PEOPLE OF MI V JAMES RG NICHOLSON (Authored Opinion)
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 26, 2012
9:15 a.m.
Plaintiff-Appellee,
v
No. 306496
Ottawa Circuit Court
LC No. 11-035911-AR
JAMES RG NICHOLSON,
Defendant-Appellant.
Advance Sheets Version
Before: WHITBECK, P.J., and SAWYER and HOEKSTRA, JJ.
HOEKSTRA, J.
Defendant appeals by leave granted the circuit court order denying his application for
leave to appeal the district court’s denial of defendant’s motion to dismiss a charge of possession
of marijuana on the basis of immunity provided by the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq. 1 For the reasons stated in this opinion, we reverse and
remand for proceedings consistent with this opinion.
Defendant was arrested on May 1, 2011, for possession of marijuana in violation of MCL
333.7403(2)(d). Before his arrest, defendant had been sitting in a passenger seat of a parked
vehicle near the Grandville water treatment plant when the vehicle was approached by a police
officer. Defendant had approximately one ounce of marijuana in his possession, and verbally
informed the police officer that he was a medical marijuana patient. Defendant indicated that he
had been approved for the medical use of marijuana, but that he had not yet received his registry
identification card. Defendant claimed to have paperwork showing his approval for the use of
marijuana for medical purposes, but the paperwork was in his own car that was parked at his
residence. The police officer arrested defendant and he was subsequently charged with
possession of marijuana in violation of MCL 333.7403(2)(d). 2
1
Although the statutory provisions at issue refer to “marihuana,” by convention this Court uses
the more common spelling “marijuana” in its opinions.
2
MCL 333.7403(2)(d) provides that a person shall not knowingly or intentionally possess a
controlled substance, and that a person who possesses marijuana is guilty of a misdemeanor
-1-
In the district court, defendant moved for dismissal of the charge pursuant to § 4(a) of the
MMMA, which provides, in pertinent part: “A qualifying patient who has been issued and
possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in
any manner . . . provided that the qualifying patient possesses an amount of marihuana that does
not exceed 2.5 ounces of usable marihuana . . . .” MCL 333.26424(a). Defendant argued that
while he did not have the paperwork with him at the time of his arrest, he had applied for a
registry identification card on February 16, 2011. Further, defendant maintained that although he
had not received the actual card before the date of his arrest, by virtue of MCL 333.26429(b), 3
his application became his card on March 18, 2011. The record also indicates that a copy of
defendant’s application, dated February 16, 2011, and a registry identification card that was
backdated to indicate an issuance date of March 18, 2011, were submitted to the district court.
The district court denied defendant’s motion to dismiss. 4
Defendant then filed an application for leave to appeal the district court’s ruling in the
circuit court, which granted defendant’s motion for immediate consideration, but denied the
application in a written decision. The circuit court focused its analysis on the meaning of the
term “possesses” as used in § 4. The circuit court determined:
For [defendant] to avail himself of the defense provided by section 4(a) of
the act, he had to have an issued registry identification card in his possession at
the time of the offense. However, he acknowledges in his motion that he handed
the officer a baggy containing marijuana, and that he had applied for, but had not
received, a medical marijuana card.
punishable by imprisonment for not more than one year or a fine of not more than $2,000, or
both.
3
MCL 333.26429(b) provides:
If the department fails to issue a valid registry identification card in
response to a valid application or renewal submitted pursuant to this act within 20
days of its submission, the registry identification card shall be deemed granted,
and a copy of the registry identification application or renewal shall be deemed a
valid registry identification card.
4
In denying defendant’s motion to dismiss, the district court indicated that § 4 and § 8 (MCL
333.26424 and MCL 333.26428) of the MMMA did not protect two different classes of patients,
and that defendant was required to establish a doctor-patient relationship under § 4. The circuit
court denied defendant’s application for leave to appeal on different grounds. Nonetheless, we
note that the district court erred by conflating § 4 and § 8. As this Court has plainly explained,
“the MMMA provides two ways in which to show legal use of marijuana for medical purposes in
accordance with the act. Individuals may either register and obtain a registry identification card
under § 4 or remain unregistered and, if facing criminal prosecution, be forced to assert the
affirmative defense in § 8.” People v Redden, 290 Mich App 65, 81; 799 NW2d 184 (2010).
Because § 4 functions independently of § 8, and there is no mention of a physician-patient
relationship in § 4, the district court erred by holding that defendant must establish a physicianpatient relationship under § 4. See id.
-2-
Accordingly, the circuit court denied defendant’s application.
On appeal, defendant argues that the circuit court improperly added an “immediate
possession” requirement to the statute. Defendant maintains that the immunity from arrest and
prosecution provided in § 4(a) for “[a] qualifying patient who has been issued and possesses a
registry identification card” extends to qualifying patients who have constructive possession of a
registry identification card. Accordingly, defendant urges us to find that a qualifying patient may
not be arrested or prosecuted for the medical use of marijuana as long as that patient has a
registry identification card somewhere, and that a patient is not required to produce the card
immediately or carry the card on his or her person in order to qualify for the immunity set forth
in § 4(a).
