdated to March 18, 2011.
The defendant did not have the application at the time of his arrest but argues that he constructively possessed it at home which should satisfy the possession requirement of sec 4(a).
The question for the court was did a patient have to have to possess the card at the time of arrest to be immune under sec 4(a). The court said that when sec 4(a) stated a patient who possessed a registration card shall not be subject to arrest, prosecution or penalty” means that the court must analyze whether a patient has a card in all three circumstances. Further the court ruled that “possesses” is in present tense and therefore a patient must actually possess a card to be immune from arrest. The card must be reasonably accessible of the location of that person’s marijuana possession and use. The defendant in this case is not immune from arrest but is immune from prosecution as long as he can demonstrate that he was engaged in the medical use of marijuana pursuant to sec 3(f) to treat or alleviate a debilitating medical illness or its symptoms.