Gerald A. Fisher (P13462) | 6745 Parke Lake Drive | Clarkston, MI 48346

State Bar Public Corporation Law Section (PCLS)

A qualifying patient and primary caregiver under the MMMA are not permitted to cultivate or possess marihuana in a collective or cooperative, that there is no distinction between the primary caregiver in §4 and the primary caregiver in §8, and that both are subject to the same requirements and limitations as stated in the §4 scheme of regulation, that a primary caregiver assisting patients and asserting a § 8 affirmative defense must have been assisting registered qualified patients, and, that a caregiver asserting an affilmative defense, like a patient, must preserve evidence with regard to all elements listed in §8(a).

the Supreme Court held:
In order to receive immunity under § 4 of the MMMA, a registered primary caregiver may not possess more than 12 marijuana plants for each qualifying patient to whom he or she is connected through the state’s registration process. However, a defendant need not establish the elements of § 4 immunity in order establish the elements of a § 8 defense.
Court of Appeals’ judgment affirmed with regard to immunity under § 4 of the MMMA, reversed to the extent that it held that defendant was precluded from asserting a defense under
§ 8 of the MMMA, and case remanded for further proceedings.

Ryan M. Bylsma, a registered primary caregiver under the Michigan Medical Marihuana Act (MMMA) was charged with
manufacturing marijuana in violation of MCL 333.7401(1) and (2)(d). Defendant moved to dismiss the charge, asserting that as the registered primary caregiver of two registered qualifying
patients, he was allowed to possess 24 marijuana plants and that the remainder of the 88 plants seized by the police from his leased unit in a building belonged to other registered primary caregivers and registered qualifying patients whom defendant had offered to assist in growing and cultivating the plants. The court denied the motion, holding that the MMMA contains the strict requirement that each set of 12 plants of a specific qualifying patient must be kept in an enclosed, locked facility that can only be accessed by one person, that defendant had failed to comply with that requirement, and that defendant was therefore not entitled to invoke either the immunity provided by § 4(b) of the MMMA, or the affirmative defense contained in § 8 of the MMMA. Defendant appealed by leave granted. The Court of Appeals, GLEICHER, P.J.,and HOEKSTRA and STEPHENS, JJ., affirmed, holding that defendant was not entitled to § 4 immunity because the MMMA did not authorize him to possess the marijuana plants that were being grown and cultivated for registered qualifying patients whom he was not connected to through the Michigan Department of Community Health (MDCH) registration process and that his failure to meet the requirements of §4 immunity made him ineligible to raise the §8 defense. Defendant sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application for leave to appeal or take other
peremptory action.