Medical Marijuana Legal Issues

There are several states that permit physicians to recommend the use of medicinal marijuana for the treatment of various medical conditions, including:

• Alaska;
• Arizona;
• California;
• Colorado;
• Connecticut;
• Delaware;
• Hawaii;
• Illinois;
• Maine;
• Massachusetts;
• Michigan;
• Montana;
• Nevada;
• New Hampshire;
• New Jersey;
• New Mexico;
• Oregon;
• Rhode Island;
• Vermont;
• Washington; and
• Washington D.C.

These jurisdictions have removed any criminal penalties associated with the possession and use of marijuana for medicinal purposes. With the exception of the State of Delaware, the cultivation of marijuana is also permitted by the patent or their primary caregiver.

However, the amount that may be grown is limited. Maryland has not yet legalized medicinal marijuana. However, medical use is a defense to a charge of marijuana possession in the state.

Any individual who is seeking to use medicinal marijuana under state laws should note that the cultivation and trafficking of marijuana is still illegal under federal laws. In addition, medicinal use is not a defense.

If a patient was acting in accordance with state laws, it will not be a defense to federal drug charges. The federal government, however, rarely acts on the possession or transport of small amounts of marijuana for personal use, with exceptions, of course.

Therefore, a patient who is acting in accordance with the laws of their state may not face any criminal charges.

How Much Medical Marijuana can Qualified Patients Possess?

The states that do permit the use of medicinal marijuana vary regarding the amount that a patient is permitted to possess at any given time. This may range from 1 ounce to 24 ounces.

The legal possession limits for medicinal marijuana by jurisdiction are:

• 1 oz: Alaska, Montana, Nevada;
• 2 oz: Colorado, D.C., New Hampshire, New Jersey, Vermont;
• 2.5 oz: Arizona, Illinois, Maine, Michigan, Rhode Island;
• 3 oz: Hawaii;
• 6 oz: Delaware, New Mexico;
• 8 oz: California; and
• 24 oz: Oregon, Washington.

There are two states that do not impose a possession limit of medicinal marijuana in ounces, Connecticut and Massachusetts. Connecticut allows a qualified patent to possess a one month supply.

Massachusetts allows a qualified patient to hold a sixty day supply of medicinal marijuana.

How Does a Patient Qualify for Medical Marijuana?

The conditions for which a patent will qualify for medicinal marijuana generally include:

• Glaucoma;
• Nausea related to chemotherapy for cancer or AIDS;
• Chronic pain; and
• Any condition that is characterized by seizures or muscle spasms.

Usually, a patient who has one or more of these conditions is required to have a note from their physician. In some states, two are required, especially when the patent is a minor.

Many states that allow the use of medicinal marijuana also require the patient to register with the state as well as keep a state-issued medical marijuana card on their person at all times.

How Do State Laws Vary for Users of Medical Marijuana?

The state laws vary greatly regarding the legality of medicinal marijuana. In some states, there is no protection for users of medical marijuana.

In other states, medical marijuana is legalized. It is important to note, however, that even in a state where medical marijuana is legal, there are restrictions on its sale and use.

There are two main policy categories for determining the scope of state medical marijuana laws, including:

• Types of provisions: Currently, there are 4 types of state programs that determine both for whom and to what extent medical marijuana is legal. A state may follow only one or all of the following programs:
  • Therapeutic Research Program (TRP): These programs allow for the use of medical marijuana but only after the patient enlists into a state program, with treatment and use monitored and studied by doctors and scientists;
    • These programs offer the least protection for users of medical marijuana, and are typically very rare, even in those states with an active program;
  • Rescheduling: The majority of states mirror the federal scheduling system by naming marijuana a Schedule I drug, which designates that marijuana is a drug which has no currently accepted medical use in the United States;
    • Some states have rescheduled marijuana as a Schedule II drug, which limits the sentences and penalties a user may face due to drug charges;
  • Physician prescription: While similar to the rescheduling laws, this program allows doctors to both discuss the benefits of marijuana as an alternate treatment and prescribe it as a treatment at the request of a qualifying patient; and
  • Medical necessity: Medical necessity compliments the program allowing physician prescriptions. It, however, extends protections to criminal prosecution, allowing a medical marijuana user to raise the issue of medical necessity as a defense for possession or use; and
• Types of illness recognized by states for medical marijuana use:
  • Cancer: Twenty-one states
  • Glaucoma: Nineteen states
  • Pain and chronic illness: Eight states
  • HIV/AIDS: Seven states
  • All conditions: Seven states have laws that apply to all conditions
  • No specified illnesses or symptoms: Four states.

How Does Federal Law Affect State Laws?

The general legal rule is that when a federal and a state law conflict, the federal law prevails. Due to the fact that Congress bans all marijuana use, states and their residents are not immune from the federal government enforcing federal laws, even if a drug is permitted under state laws.

In 2014, Congress passed a budget provision that prohibited the use of federal funding to prevent state implementation of medical marijuana programs. It is important to note that this provision only limits interference with medical marijuana.

What are the Types of Federal Medical Marijuana Prosecution?

Because marijuana is federally classified as a Schedule I drug, an individual who is involved in the cultivation, distribution, prescription, and marketing of marijuana is subject to prosecution under federal laws, even in a state that has legalized medical marijuana.

The following groups of individuals are typically prosecuted:

• Cultivators: Individuals who grow and cultivate marijuana for medical purposes, even if permitted by the state government, are subject to federal prosecution. These individuals are in violation of the Controlled Substances Act, which makes it illegal to grow, cultivate, or manufacture Schedule I drugs;
• Distributors: In states where medical marijuana has been legalized, certain distributors have state permission to distribute marijuana to those with prescriptions or medical cards. These operations vary in size and quality, but nearly all may be subject to federal prosecution for the distribution of a Schedule I substance; and
• Doctors: In states where medical marijuana has been legalized, a doctor may face legal issues. Typically, doctors will not face criminal prosecution, but because medical licenses are federally distributed, the government has the ability to sanction doctors.

Should I Contact a Drug Lawyer?

Due to the fact that medical marijuana laws vary so greatly by state, it is essential to understand the current status of the laws in your state. If you are a patient who uses medical marijuana and you are unclear regarding the applicable laws, or you have been charged with possession or use of marijuana and you believe you have a medical use defense, it is in your best interest to consult with a drug lawyer.

It may even be helpful to consult with your lawyer prior to requesting or using a prescription for medicinal marijuana to have an understanding of any possible consequences you may face in your state.