Medical Marijuana Laws and Lawyers

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 Has Marijuana Always Been Illegal?

Marijuana was legal in the United States until 1931, by which time 29 states had outlawed it. By the 1950s, marijuana was no longer considered to be a particularly dangerous drug, but it was perceived to be a “gateway” drug, one that leads the user to try other, more damaging drugs, such as cocaine or heroin.

In 2012, both public perception and the law began to swing the other way. Marijuana was recognized as a medicinal drug for certain medical conditions. From then on, states began to create medical marijuana systems: they legalized marijuana for medical purposes, licensed growers and sellers, and levied taxes on marijuana production and sales.

Today, most states have legalized medical use of marijuana, and about half of them have also legalized recreational use of the drug.

Which States Have Legalized Medical Marijuana?

In many states, those with qualifying medical conditions may buy and use marijuana for medical purposes. As of 2023, the following 12 states have legalized marijuana for medical use only:

  1. Arkansas
  2. Florida
  3. Hawaii
  4. Kansas
  5. Louisiana
  6. New Hampshire
  7. North Dakota
  8. Ohio
  9. Oklahoma
  10. Pennsylvania
  11. Utah
  12. West Virginia

Additionally, there are several states which allow for not only medical use but also recreationally. In those states, adults may purchase and use marijuana regardless of whether they need it for a medical condition. Many states began by legalizing medical marijuana and later legalized recreational use.

The following are the 24 states where recreational use has been legalized as of 2023:

  1. Alaska
  2. Arizona
  3. California
  4. Colorado
  5. Connecticut
  6. Delaware
  7. Illinois
  8. Maine
  9. Maryland
  10. Massachusetts
  11. Michigan
  12. Minnesota
  13. Missouri
  14. Montana
  15. Nevada
  16. New Jersey
  17. New Mexico
  18. New York
  19. Nevada
  20. Oregon
  21. Rhode Island
  22. Vermont
  23. Virginia
  24. Washington

Recreational use is also permitted in Washington D.C., but not on any property owned by the U.S. government (such as Capitol Hill).

How Do State Laws Vary for Users of Medical Marijuana?

Medical marijuana laws can vary quite a bit by state. All states have lists of what medical conditions qualify under the law to use medical marijuana. State laws vary as to what illnesses are treatable with medical marijuana. Common illnesses that qualify are:

  • ALS
  • Cancer
  • Crohn’s disease and other inflammatory bowel diseases
  • Epilepsy
  • Glaucoma
  • Intractable pain
  • Multiple sclerosis (and other conditions affecting muscle spasticity)
  • Post Traumatic Stress Disorder (PTSD)
  • Parkinson’s Disease

Some states may have much lengthier lists of qualifying conditions than others.

Other states choose not to list conditions explicitly. They state the requirements in general terms, such as “conditions that cause nausea, pain, seizures, or conditions that are terminal.”

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.

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

There are only four states that allow for no marijuana use or sale whatsoever. These are:

  • Idaho
  • Wyoming
  • Nebraska
  • 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. This means that federal authorities can, if they choose, prosecute marijuana sale, use, and possession even in states that have legalized it.

Prosecution of marijuana offenses has varied by presidential term. The Obama administration issued the “Cole Memorandum,” which states the federal government will not interfere in states that have legalized marijuana either medically or recreationally.

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

In 2022, the Biden administration reversed the Trump administration’s policies. A presidential proclamation indicated that all persons convicted of the federal crime of simple possession of marijuana would be pardoned.

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 it is medical marijuana may be a defense. However, there are limits:

  • Only certain states have legalized medical marijuana. The defense doesn’t apply if you are in a state that has not. Even if you live in a state where it is legal and you have the credentials to possess and use medical marijuana, if you are arrested with marijuana in a state where it isn’t legal, you can be prosecuted.
  • It is an affirmative defense. This means that if the police do not believe that you have the necessary medical certification, you can be arrested for it. You can use it later at trial as a defense.
  • 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 the distribution of marijuana can’t use a medical defense.
  • If you 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.

Do Medical Marijuana Laws Protect Me Outside of Criminal Law?

No. The defense of using marijuana medicinally applies only in the context of criminal drug possession charges. Individuals may still be terminated from jobs and evicted from apartments for marijuana use if the employer or landlord prohibits it.

However, employers and landlords do not have the right to require you to be drug tested for marijuana. This protects you from getting into trouble for using marijuana at times and in places where you have a right to decide your own affairs, such as when you are not working or off-site.

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 drug lawyer about your situation.

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