In a recent string of cases, the Montana Supreme Court has taken a harsh stand against protections and provisions contained in the former medical marijuana law. If SB423 is repealed in the upcoming general election on November 9, the legal landscape will be remarkably different for those who attempt to operate under I-148 in previous years.
These decisions also directly affect anyone who is currently or may eventually be charged for violating the former law. Under Montana law, anyone charged with a criminal offense is subject to the law in effect at the time at the time of the alleged offense. Because felony charges can be brought for up to five years from the date of the activity at issue, providers who were operating under the former law will be subject to the legal interpretations offered by the Montana Supreme Court today in these recent cases.
State v. Johnson, 2012 MT 101. Decided May 8, 2012.
The protections of the original medical marijuana law only apply when a patient obtains marijuana from his or her listed caregiver.
This case originated in Park County. On August 8, 2010, the defendant was pulled over during a traffic stop. The officer believed she may have been impaired while driving. At the time, the former medical marijuana law under I-148 was in effect. The driver was identified as a valid medical marijuana patient and was in possession of less than an ounce of marijuana. Upon further investigation, it came to light that the patient’s current medical marijuana caregiver did not provide the marijuana to the patient – rather the patient obtained marijuana from another source because the patients current provider, her father, was not yet in a position to provide marijuana because the grow operation was not yet up and running.
The driver was charged with criminal possession of a dangerous drug along with other charges including DUI. The driver was not charged for possession of drug paraphernalia because of the card status, but was charged with possession of marijuana because the source for her marijuana was not her listed caregiver.
The Justice Court in Park County found her guilty on the possession charge (as well as the other charges) and the matter was appealed to the District Court in Park County.
In district court, the driver filed a motion to dismiss the possession charge because as a medical marijuana patient, she could not be arrested or charged for possession under the current law at the time. The district court denied the motion and proceeded with the case. While the driver was found not guilty of some of the charges, she was convicted of possession. She appealed to the Montana Supreme Court.
The Supreme Court determined that despite the clear language of 50-46-201, when read in conjunction with the other provisions of the medical marijuana law, it said that the medical marijuana act limited patients to possession of marijuana provided by their listed caregiver. Therefore, marijuana a person possesses is not protected by the former law if it was obtained from a source that was not the patient’s caregiver.
The affirmative defense, located at 50-46-206, also was raised in the lower court however the Supreme Court ruled that the driver failed to prove the elements of the defense. It isn’t enough to simply raise it as a defense – it must be proven in court to be effective.
MMGA v. Corrigan, 2012 MT 146. Decided July 6, 2012.
Caregivers cannot provide marijuana to other caregivers or work for them and perform duties consistent with “medical use” on their behalf under the former medical marijuana law.
The factual basis for this case is somewhat complicated. Two couriers were stopped by law enforcement and charged with felony possession. The couriers wanted to introduce testimony at their trials that they were hired by caregivers and should have been protected by an area of the law called “agency.” Where an agent works on another’s behalf, he or she is protected by the law just like the employer is. The caregivers had worked out a transaction for the sale of marijuana between themselves, and because it was not clear if the medical marijuana act authorized caregiver-to-caregiver transactions, it was not clear if the caregivers could testify at trial without incriminating themselves. Unlike the typical cases going to the Montana Supreme Court seeking guidance on the provisions of the medical marijuana act, this case was a civil request seeking the court’s interpretation, as opposed to a criminal case.
The Supreme Court ruled that caregivers may not transact with other caregivers . In doing so, it relied on language of the former act found at 50-46-103(4)(a), which states that a caregiver, in order to obtain a card from the state, must sign a statement that he or she will only provide marijuana to qualifying patients who have named the applicant as caregiver. The counter argument, that no caregiver can ever provide marijuana to patients if seeds or plants cannot legally be acquired from any source whatsoever, was not persuasive to the Supreme Court in light of the “clear and unambiguous” language above. The further argument, that this rule is not changed when the caregivers are in an employment relationship does not change this restriction on the prohibition of providing marijuana to other caregivers. The Supreme Court applied this rule both to the sale or transfer of marijuana, as well as for relationships in which one caregiver grows marijuana for another caregiver.
