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 hasnt 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 isnt 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 .

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 .