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142695, 142712 - People v Kolanek (Alexander)

The People of the State of Michigan,
Thomas R. Grden
Plaintiff-Appellant [in 142712]
(Appeal from Ct of Appeals)
(Oakland – Sosnick, E.)
Alexander Edward Kolanek,
Mark A. Ambrose
Defendant-Appellee [in 142712].


​Alexander Kolanek came to the attention of the police on April 6, 2009, when he and a bank customer got into an argument in the bank’s parking lot. A sheriff’s deputy who responded to the bank customer’s 911 call searched Kolanek’s car and found, among other things, a pill bottle containing eight marijuana cigarettes. Kolanek was charged with marijuana possession. Kolanek, who claimed that he had the marijuana for medical purposes as allowed by the Michigan Medical Marihuana Act (MCL 333.26421 et seq.), did not have a “registry identification card” at the time of his arrest. He submitted an application for a registry card on April 12, 2009, along with a qualifying patient certificate from his doctor. His Marijuana Registry Patient ID Card was issued on May 1, 2009.

On June 10, 2009, Kolanek moved to dismiss the charges, asserting an affirmative defense under § 8 of the MMMA, MCL 333.26428(a). Section 8 provides an affirmative defense for patients who have not been issued a registry identification card, yet meet certain criteria, MCL 333.26428. Under the § 8 affirmative defense, an unregistered patient is permitted to possess “a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana” for treatment of the patient’s condition or symptoms.

At an evidentiary hearing in district court, Dr. Ray Breitenbach, a licensed physician, testified that he had been treating Kolanek for Lyme disease, and that the symptoms included chronic severe pain, fatigue, and malaise. Breitenbach opined that, on April 6, 2009, Kolanek would have received palliative benefit from the use of marijuana and that he would have been eligible to use it as a patient. After Kolanek’s arrest, Breitenbach had filled out an affidavit including this diagnosis and opinion – it was the doctor’s first authorization for medical use of marijuana. In an affidavit filed after the hearing, Breitenbach added that he had met with Kolanek on June 14, 2008, and discussed with him the then-anticipated passage of the MMMA. According to his affidavit, Breitenbach told Kolanek at that time that if the act passed, he would support Kolanek’s authorization to use marijuana.

The district judge denied Kolanek’s motion to dismiss the pending charges under the MMMA. The court noted that Kolanek was not required to possess a registry card in order to assert the affirmative defense. However, said the court, because he had not obtained a physician statement authorizing the medical use of marijuana until after his arrest, he was not entitled to the § 8 statutory presumption that the marijuana was for medical use. Since he otherwise failed to prove that he was using it for medical purposes, he was not entitled to relief, the district court concluded.

Kolanek appealed to the circuit court, which reversed, concluding that the district court’s interpretation of § 8 was erroneous. The prosecutor appealed, and the Court of Appeals reversed the circuit court in a published per curiam opinion, remanding the case to the district court for reinstatement of the charges against Kolanek. The appeals court held that, to present a valid defense to the charges, Kolanek had to establish that he discussed the medical use of marijuana with a physician after the enactment of the MMMA but before his arrest. “[I]t is reasonable to assume that the affirmative defense created in § 8 was intended to protect those who actually had a medical basis for marijuana use recognized by a physician prior to said use and was not intended to afford defendants an after-the-fact exemption for otherwise illegal activities,” the Court of Appeals stated. The Court of Appeals concluded, however, that nothing in the statute expressly precluded Kolanek from arguing his § 8 defense to the jury. Both Kolanek and the prosecutor appeal.