While it is illegal in all 50 states to possess and use marijuana recreationally, 18 states have passed laws permitting possession and use of marijuana for medical purposes. These include: Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Typically these state laws remove criminal penalties for possession and use for qualified medical marijuana patients. These laws also protect referring physicians, primary caregivers, and sometimes people who grow or sell marijuana and paraphernalia in registered cooperatives or dispensaries.
What Conditions Qualify for Medicinal Marijuana Treatment?
In most states, a patient must have a “debilitating condition” to qualify for medicinal marijuana treatment. Some states enumerate such conditions (often including glaucoma, HIV/AIDS, symptoms associated with cancer and its treatment, cachexia or wasting syndrome, severe or chronic pain or nausea, seizures, and muscle spasms). Other states require a debilitating condition, but allow the recommending physician to decide which conditions qualify as such.
Qualifying as a Medical Marijuana Patient
Patients must first meet several requirements before they can gain protection under state medicinal marijuana laws. These usually include obtaining a physician’s referral, state registration, and staying within the legal limits on possession amounts and use. Some states allow minors to qualify as medicinal marijuana patients, if they meet additional requirements.
Physician referral
All states with medicinal marijuana laws require a physician’s recommendation before a patient can qualify as a protected medical marijuana user. Some states are considering changes to this law, which would make it more difficult to become a medical marijuana patient, such as requiring two or more independent physician recommendations.
State registration
After obtaining a physician’s referral or recommendation, most states require the patient to apply to be added to an confidential state registry. Patients are usually issued registry ID cards, and (in some states) are required to present the card to law enforcement upon demand.
A minority of states allow patients to use medical marijuana without registering, or do not have a registry, but this is rare.
Patients younger than 18 years old
About a third of medical marijuana states allow minors (who would otherwise qualify to use medicinal marijuana) to register as medical marijuana patients by meeting extra requirements. These requirements usually include gaining a parent or legal guardian’s written consent and agreement to serve as the minor’s primary caregiver. In this capacity, the parent must control the minor’s marijuana supply, frequency of use, and dosage.
Legal Possession Amounts
All states specify the amount of marijuana and number of marijuana plants that each registered patient may possess and grow. This is usually not more than a few ounces and plants, and legal penalties often apply to possession of over the specified amounts.
Medicinal use presumption
Some states have specifically enacted a medical use presumption. For example, in Delaware, as long as a registered patient possesses a valid registry ID card, and does not possess more than the state-specified amount of medical marijuana, the patient’s marijuana use will be presumed medicinal, and will not be subject to prosecution. However, this presumption may be rebutted if there is evidence that the patient’s use was not actually for the purpose of treating or alleviating the patient’s medical condition or symptoms.
Medical necessity defense for possessing over the legal amount
Sometimes a medical marijuana user possesses more than the legal maximum, and ends up being charged with illegal use. In a minority of states, this person can defend himself on the grounds that the larger amount was medically necessary. For example, the defendant might produce a doctor’s recommendation that the patient use the amount at issue. If the judge believes this argument, the patient may be acquitted of the charges, or face a reduced sentence.
Protection for Non-Patients
Most states also provide protection for referring physicians and primary caregivers. And some states also protect registered marijuana cultivators or dispensary operators.
Physicians
Most states legally protect referring doctors from criminal penalties and professional censure or discrimination (for example, from state medical accreditation boards or agencies), as long as the doctor abides by state-specific requirements. These protections extend only to referrals for genuine medical issues (not, for example, as a way to aid a healthy person gain access to recreational marijuana). Some states also require that a physician make only a certain amount of recommendations per year, or recommend medicinal marijuana only when no other treatment has worked for the patient.
Primary Caregivers
Most states also allow each patient to designate a primary caregiver (a person who assists medical marijuana patients with cultivation, dosage, and use). This person usually must be a state resident, an adult (at least 18 or 21 years old, depending on the state), and sometimes may have only one patient at a time (though this is not the case in all states – some states allow primary caregivers to have up to seven or more patients).
In many states, primary caregivers may be reimbursed for their expenses, but not paid for their services or for the marijuana that they grow. And in all states, primary caregivers may never use the marijuana they cultivate, possess, or assist their patients with.
To gain protection, primary caregivers often must register as a caregiver with the state, obtain a registry ID, and comply with state-imposed limits on cultivation and possession.
Collectives, Cooperatives, Growers, and Dispensaries
Patients are often allowed to cultivate a certain amount of marijuana for personal medical use. Often states will allow—or sometimes require—the primary caregiver to cultivate marijuana for the patient instead. Other states will allow patients to form collectives or cooperatives to grow medicinal marijuana. These entities are usually required to be nonprofit in nature (though they need not be incorporated nonprofits), and cannot sell medicinal marijuana to nonmembers.
While controversial, some states also allow people to register as medicinal marijuana growers. These people then sell their crops to dispensaries (which also must be registered with the state), which then sell medicinal marijuana to registered patients.
Because medicinal marijuana is not protected under Federal law, growers and dispensaries have recently gained Federal attention (in California especially), over concerns that they are contributing to the nation’s black market in marijuana, rather than solely providing marijuana for bona fide medicinal use.
Illegal Possession, Sale, or Use
A person may not knowingly or intentionally possess or use medicinal marijuana, unless such use is in accordance with the regulations described above. It is also illegal to fraudulently obtain or use a registry ID card.
In some states, such as Hawaii, even if the state-mandated conditions for medical marijuana use are met, a person may not use medical marijuana if the use will endanger the health or well-being of another person, or if the use is:
- in any moving vehicle, public transportation vehicle, or school bus (see Driving Under the Influence of Marijuana)
- in the user’s workplace
- on school grounds, or
- at a public park, beach, recreation center, youth center, or in another public space.
States vary in their approach to punishing illegal and prohibited uses, but most punish such violations as they would illegal possession and use, or by imposing enhanced penalties.
Effect on Minor Custody or Visitation
Most state statutes are silent on the effect medicinal marijuana use might have on parental custody or visitation. However, under Michigan law, a patient or primary caregiver cannot be denied custody or visitation of a minor child for acting in accordance with the medical marijuana laws, unless the activities can be shown to cause an unreasonable, clearly articulated, and substantiated danger to the minor.
If this issue applies to you, consult an experienced family law attorney in your area to discuss how such cases are usually handled in your local courthouse.
Unusual State Exceptions
Some states, Louisiana and Maryland specifically, have decriminalized medicinal marijuana use, but still allow patients to be prosecuted for marijuana possession under state law. In these cases, a defendant must attend court proceedings and prove that the defendant’s possession and use was medicinal in nature. This is an exception to most state medicinal marijuana laws, which protect patients from prosecution in the first place.
The Morales Law Firm would like to thank NOLO for sharing this information with us.
