Author, Jon Katz (Licensed in MD, DC and VA)
Washingtonian Magazine "Top Lawyers"
Martindale-HubbellÂ® Bar Register of Pre-Eminent
Defending criminal suspects, the Constitution, and the
MARKS & KATZ, LLC
Silver Spring, Maryland 20910
By now, Maryland's new medical marijuana law is well known, but is
still probably leaving many judges, defense lawyers, and prosecutors
scratching their heads to make sense of the law. Despite any novelty of or
imprecision in this law, it should benefit many defendants, rather than remaining a
THE MEDICAL MARIJUANA LAW PROVIDES BOTH A TRIAL DEFENSE AND A SENTENCING DEFENSE
The medical marijuana law provides both a trial defense (to counter a possession with intent to distribute charge, with the defense of simple possession for use for medical necessity) and a sentencing defense (to cap sentencing at a $100 fine).
The new law is found at Chapter 442, Acts 2003 (effective Oct. 1,
2003), and is codified into the existing marijuana and paraphernalia statutes, at Md. Code, Crim. Law art. § 5-601(c)(3) (marijuana possession) and
§5-619(c)(4)(ii) (drug paraphernalia). The law was passed as identical Senate and House bills numbered SB-0502 and HB-0702.
The medical marijuana provision of the marijuana possession statute
- In a prosecution for the use or possession of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.
- Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed marijuana because of medical
necessity, on conviction of a violation of this section, the maximum
penalty that the court may impose on the person is a fine not exceeding $100.Md.
Code, Crim. Law art. § 5-601(c)(3).
The medical marijuana provision for the possession of drug
paraphernalia closely tracks the above-quoted language from § 5-601(c)(3), as follows:
Notwithstanding paragraph (2) of this subsection, if the court
finds that the person used or possessed drug paraphernalia related to
marijuana because of medical necessity, on conviction of a violation of this
subsection, the maximum penalty that the court may impose on the person
is a fine not exceeding $100.
Md. Code, Crim. Law art. § 5-601(c)(3) (marijuana possession) and
Both the Senate and House bills list the law's purpose as follows:
FOR the purpose of allowing certain individuals in certain
marijuana prosecutions to introduce, and requiring the court to consider as a
mitigating factor, certain evidence related to medical necessity under
certain circumstances; establishing certain penalties under certain
circumstances; making the provisions of this Act severable; and
generally relating evidence of certain medical necessity in marijuana-related
MARIJUANA IS MEDICINE
Before addressing the legal implications of this new law, it is
important to understand the medicinal relevance of marijuana.
The Maryland bench now has plenty of judges who grew up in the
generation where marijuana smoking was almost as common as
the same goes for jurors. The judges and jurors who have personal or
indirect experiences with marijuana will likely be easier to educate
for marijuana necessity defenses, and often will agree that marijuana is
hardly more harmful than alcohol, if at all. For defense lawyers without
direct or indirect marijuana experience, this law's passage makes it all the more
important to understand the medicinal and physiological implications of
Marijuana is medicine, with THC as its drug ingredient. Marijuana
can relieve physical pain (including back pain and nausea from
chemotherapy), psychological pain, and, it has been documented, asthma (by expanding
the lungs for easier breathing) and glaucoma (by reducing eye pressure) and
debilitating muscular diseases. Marijuana also helps stimulate
appetite, which is often critical for chemotherapy patients. Willingly or not,
the federal government many years ago designated a small number of people
who to this day receive federally-grown marijuana to alleviate their diseases.
Once the federal government banned marijuana early in the twentieth
century (and even banned domestic farming of the marijuana hemp crop to
harvest the plant for such non-drug uses as rope, canvas, and paper),
the federal government has politicized marijuana to the point that to this
day marijuana is not scheduled under federal law as a drug that may be
prescribed by physicians. Marijuana remains federally banned for
prescription purposes, while doctors remain free to administer cocaine,
heroin, and morphine for medicinal use.
Anti-marijuana people tout the availability of the prescription
Marinol, which contains the same THC drug ingredient found in
However, medicinal marijuana advocates insist that Marinol is seriously
inferior to marijuana, pointing as an example to chemotherapy patients
whose nausea can prevent them even from keeping down a Marinol tablet long
enough for it to absorb into the body, and pointing out that marijuana
provides quicker relief by going into the bloodstream more quickly than a
MAKING SENSE OF THE MEDICAL MARIJUANA LAW
Defense lawyers have the manageable challenge of transcending any
puzzlement that the medical marijuana law might initially engender, and
the jokes that the law might at first spur (including images of Cheech and
Chong and the Three Freak Brothers).
This law is a serious one that was not passed by a bunch of
longhaired tie-dyed potheads, but by a majority of legislators in suits and a
Republican governor who fended off Bush administration urgings to veto
the bill. This law recognizes the disingenuousness of politicizing the
medical use of marijuana at the expense of sick people who benefit tremendously
from using it. Moreover, this law is a natural step beyond the long
recognition in Maryland law that marijuana simply is not as dangerous to society
and marijuana's users as other street drugs. For that reason, marijuana
possession has long carried a one-year maximum jail penalty, where
other illegal drugs carry a four-year penalty. Felonious marijuana possession
(absent huge quantities) carries a maximum five year penalty without
any statutory minimums, whereas other drugs carry much higher initial
penalties, and mandatory minimum prison sentences for subsequent offenses.
