In many states, those with qualifying medical conditions may buy and use marijuana for medical purposes. As of 2018, the following states have legalized marijuana for medical use only:

Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maryland, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and West Virginia.

Additionally, there are a number of states which allow for not only medical use, but also recreational use. This means that adults may purchase and use marijuana regardless of whether they need it for a medical condition. However, they may, of course, still use it for medical conditions when necessary. Many states began with legalizing medical marijuana, and later legalized recreational use.

The following are states where recreational use has been legalized: Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington. Recreational use is also permitted in Washington D.C.

How Do State Laws Vary for Users of Medical Marijuana?

Medical marijuana laws can vary a lot by state. They may vary in who they allow to use medical marijuana, according to the medical conditions listed a qualifying under the law.

Even if an individual qualifies for medical marijuana use under the law, other restrictions apply. For instance, each state limits the amount of marijuana a qualifying individual may possess. In some cases, individuals may also be allowed to cultivate their own marijuana plants for personal use.

Additionally, some states, such as Louisiana and West Virginia, allow the use only of cannabis-infused products, not the smoking of marijuana.

State laws vary as to what illnesses are treatable with medical marijuana. Common illnesses that qualify are:

  • Cancer;
  • Glaucoma;
  • HIV/AIDS;
  • Multiple Sclerosis (and other conditions affecting muscle spasticity);
  • Epilepsy;
  • Crohn’s disease and other inflammatory bowel diseases;
  • Post Traumatic Stress Disorder (PTSD);
  • Parkinson’s Disease; and
  • ALS.

Some states may have much lengthier lists of qualifying conditions than others. Other states might choose not to explicitly list conditions. It can sometimes be more general, such as conditions that cause nausea, pain, seizures, or conditions that are terminal.

Some states have legalized CBD oil, which is a non-psychoactive oil derived from either marijuana or hemp. These states include: Alabama, Georgia, Iowa, Indiana, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, Wisconsin, and Wyoming.

There are only four states that allow for no marijuana or CBD use/sale whatsoever. These are: Idaho, South Dakota, Nebraska and Kansas.

How Does Federal Marijuana Law Affect State Marijuana Laws?

When federal law and state law differ, federal law rules. Marijuana remains an illegal, Schedule I drug according to federal law. Obviously, some states have changed their own laws to allow for marijuana use, regardless of the federal law. This means that federal authorities can, if they choose, prosecute marijuana sale, use and possession even in states that have legalized it.

Under the Obama administration, the Cole Memorandum was issued, stating that the federal government would not interfere in states that had legalized marijuana, either medically or recreationally.

However, under the Trump Administration, Attorney General Jeff Sessions rescinded this memorandum in January of 2018. The federal government can step in at any time and prosecute marijuana-related activities even in states that have legalized.

Are There Any Limitations to a Medical Marijuana Defense?

If you are charged with possession of marijuana, but claim that you need to use it medicinally because it helps your medical condition, saying that is it medical marijuana may be a defense, but this does have its limits:

  • Only certain states/jurisdictions have legalized medical marijuana. If you are in a state which has not, the defense doesn’t apply. Even if you live in a legal state, if you are arrested with marijuana in a state where it isn’t legal, you can be prosecuted.
  • It is an affirmative defense. You can use it at trial, but you can still be arrested first.
  • Even if you do live in a state that has medical marijuana, states have a limit as to how much marijuana a patient can possess. Marijuana possession over the limit is not protected.
  • This defense only applies to possession. An individual charged with distribution of marijuana can’t use a medical defense.
  • If you do live in a state with legal medical marijuana, you are generally required to be on the registry of individuals with qualifying medical conditions. If you are not on the registry, you may be arrested and have to claim your defense in court.

Using marijuana medicinally may be a defense for a possession arrest, but it cannot be relied on completely.

Will Medical Marijuana Laws Help Outside of Criminal Law?

No, the defense of using marijuana medicinally applies only in the context of criminal charges of drug possession. Individuals may still be terminated from jobs, evicted from apartments, and other civil issues for marijuana use.

In order to be protected, their state must provide legal protections for those who use medical marijuana. As of 2018, most states do not offer workplace protection for those using medical marijuana for an illness or disability. Except for Illinois, Arizona, and Delaware, which will only protect employees so long as their medical marijuana use does not impair their ability to work.

Should I Contact a Lawyer about My Use of Medical Marijuana?

Because medical marijuana laws vary so much between the states, it is important to understand the law in your state. If you are a user of medical marijuana and are unclear on the law, or have been charged with possession or use of marijuana and think you may have a medical defense, it would be beneficial to talk to a criminal defense attorney about your situation.