Michigan Medical Marihuana Act

Medical Marihuana Caregiver Prosecuted Without Criminal Charges

Man held unconstitutionally, discovers cops failed to cite a violation of law

[Updated Oct 25, 2018 9:35 PM PDT]

Bay County, Mich. ~

Since August 8, 2018, outspoken medical marihuana advocate and caregiver, Ted Visner, has been held in the Bay County Jail for the past 76 days without a specified criminal charge and without the opportunity to bail out of custody. Meanwhile, a related case that has been manufactured against Visner has been called ready for trial beginning on Tuesday, October 23, by Bay County Circuit Court Judge Harry P. Gill. Visner has been unable to mount a defense from his jail cell and has been forced, out of necessity, to represent himself as a “pro-se” defendant vs the Bay County Prosecuting Attorney’s Office.

Visner’s troubles began in August of 2017 when Bay County Sheriff’s Deputy, Detective Barry Gatza working on special assignment with the Bay Area Narcotics Enforcement Team (BAYANET) made Visner the target of undercover sting operation.

On October 11, 2017, while in the middle of a harvest, 60 officers descended upon Visner’s home as part of a 5:30 AM “no-knock” raid. The purpose of the intrusion was to execute a search warrant requested by Gatza. The outcome of the search was Visner’s first arrest.

Gatza filed 7 separate counts that cited the penalty described in subsection 2 of MCL 333.7401(2)(d)(iii). The correct citation for the specified violation is described in subsection 1 of MCL 333.7401(1). The descriptors “CONTROLLED SUBSTANCE – DELIVERY/MANUFACTURE MARIJUANA are the descriptors found in the chapter heading of 333.7401.

Below is an example of the syntax deployed by Michigan law enforcement agencies and prosecuting attorneys. The pattern and practice is clear. Law enforcement agencies and prosecuting attorneys are improperly citing the penalty described in subsection 2 per MCL 333.7401(2)(d)(iii) and ignore any reference to a specified violation as described in subsection 1.

Detective Gatza’s COMPLAINT FELONY of Visner made October 11, 2017.

     COUNT 1:  CONTROLLED SUBSTANCE – DELIVERY/MANUFACTURE MARIJUANA
                       did deliver the controlled substance marijuana; contrary to MCL; 333.7401(2)(d)(iii).
     FELONY:  4 Years and/or $20,000. Unless sentenced to more than 1 year in prison, the court
                       shall impose license sanctions pursuant to MCL 333.7408a.

None of the 7 marijuana felony complaints against Visner identify him as a registered caregiver with LARA and a MMMP cardholder.

Shortly after his October 2017 arraignment, Visner discovered all 7 marijuana counts did not cite the specified violation described in subsection 1 per MCL 333.7401(1) and as required per Michigan Court Rules MCR 6.101. The failure to cite the specified violation is a serious matter. Anyone who has been prosecuted and convicted under MCL 333.7401 needs to review their charging documents.Citing 333.7401(1) reads as follows:


Sec. 7401 (1) “Except as authorized by this article… / / …  A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.”

The failure to properly cite the specified violation is even more concerning when Assistant Prosecuting Attorney, Bernard J. Coppolino also fails to cite the specified violation of subsection 1. The felony complaint to the felony charging information both read exactly the same.

Coppolino’s charging information reads as follows:

           COUNT 1:  CONTROLLED SUBSTANCE – DELIVERY/MANUFACTURE MARIJUANA
                              did deliver the controlled substance marijuana; contrary to MCL; 333.7401(2)(d)iii.
            FELONY:  4 Years and/or $20,000. Unless sentenced to more than 1 year in prison, the court 
                             shall impose license sanctions pursuant to MCL 333.7408a.

At first glance, most would not notice the semi-colon between “MCL” and “333.7401.” It’s out of place. Remove the semi-colon and move the citation together. The proper statuatory citation should read “MCL 333.7401(1).”

Michigan Court Rules explains in MCR 6.101 THE COMPLAINT, subsection (A) …The complaint must include the substance of the accusation against the accused and the name and the statutory citation of the offense.

The charges against Visner cite the penalty in subsection 2 (marijuana) (d)(iii). It is associated with violating MCL 333.7401. Without a properly cited felony complaint referenced, Visner is unable to confront his acuser. A right guaranteed under confrontation clause of the Sixth Amendment.

Please share this information with friends and family and others who may have been harmed and denied a fair trial.

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