We review a trial court’s decision on a motion to dismiss charges against a defendant for
an abuse of discretion. People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010). A
trial court may be said to have abused its discretion only when its decision falls outside the range
of principled outcomes. People v Blackston, 481 Mich 451, 460; 751 NW2d 408 (2008).
We review de novo a trial court’s interpretation of the MMMA. People v Bylsma, 294
Mich App 219, 226; 816 NW2d 426 (2011). “The MMMA was enacted as a result of an
initiative adopted by the voters in the November 2008 election.” Id. This Court explained the
rules of construction that apply to the interpretation of an initiative law in Redden, 290 Mich App
at 76-77:
“The words of an initiative law are given their ordinary and customary
meaning as would have been understood by the voters.” Welch Foods, Inc v
Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume
that the meaning as plainly expressed in the statute is what was intended. Id.
This Court must avoid a construction that would render any part of a statute
surplusage or nugatory, and “[w]e must consider both the plain meaning of the
critical words or phrases as well as their placement and purpose in the statutory
scheme.” People v Williams, 268 Mich App 416, 425; 707 NW2d 624 (2005).
It is illegal under the Public Health Code, MCL 333.1101 et seq., for a person to possess,
use, manufacture, create, or deliver marijuana. Michigan v McQueen, 293 Mich App 644, 658;
811 NW2d 513 (2011); see also MCL 333.7401(2)(d); MCL 333.7403(2)(d); MCL
333.7404(2)(d). The MMMA permits the medical use of marijuana “to the extent that it is
carried out in accordance with the provisions” of the MMMA. MCL 333.26427(a). The
MMMA “sets forth very limited circumstances under which those involved with the use of
marijuana may avoid criminal liability”; the MMMA did not repeal any drug laws. Bylsma, 294
Mich App at 227.
In this case, defendant moved for dismissal of his marijuana charge on the basis of the
immunity provided in § 4(a) of the MMMA. Section 4(a) provides:
A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
-3-
or disciplinary action by a business or occupational or professional licensing
board or bureau, for the medical use of marihuana in accordance with this act,
provided that the qualifying patient possesses an amount of marihuana that does
not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not
specified that a primary caregiver will be allowed under state law to cultivate
marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed,
locked facility. Any incidental amount of seeds, stalks, and unusable roots shall
also be allowed under state law and shall not be included in this amount. [MCL
333.26424(a).]
Accordingly, a defendant is immune from arrest, prosecution, or penalty pursuant to
§ 4(a) if he or she (1) is a qualifying patient, (2) who has been issued and possesses a registry
identification card, and (3) possesses less than 2.5 ounces of usable marijuana. Id. Provided that
a defendant satisfies these requirements, he or she is entitled to immunity under § 4(a) for the
“medical use” 5 of marijuana in accordance with the MMMA. MCL 333.26424(a). Thus,
medical use in accordance with the MMMA is an additional criterion for § 4(a) immunity.
It is not disputed that on the date of his arrest, defendant was a qualifying patient, had
been issued the equivalent of a registry identification card pursuant to MCL 333.26429(b), and
possessed less than 2.5 ounces of usable marijuana. What remains to be decided is whether,
under the circumstances of this case, defendant can satisfy the statutory requirements that a user
of marijuana for medical purposes be a person who “possesses a registry identification card” and
was engaged in the medical use of marijuana in accordance with the MMMA.
On appeal, defendant argues that the term “possesses” should be construed to include
constructive possession, and that, accordingly, he satisfied the requirement because he had
constructive possession of a registry identification card, which was in his automobile at his
residence. The prosecution argues that defendant was required to have his registry identification
card on his person in order to satisfy the “possesses” requirement. It is apparent from these
arguments that both defendant and the prosecution presume that whether a defendant is a person
who “possesses a registry identification card” at the time of his or her arrest is determinative
regarding whether he or she meets the § 4(a) “possesses” requirement in order to be immune
from not only arrest, but also prosecution or penalty.
However, contrary to the parties’ position, we conclude that a person can fail to qualify
for immunity from arrest pursuant to § 4(a), but still be entitled to immunity from prosecution or
penalty. Therefore, courts must inquire whether a person “possesses a registry identification
card” at the time of arrest, prosecution, or penalty separately. We base this conclusion on the
ordinary and customary meaning of the words, as they would have been understood by the
5
“‘Medical use’ means the acquisition, possession, cultivation, manufacture, use, internal
possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the
administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating
medical condition or symptoms associated with the debilitating medical condition.” MCL
333.26423(e).
-4-
voters, and we presume that the meaning plainly expressed by the words used in the statute is
what was intended. Redden, 290 Mich App at 76.