DETERMINING WHETHER TO MOUNT A MEDICAL MARIJUANA DEFENSE
Mounting the best medical marijuana defense will ordinarily be
costly, calling for the testimony of the defendant's treating physician (or an
evaluating physician if the defendant had no personal physician), and
sometimes the testimony of a medical marijuana expert if the treating
physician lacks sufficient knowledge about marijuana's medicinal
relevance to the defendant.
The director of a Maryland physicians group recently advised
physician testimony to support a medical marijuana defense, based on
concerns for the federal law's prohibition against physicians
recommending marijuana. However, when a physician testifies that marijuana use was
medically necessary, that by no means shows that the physician
recommended the marijuana. Moreover, the United States Court of Appeals for the
Ninth Circuit has held that physicians cannot be penalized for recommending
marijuana use in California, whose state law makes medicinal marijuana
use legal. Conant v. Walters, 309 F.3d 629 (9th Circ. 2002), cert. denied,
U.S. ___ (Oct. 14, 2003).The Supreme Court recently denied certiorari
review of this Ninth Circuit ruling.
Because of the significant expense of producing the medical reports
and testimony of medical witnesses for a marijuana defense (particularly
for the Public Defender's Office), hopefully judges will routinely grant
postponements for sentencing hearings so that defendants do not need to
harbor the expense of preparing for a medical marijuana sentencing
before knowing if there will be a conviction. Of course, this postponement
option does not apply to defendants charged with possession with intent to
distribute who want to show the factfinders that the marijuana was for
simple possession due to medical necessity.
The initial meeting with our marijuana defense client is the time
to start exploring the possibility of a medical marijuana defense. Some
medicinal marijuana users readily acknowledge they are using marijuana
for medicine. However, many more medicinal marijuana users either do not
realize they are self-medicating, or are in denial that they are doing so. The
same goes for the many alcohol users who think their use is recreational,
but who actually are alleviating their psychological pain with liquor.
Sometimes a medical and psychological evaluation will be advisable to get further
to the root reason for the marijuana use.
Evaluating our clients' reasons for using marijuana is not an
effort to "fabricate" a medical marijuana defense, but is now a necessary
exploration for just about every marijuana defendant.
MAKING THE MEDICAL MARIJUANA DEFENSE MORE AFFORDABLE
Most marijuana defendants will not have the funds to hire a
physician to testify at sentencing. For them, their alternatives are to introduce
the physician's medical report at sentencing, possibly accompanied by a
learned treatise that the report is shown to rely upon. For defendants who
cannot even afford a physician's written report, they have available a wide
array of persuasive and scholarly reports on the medical benefits of
marijuana. Starting points can include the Lindesmith Center (go here first)
www.dpf.org and www.dpf.org/marijuana/medical/index.cfm, the
Marijuana Policy Project (www.mpp.org and www.mpp.org/medicine.html), and the
National Organization for the Reform of Marijuana Laws (www.norml.org and
www.norml.org/index.cfm?Group_ID=3376). Lawyers can get a primer on the
medicinal benefits of marijuana by reading marijuana: The Forbidden
Medicine, by Harvard Medical School Professor Lester Grinspoon, M.D.,
and James Bakalar, J.D. (excerpts available at www.rxmarijuana.com).
Support for the benefits of marijuana over Marinol is available at
www.books.nap.edu/html/marimed/ch4.html (showing, e.g., that some
patients' bodies reject Marinol).
Maryland's medical marijuana law was a compromise between those who
wanted to legalize medical marijuana use outright, and those opposed to going
that far. This law provides a defense not only against jail for marijuana
possession, but also a defense against prosecutions for possession of
marijuana with intent to distribute. The law helps break down the
politicization of marijuana that has prevented it from being federally
approved for medicinal prescription purposes.
NOTE: This article appeared in the October 2003 newsletter of the
Maryland Criminal Defense Attorneys Association.
First case where med mj patient is fined under new
Woman: Pot works better than THC pills
Publish Date: 04/07/04
By George Dorsey
FREDERICK -- A new Maryland law which blocks incarceration for
users -- if medical necessity is proven -- was used
for the first time this week in Frederick County.
Frederick County Circuit Court Judge John H. Tisdale granted Jodi A.
32, of Frederick probation before judgment for
possession of marijuana after her attorney, Dino Flores, convinced
court and assistant state's attorney, John Discavage,
that smoking marijuana aided Ms. Delli's pain management.
Mr. Flores said his client had obtained a letter from her doctor which
suggested marijuana helped her fight severe and constant
pain better than pain pills. Ms. Delli has a prescription for a legal
medication containing THC, the intoxicating substance in
marijuana, but her doctor noted that smoking marijuana seemed to ease
pain better than the prescribed pills.
Mr. Flores said her ailment is related to "female problems" and said
marijuana allowed her to function at a higher level than
other prescription products.
Mr. Flores said the issue of medical necessity would be difficult to
without corroboration from a medical doctor. He said she
has brutal, on-going pain which is eased by marijuana.
Maryland does not permit medical use of marijuana, Mr. Flores said.
He said his client was granted probation before judgment with a
medical necessity. Under this new law, the maximum
would be a $100 fine. Without a showing of medical necessity, the fine
be up to $1,000 and one year of incarceration.
Ms. Delli was arrested Nov. 12, 2003, by Frederick police who had
search warrant based on neighbors' complaints of
marijuana smells. Marijuana and marijuana paraphernalia were seized by