PEOPLE OF MI V BENJAMIN CURTIS WALBURG
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 10, 2011
Plaintiff-Appellant,
v
No. 295497
Ottawa Circuit Court
LC No. 09-033711-FH
BENJAMIN CURTIS WALBURG,
Defendant-Appellee
Before: TALBOT, P.J., and SAWYER and M. J. KELLY, JJ.
PER CURIAM.
The prosecution appeals as of right from an order dismissing a charge of delivery and
manufacture of marijuana based on the Michigan Medical Marihuana Act1 (“MMMA”). We
reverse and remand. This appeal has been decided without oral argument.2
Benjamin Walburg was charged with the delivery and manufacture of marijuana3
following the discovery of marijuana plants in his home.4 At the time of his arrest, Walburg did
not have a registry identification card as provided for pursuant to § 4 of the MMMA.5 Walburg
claimed that he used the marijuana to treat a severe anxiety disorder and insomnia and did obtain
an affidavit from a physician, after his arrest, regarding Walburg’s therapeutic use of marihuana.
In granting Walburg’s motion to dismiss, the circuit court concluded that Walburg was not
required to have a valid registry card to assert an affirmative defense in accordance with § 8 of
the relevant statutory provision.6
1
MCL 333.26421 et seq.
2
MCR 7.214(E).
3
MCL 333.7401(2)(d)(iii).
4
Walburg disputed the number of plants recovered.
5
MCL 333.26424.
6
MCL 333.26428.
-1-
Although the prosecutor challenges this determination, this Court recently addressed this
issue and has ruled in accord with the circuit court’s determination.7 Another panel of this Court
ruled, in relevant part:
[T]he 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.
The plain language of the MMMA supports this view. Section 4 refers to a
“qualifying patient who has been issued and possesses a registry identification
card” and protects a qualifying patient from “arrest, prosecution, or penalty in any
manner . . . .”7 MCL 333.26424(a). On the other hand, § 8(a) refers only to a
“patient,” not a qualifying patient, and only permits a patient to “assert the
medical purpose for using marihuana as a defense to any prosecution involving
marihuana . . . .” MCL 333.26428(a). Thus, adherence to § 4 provides protection
that differs from that of § 8. Because of the differing levels of protection in
sections 4 and 8, the plain language of the statute establishes that § 8 is applicable
for a patient who does not satisfy § 4.
_________
7
A “[q]ualifying patient is defined as “a person who has been diagnosed by a
physician as having a debilitating medical condition.” MCL 333.26423(h).8
Contrary to the prosecution’s contention, Walburg was not required to possess a registry
identification card in order to assert an affirmative defense in accordance with § 8 of the
statutory provision.9
The necessity of possession of a valid registry identification card is the sole issue set
forth in the prosecution’s statement of question on appeal.10 While we are not required to
address additional arguments by the prosecutor not contained within the statement of questions11,
7
People v Redden, ___ Mich App ___; ___ NW2d ___ (Docket No. 295809, issued September
14, 2010).
8
Slip op at 10.
9
MCL 333.26428(a) [“less than 5 kilograms or fewer than 20 plants”].
10
MCR 7.212(C)(5).
11
People v Anderson, 284 Mich App 11, 16; 772 NW2d 792 (2009).
-2-
in this instance we elect to do so because sufficient facts are available and the assertions involve
a question of law.
The prosecutor argues that Walburg could still be prosecuted because he had 25 plants,
which allegedly exceeded the statutory amount. The prosecutor bases this assertion on the
statutory language contained in § 4 of the MMMA, which provides in pertinent part:
(a) 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
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. . . . [Emphasis added.]
The statutory section relied on by the prosecutor is inapplicable. The correct statutory provision,
§ 8, permits for the possession of a “quantity of marihuana that was not more than was
reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of
treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the
patient’s serious or debilitating medical condition.”12 Contrary to the prosecutor’s contention,
this Court has determined:
[T]he plain language of the statute does not support that the amount stated in § 4
is equivalent to the “reasonably necessary” amount under § 8(a)(2). Indeed, if the
intent of the statute were to have the amount in § 4 apply to § 8, the § 4 amount
would have been reinserted into § 8(a)(2), instead of the language concerning an
amount “reasonably necessary to ensure . . . uninterrupted availability . . . .”
