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Health & Fitness

Will a 'sticky note' put marijuana caregiver's wife in jail?

The case was argued in the Michigan Court of Appeals; no oral argument or briefs from tardy Oakland County Prosecutor's office

Can a medical marijuana caregiver's family members be charged with a crime simply for being in the same house as the garden? Oakland County Circuit Court Judge Colleen O'Brien thinks so, and her ruling is now under consideration by the Michigan Court of Appeals (COA).

Attorney David Rudoi argued the case on behalf of Cynthia Mazur before the COA in Detroit on January 15.  A search warrant was executed on the Mazur home in Holly, which resulted in marijuana manufacturing and gun possession charges. In exchange for not charging the felony firearm charge, Mazur's husband plead guilty to a marijuana offense.

Prosecutors then charged Cynthia Mazur with both manufacturing marijuana and possession with intent to distribute marijuana for allegedly assisting in the cultivation process. Their single piece of physical evidence: a sticky note she had written on that was stapled to the stalk of a drying marijuana plant.

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"The husband plead guilty because he was being threatened with a two year firearms felony and now because his garden was in technical violation of Section 4, his spouse was charged with a crime," an exasperated Rudoi told TCC.

The Michigan Medical Marihuana Act allows that people who are in the vicinity of the medical use of marijuana are immune from criminal prosecution. The position of the Oakland County Prosecutor is, if the garden is not in compliance with the Act that immunity is nonexistent, Rudoi explained.

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"You lose your immunity for merely being present?"  Rudoi questioned. "My argument is, this is clearly not the intent of the voters."

Michigan's Medical Marihuana Act was a voter-directed initiative that garnered 63% of the vote in 2008.

The note was attached to a drying plant contained within the garden. "Mr. Mazur needed the note written and he asked her to do it," Rudoi explained. "He took the note into the garden and stapled it to the stalk." The note contained information related to the harvest date and usable date of the plant. "They have no video, no fingerprints, no evidence that she ever entered the garden itself."

Other evidence offered as proof of Mazur's role in maintaining the garden included her statements during the raid of her home. Officers claim she used the collective word "we" when she was interviewed regarding the marijuana-related activities taking place at the home. "That means nothing," Rudoi said. "Even if she said, 'We did nothing wrong,' that doesn't amount to an admission of guilt."

Judge O'Brien ruled that Mazur was not a caregiver and therefore was ineligible for a Section 8 defense hearing, then determined that she was acting as a caregiver for the purposes of levying charges against her while still denying her defense team the right to a Section 8 trial. Under the MMA's Section 8 rules a person can assert an Affirmative Defense, explaining why they may not have been in compliance with the MMA's normal restrictions. Section 8 trials are jury trials; many prosecutors fear a jury trial because the public does not support prosecution of marijuana crimes, Rudoi said.

It is O'Brien's denial of a Section 8 hearing that has the entire process on hold. Rudoi applied for an interlocutory appeal, which has Mazur's trial paused while the COA determines the proper course of action to take. Oakland County prosecutors failed to submit legal briefs before the court-assigned date. Although Rudoi agreed to allow the prosecution more time to submit the documents the COA rejected the notion; in a regular case, time extensions are common but they are not allowed during interlocutory cases.

Oakland County was unable to present written arguments, nor were prosecutors allowed to give oral arguments on the 15th. Rudoi had the panel all to himself. "I used every second of my fifteen minutes," he said. "I didn't get to present all the information I had wanted to because the judges asked so many questions."

This case's precedent could be binding on other courts across Michigan. "This should be a published Opinion," by the Court of Appeals, Rudoi said. COA Opinions that are published are binding on other courts across the state. "There really is no case law on this subject," he concluded.  He was optimistic that the three-judge Appellate Panel would weight the arguments carefully, predicting the case will be decided- one way or another- by a vote of 2 -1.

 

Editor's note: Attorney Rudoi gave a more detailed evaluation of this case on the Jan. 16 episode of the Planet Green Trees Internet radio show. Listen to the program at:

http://www.blogtalkradio.com/planetgreentrees/2014/01/17/planet-green-trees-episode-182-the-true-sto...

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