State laws vary greatly as to the legality of medical marijuana. Some states provide no protection for the users of medical marijuana. In other states, medical marijuana has been legalized. However, even even in states where it is legal, there remain numerous restrictions on its sale and use. There are two main policy determinations for determining the ultimate scope of state medical marijuana laws:

  • Types of Provisions -Currently, there are four types of state programs that determine both for who and to what extent medical marijuana is legal. States 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 enlistment 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 states with an active program. (14 states)
    • Rescheduling – Most states mirror the federal scheduling system by naming marijuana a Schedule I drug, designating marijuana as a drug which has no currently accepted medical use in the United States. Some states have begun to reschedule marijuana as a Schedule II drug, which limits the sentences and penalties users can face on drug charges. (three states)
    • Physician Prescription – While similar to the rescheduling law, 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 patient. (thirteen states)
    • Medical Necessity – Medical necessity compliments the physician prescription program, but extends protection to criminal prosecution, wherein a medical marijuana user may raise the issue of medical necessity as a defense for possession or use. (nine states)
  • Types of Illness Recognized by States for Medial Marijuana Use
    • Cancer – twenty-one states
    • Glaucoma – nineteen states
    • Pain and Chronic Illness – eight states
    • HIV/AIDS -seven states
    • Seven states have laws that apply to all conditions
    • Four states do not specify any illnesses or symptoms to which their statutes apply

How Does Federal Law Affect State Laws?

A general rule is that when federal and state laws conflict, the federal law prevails. Therefore, since Congress bans all marijuana use, states and their residents are not immune from the federal government enforcing federal laws, even if the drug is permitted under state law.

Note that federal regulation is not limited to federal prosecution. State laws cannot force federal agencies or federal courts to change federal policy. Other federal agencies can be obstacles as well. For instance, the Treasury Department can require that banks deny loans to marijuana dispensaries or marijuana providers without assistance or consultation with the Justice Department.

As of December 2014, Congress has passed a budget provision that prohibits the use of federal funding to prevent state implementation of medical marijuana programs. Although the use of marijuana for any purpose is still illegal under federal law, passage of this law will limit the number of federal prosecutions in states that recognize medical marijuana at the budget was passed. Individuals and businesses in states that have not passed medical marijuana programs will not be protected. Note that this provision only limits interference with medical marijuana.

Should I Contact a Criminal Defense Lawyer?

Because medical marijuana laws vary so much between the states, it is important to understand the current status of the law in your particular 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 believe you have a medical defense, it may be beneficial to talk to a criminal defense attorney about your situation.