This article was originally published on the Marijuana Patients Organization site on August 31, 2011.
People v. Reed deals with the Section 4 affirmative defense. A qualifying patient cannot cultivate plants before he has a physician recommendation. Kolanek had previously ruled on this issue but the Reed opinion extends it. In Kolanek, the Court said that the physician recommendation must come before the arrest. The Reed court extends Kolanek by holding that the physician recommendation must come before the alleged criminal activity, e.g. cultivating plants in this case. In Reed the police investigation revealed that the defendant was growing plants in his backyard. The defendant later obtained a physician recommendation, and then was arrested. The Court found that was not entitled to a dismissal of the case since he was cultivating marijuana plants before he had his physician recommendation.
Also, the Reed court discussed whether defendants who lose their pretrial motions may still present the affirmative at trial. This Court held that a trial court may bar a defendant who has lost his pretrial motion from asserting the affirmative defense at trial. Specifically, the Court stated that a “trial court might be warranted in barring a defendant from presenting evidence or arguing at trial that he or she is entitled to the defense stated under §8(a).” “The relevant standard is whether, ‘given the undisputed evidence, no reasonable jury could find that the elements of the § 8 defense had been met.” This holding is consistent with the established procedure for other affirmative defenses.