The statutory section at issue in this case specifically provides, in pertinent part, that “[a]
qualifying patient who has been issued and possesses a registry identification card shall not be
subject to arrest, prosecution, or penalty in any manner[.]” MCL 333.26424(a) (emphasis
added). The word “or” is disjunctive and, accordingly, it indicates a choice between alternatives.
McQueen, 293 Mich App at 671. Thus, the immunity from arrest, prosecution, or penalty set
forth in § 4(a) is applicable separately under each circumstance. Accordingly, whether a person
is one who possesses a registry identification card so as to be immune from arrest is a separate
question from whether the person is immune from prosecution or penalty.
Further, regarding the “possesses” requirement, the statute uses the term “possesses” in
the present tense. Thus, the language of the statute requires a defendant to presently possess his
or her registry identification card in order to qualify for § 4(a) immunity from arrest. Consistent
with the present tense language of the statute, we conclude that, for purposes of immunity from
arrest, someone “possesses” a registry identification card only when the registry identification
card is reasonably accessible at the location of that person’s marijuana possession and use. For
example, a registry identification card would be reasonably accessible at a person’s location
under circumstances where the person, who is in possession of marijuana in their house and is
requested by a police officer to establish their claim of immunity by producing their registration
identification card, does not have their card in their house but is able to comply by leaving the
house and retrieving the card from a car that is parked in the driveway of the house.
In this case, the relevant facts show that the arresting officer discovered defendant in
possession of marijuana when he was in a passenger seat in another individual’s vehicle that was
parked near the Grandville water treatment plant. The officer asked the driver of the vehicle
about the marijuana, and the driver indicated that defendant, who sitting in a passenger seat in
the vehicle, possessed the marijuana. Defendant told the officer that he had “crotched” the
marijuana and removed a small bag of marijuana from his groin region. At that point, defendant
informed the officer that he was a medical marijuana patient, but that proof of this fact was
located in his own vehicle, which was parked at his residence. Under these circumstances, we
conclude that defendant’s paperwork showing that he had been issued the equivalent of a registry
identification card at the time the police officer found him to be in possession of marijuana was
not reasonably accessible at the location where he was requested to produce it because he was in
possession of marijuana in another individual’s vehicle away from his residence where the
paperwork for his card was located. Consequently, defendant was not a person who “possesses a
registry identification card,” and he was not entitled to immunity from arrest. 6
6
Defendant maintains that constructive possession of a registry identification card is sufficient to
satisfy the statute’s “possesses” requirement, and urges this Court to accept a definition of
“possesses” that would require only dominion and control of a registry identification card. This
argument is contrary to the plain language of the statute as we have interpreted it, and it is
inconsistent with the clearly established law that permits police officers to arrest individuals who
-5-
We next address whether defendant is immune from prosecution. If defendant’s registry
identification card was reasonably accessible at the location of his prosecution, defendant would
meet the “possesses” requirement for immunity pursuant to § 4(a) despite the fact that he was not
entitled to immunity from arrest. Here, defendant’s production of his registry identification card
in the district court was sufficient. Accordingly, defendant met the statutory requirement of
possessing a registry identification card at the time of his prosecution and therefore, for purposes
of the “possesses” requirement defendant is immune from prosecution pursuant to § 4(a).
Our conclusion that defendant satisfied the “possesses” requirement in § 4(a) at the time
of his prosecution does not conclusively resolve the issue regarding whether defendant is entitled
to immunity from prosecution. Defendant still has one more hurdle to overcome to be entitled to
§ 4(a) immunity from prosecution; he must also establish that at the time of his arrest he was
engaged in the medical use of marijuana in accordance with the MMMA. MCL 333.26424(a).
Because this issue is not properly before us and the factual record is not sufficient for resolution
of whether defendant was engaged in the medical use of marijuana in accordance with the
MMMA, we remand for consideration of this issue.
In sum, we hold that defendant was not immune from arrest because his application
paperwork for a registry identification card was not reasonably accessible at the location of his
arrest. We further hold that because defendant did possess a registry identification card that had
been issued before his arrest when being prosecuted, he is immune from prosecution unless
evidence exists to show that his possession of marijuana at the time of his arrest was not in
accordance with medical use as defined in the MMMA or otherwise not in accordance with the
provisions of the MMMA.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
/s/ David H. Sawyer
commit misdemeanor offenses in their presence. Construing § 4(a) to provide immunity to any
person who merely makes the claim that they have a valid registry identification card, but is
unable to display it, is unworkable because it would eviscerate the ability to enforce the
prohibition against the unlawful possession of marijuana with respect to anyone who simply
makes a representation of entitlement to immunity without any proof of that status. If only
constructive possession of a registry identification card is required, police officers would have no
ability to evaluate the legitimacy of a claim of immunity made by individuals in possession of
marijuana.
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.