In the consolidated case of People v. Bylsma, No. 317904, and People v. Overholt, No. 321556, the Michigan Court of Appeals clarified that only “patients” and “primary caregivers”, as those terms are defined under the Michigan Medical Marihuana Act (“MMMA”), can raise the §8 affirmative defense. The Court of Appeals held to be eligible for the §8 affirmative defense, an individual must either be a “patient” himself—which requires being diagnosed with a serious or debilitating medical condition—or be the sole “primary caregiver”—which requires the individual to be at least 21 years old, have agreed to assist with a patient’s medical use of marihuana, and have never been convicted of a felony involving illegal drugs—of no more than five qualifying patients. Further, this affirmative defense only applies to a charge arising out of activities directly related to a defendant’s status as a patient or as the sole primary caregiver for a specific patient’s medical use of marihuana.
The Michigan Supreme Court previously held that when a defendant is not entitled to §4 immunity under the MMMA, he or she may still qualify for the §8 affirmative defense under the MMMA. The Michigan Court of Appeals in this consolidated case addressed how a defendant, who possessed, cultivated, manufactured, delivered, sold, or transferred marihuana to a patient or caregiver to whom the defendant was not connected through the registration process of the MMMA, may raise an affirmative defense under §8.
The Court of Appeals held that neither defendants satisfied the prerequisites to successfully raise the §8 affirmative defense. Bylsma was not a “primary caregiver” under the MMMA because he provided care for patients who had other designated primary care givers—meaning that Bylsma was not the sole primary caregiver for his patients—and he cultivated plants for other caregivers for whom he was not their sole primary caregiver. Overholt was also not a “primary caregiver” to the individuals to whom he sold marihuana because he sold it to multiple caregivers and to patients who did not have a designated primary caregiver and, therefore, served as their own caregivers.