State v. Pirello, 2012 MT 155. Decided July 20, 2012.
Hashish (and presumably kief) as well as hash oil are not considered useable marijuana under the former act, and are therefore not protected.
A driver in Mineral County was changing a flat tire in the median of Interstate 90. A law enforcement officer stopped to “assist” the driver and detected the order of burnt marijuana eminating from the vehicle, saw marijuana in the vehicle, and noticed the driver had red, watery eyes.
The driver was from the State of Washington. He was in possession of several baggies of marijuana, several joints, and two bottles of hash oil. The driver was charged with felony possession for the hash oil, misdemeanor possession for the marijuana, misdemeanor possession of paraphernalia, and DUI. The driver moved to dismiss the charge of felony possession for the hash oil, which was denied by the district court. The driver pled guilty to the remaining charges, but reserved the right to appeal the denial of the motion to dismiss, which was then appealed to the Montana Supreme Court.
On appeal, the driver claimed that the former medical marijuana law provided an exception for “usable marijuana” which included hashish (and hash oil) because it falls under the description “any mixture or preparation of marijuana.” In the alternate, he also claimed that the term itself was unconstitutionally vague.
The Supreme Court ruled against this interpretation. It relied on the definitions found in the Montana Controlled Substances Act, which defined marijuana and separately defined “hashish” as a separate drug. Hashish “as distinguished from marijuana, means the mechanically processed or extracted plant material that contains tetrahydrocannabinol (THC) and is composed of resin from the cannabis plant.” Section 50-32-101(4).
Despite the fact that the medical marijuana act defined usable marijuana as “the dried leaves and flowers of marijuana and any mixture or preparation of marijuana” in Section 50-46-102(10), the Supreme Court was unwilling to apply this definition to include hash oil or hashish. The basis for this distinction is that in order for something to be “usable marijuana” it must qualify as “marijuana,” which was defined not in the medical marijuana act, but in the criminal provisions found in the Montana Controlled Substances Act. Because hashish was separately defined, it did not qualify as “useable marijuana” as defined in the medical marijuana act itself.
Further, the argument that the medical marijuana act was unconstitutionally vague also fell short in the eyes of the Montana Supreme Court, because it determined these definitions were “clear and unambiguous” on their face.
What Does This Mean?
These cases have several important effects on activity under the former medical marijuana law. First of all, if SB-423 is repealed and the prior law goes back into effect, the landscape will be radically different than it was in 2009 and 2010.
The source of marijuana for a patient will determine whether or not it is legal to possess, regardless of patient status, and despite the plain protections for patients found in the law. Will patients be required to prove where they got their medical marijuana? We don’t know yet.
- Caregivers cannot obtain marijuana plants or seeds from anywhere or help one another in the event of crop failure, despite the fact that crop failure is fairly common, and everyone who grows marijuana has to get it from somewhere aside from divine intervention.
- Finally, hash, kief and hash oil are simply illegal under any circumstances. Given that nearly all forms of marijuana-infused edibles – favored by the medical community – are derived from keep or hash oil, it calls into question whether they can be produced at all without committing a felony.
Clearly the Supreme Court is unwilling to find workable solutions to difficult and important questions raised under medical marijuana laws. This means that we have to help the legislature create a workable solution, something we know from last session their leadership seems unwilling to do. Clearly Montanan’s want medical marijuana to be available to patients under certain circumstances, and patients are often unable to grow their own for a wide variety of reason. Just as clearly, the legislature and the courts are unwilling to make allowances for that process to take place. Until the voters take control of this issue, we should expect our elected officials to continue to work against the will of the people.
Marijuana laws are changing in our country and they will continue to change in Montana whether our elected officials understand it or not. Our governments, both state and federal, continue to deny the clear trend. In the end, medical marijuana will be a reasonable solution for those who need it. It is up to us to continue to soldier on in this battle until it becomes a reality. We owe it to the sick patients in the state to find a solution that will actually work. Our first task is to repeal SB-423. Then the challenge moves to the legislature to develop a law that isn’t riddled with impossibilities.
Patients need access. Providers need to be able to provide. It isn’t that complicated.
– Chris Lindsey, MTCIA President