In 2011 the state legislature voted in favor of bill 308, which was a step, albeit a half step toward legalizing medical marijuana. The bill provided two ways for anyone charged with simple possession to defend their case. First, the bill provided an affirmative defense for any defendant that can show that he or she has a debilitating medical condition that has been diagnosed by a physician. Under this section of the law defendant also must show that he or she has an ongoing doctor-patient relationship. In other words, the defendant must actually be receiving regular treatment. Finally, the defendant must show that marijuana is likely to provide him or her with therapeutic relief from the medical condition. If all of these criteria are met then the judge may find that the state is barred from prosecuting the case and the defendant will receive a dismissal. This affirmative defense is not available to a defendant who has been charged with possessing over one ounce of marijuana, or has been charged with using the drug in public. The one ounce provision has been the source of a great deal of criticism, and rightly so. An ounce is an arbitrary number, and many people who use marijuana regularly to treat an illness can go through an ounce in a matter of days or weeks. A typical pharmaceutical prescription gives you a month supply, and an ounce of pot is hardly a month’s supply for a regular medical user.
A defendant charged with simple possession may also use the provisions provided in state bill 308 to ask for a mitigated sentence from the judge. Upon conviction of possession, the defendant and his or her defense attorney may present evidence of medical necessity. If the judge agrees with the defendant’s medical necessity argument, then the maximum sentence becomes a $100 fine. The drawback to both of these medical marijuana provisions is that all defendants who choose to use them are at the mercy of the judge. The statute provides a detailed definition for debilitating medical condition but it is still ultimately up to the judge. In addition, the law does nothing to prevent medical users from being arrested or cited by police. If medical marijuana were truly decriminalized, users would not worry about being arrested and placed at the mercy of the judicial system in the first place. If you have been arrested or cited for marijuana possession, contact the Maryland drug lawyers at The Herbst Firm for a free consultation. You may be entitled to certain legal defenses and mitigation for your case.