MCL 333.26428(a)(2). Without any evidence on this element of the affirmative
defense, the district court could not have properly found the affirmative defense
established as a matter of law. There was a colorable question of fact concerning
whether the amount possessed was in accordance with the statute.13
Based on this reasoning, the limitation of § 4 is not applicable and the quantity of plants
possessed is not conclusive. Unfortunately, the Legislature neglected to define the term
12
MCL 333.26428(a)(2).
13
Redden, slip op at 14.
-3-
“reasonably necessary” within the statute14, leaving it open to interpretation based on the
individual circumstances in each case.
Yet, because this Court has recently made a determination regarding the relevant
statutory language, we must conclude that Walburg cannot submit his having obtained a
physician’s approval of use subsequent to his arrest to raise the affirmative defense. The
applicable statutory section15 provides, in relevant part:
(a) [A] patient . . . may assert the medical purpose for using marihuana as
a defense to any prosecution involving marihuana, and this defense shall be
presumed valid where the evidence shows that:
(1) A physician has stated that, in the physician's professional opinion,
after having completed a full assessment of the patient's medical history and
current medical condition made in the course of a bona fide physician-patient
relationship, the patient is likely to receive therapeutic or palliative benefit from
the medical use of marihuana to treat or alleviate the patient's serious or
debilitating medical condition or symptoms of the patient's serious or debilitating
medical condition;
(2) The patient . . . [was] . . . in possession of a quantity of marihuana that
was not more than was reasonably necessary to ensure the uninterrupted
availability of marihuana for the purpose of treating or alleviating the patient's
serious or debilitating medical condition or symptoms of the patient's serious or
debilitating medical condition; and
(3) The patient . . . [was] engaged in the acquisition, possession,
cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or
paraphernalia relating to the use of marihuana to treat or alleviate the patient's
serious or debilitating medical condition or symptoms of the patient's serious or
debilitating medical condition.
(b) A person may assert the medical purpose for using marihuana in a
motion to dismiss, and the charges shall be dismissed following an evidentiary
hearing where the person shows the elements listed in subsection (a). [Emphasis
added.]
This Court has just recently interpreted the statutory language as follows:
The primary substantive question . . . is how to interpret the requirement in
MCL 333.26428(a)(1), that “[a] physician has stated” the medical benefit to the
14
MCL 333.26423.
15
MCL 333.26428.
-4-
patient. We conclude that “has stated” requires that the physician’s opinion occur
prior to arrest. First, because the term is past tense, the initiative must have
intended that the physician’s opinion be stated prior in time to some event. That
even would reasonably be “any prosecution involving marihuana,” MCL
333.26428(a), for which the defense is being presented. Thus, because the arrest
begins, the prosecution, the physician’s opinion must occur prior to the arrest.
Furthermore, § 8(a)(1) speaks of a physician stating that “the patient is
likely to receive therapeutic or palliative benefit from the medical use of
marijuana [sic].” (Emphasis added.) Thus, the language contemplates a situation
where a physician, at the time of providing the statement, is envisioning the future
possession and use of marijuana and rendering an opinion that it will benefit the
patient when it is later used.
The interpretation is also consistent with the fact that the right to bring a
motion to dismiss . . . requires a showing at an evidentiary hearing of “the
elements listed in subsection (a).” It would not make sense to permit someone to
“show the elements in subsection (a),” which requires that a physician “has
stated” the benefits, by bringing a physician to the motion hearing to state, for the
first time, that the defendant would receive such benefit.16
Because we are bound by the holding of this decision17 and Walburg did not obtain a physician
statement before his arrest, we reverse the dismissal of the charges and remand to the trial court
for further proceedings.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Michael J. Kelly
16
People v Kolanek, ___ Mich App ___; ___ NW2d ___ (Docket No. 295125, issued January
11, 2011), slip op at 5-6.
17
MCR 7.215(J)(1); Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996).
-5-
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.
