Legal Problems &
“Gray Areas”
Some
of the most glaring – and still-unanswered –
questions raised by Montana’s law include the
following:
Must a Patient Be “Registered”
with the State?
Montana’s
medical marijuana law offers a clear “affirmative
defense” whether a patient is formally registered
with the state or not. But this feature of the
law has never been tested. A number of
unregistered Montanans have been arrested and
prosecuted since passage of the law in 2004, but none of
those cases ever established a precedent on this
question. Of the 323 patients who have been
registered with the state, only 1 has experienced arrest
and prosecution; that case also failed to produce a test of
the affirmative defense (the issue in this case concerned
possession-quantity limits, to which the patient pled
guilty). While a number of registered patients have
had occasion to be verified by law enforcement agencies
– and even the federal DEA has been involved at times
– no registered patient possessing marijuana
within the limits specified by the Montana law has ever yet
been arrested.
Do Seeds and Seedlings with No Medicinal
Value Count?
The
law clearly specifies that patients and caregivers may
possess no more than 6 “plants” each –
but it does not clarify whether this limit applies only to
fully mature and female, medicine-bearing plants or whether
it applies equally to small seedlings with no medicinal
value. This question hasn’t yet arisen in any
court. Similarly, the question of the weight of seeds
in addition to dried medical marijuana has never been
tested in court, perhaps because it has been so rare for a
registered patient or caregiver to have a law enforcement
problem in the first place.
What about Just-Harvested Medicine
that’s Temporarily Over-Weight?
The
health department’s interpretation of the law’s
clear language on this point is that the 1 ounce possession
limit applies only to dried marijuana that can be
consumed medicinally. But the health department is
not a law enforcement agency, and its
interpretation – while of probable interest to a
court, and while a literal reflection of what the law
itself says – isn’t necessarily the same as
what a court would decide. This question has not yet
been tested. As any experienced patient or caregiver
knows, 1 ounce of dried medical marijuana, ready for use as
medicine, would have weighed as much as 3 or more ounces
when first harvested for drying and curing. How a
court might decide on a case involving still-wet marijuana
weighing more than 1 ounce remains to be seen. For
many patients, 1 ounce provides merely a few days of
medicine – just as it does under the federal
government’s IND program. This is one reason
why Patients & Families United
advocates improving the law on this detail (see Our
Mission for more information).
Transporting/Delivering Medicine from a
Distant Caregiver
Registered
patients are allowed under the law to possess a certain
amount of marijuana – and so are caregivers.
But it appears to be technically illegal under Montana law
for a patient’s relative or friend to pick up medical
marijuana from a caregiver to bring it to the
patient’s bedside. This is a fundamental flaw
in Montana’s law that Patients & Families
United hopes to fix, because many patients are too
sick to leave their homes, and their caregivers don’t
always have the time and means to make deliveries.
This predicament can occur frequently because of the
law’s strict constraints on possession quantities
– it is not uncommon for a patient to need twice as
much medical marijuana every week as the law allows him/her
to possess at any moment. To our knowledge, no
arrests involving this question have ever occurred.
There is no problem-free means of shipping medical
marijuana. Shipments via the post office require a
warrant before they can be opened. Shipments via
carriers such as United Parcel Service and Federal Express
do not require warrants. All these shipments
involve technical violations of federal law. We know
of several instances where searches have occurred, and in
all but one of these, after law enforcement verified with
the state that both the caregiver and patient involved were
registered and legal, the shipment was allowed to go
through. In the one instance where the federal DEA
intercepted a shipment, no prosecutions occurred, but the
agency did follow its rules and confiscated the
medicine.
Can Patients on Parole or Probation Use
Medical Marijuana?
The
vast majority of medical marijuana patients and caregivers
are ordinary, law-abiding citizens. Indeed,
registered patients/caregivers may well lead
“cleaner,” more law-abiding lives than
the Montana population at large. But cancer, Multiple
Sclerosis and other qualifying medical conditions
don’t limit themselves to law-abiding citizens, and
even the most law-abiding people on the planet can
encounter legal problems. Thus, this question applies
to an infinitesimal number of people – but it is
important, nonetheless.
And the question remains unresolved.
Patients & Families United knows of
one case in which a Montanan on probation has been ordered
not to use medical marijuana for the duration.
However, the patient in question was not registered to be a
patient at the time of the arrest – and the decision
denying the use of medical marijuana is being
appealed. It is similarly unclear whether it would be
a violation of parole or probation for a registered
patient’s required urine test (if any) to reveal the
otherwise legal use of medical marijuana.
Can a Patient Be Fired for Failing a
Job-Required Drug Test?
Montana’s
law protects patients, caregivers and especially physicians
from suffering any adverse consequences as a result of
following the medical marijuana law. The law’s
statements to this effect include that a patient or
caregiver “who possesses a registry identification
card” may not be “penalized in any
manner or denied any right or privilege, including but not
limited to civil penalty or disciplinary
action…”
Please
contact Patients & Families United
immediately if you hear or know of any instances where a
registered Montana patient or caregiver may be suffering a
violation of this important protection. Email us at
info@mtmjpatients.org.
Can
a Patient Lose Custody of His/Her Children Because of
Medical Marijuana?
We
know of no instance of such a problem occurring for any
patient. If you know otherwise, please email us at
info@mtmjpatients.org.