Thomas G. WitkopLaw Offices

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Use of Medical Marijuana More Liberalized in Maryland

The general assembly has expanded the defense of medical use for marijuana.  Maryland certainly has not legalized the use of marijuana but it has acknowledged that the possession of very small quantities of marijuana for medical use should be taken into consideration by the courts.

More specifically, in a prosecution for the use of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.  This comes directly from the statute, MD Code Crim. Law. 5-601 Possessing or administering controlled dangerous substance (Maryland Code (2012 Edition).  A mitigating factor is not a defense but if the court finds that there is medical necessity, the maximum punishment upon conviction is a $100 fine.

The general assembly went further and now provides an affirmative defense for the possession of marijuana which states as follows, "(iii) 1. In a prosecution for the use or possession of marijuana under this section, it is an affirmative defense that the defendant used or possessed marijuana because:

A. the defendant has a debilitating medical condition that has been diagnosed by a physician with whom the defendant has a bona fide physician-patient relationship;

B. the debilitating medical condition is severe and resistant to conventional medicine; and

C. marijuana is likely to provide the defendant with therapeutic or palliative relief from the debilitating medical condition.

2. The affirmative defense may not be used if the defendant was:

A. using marijuana in a public place; or

B. in possession of more than 1 ounce of marijuana."

Clearly the use and possession of small amounts of marijuana is not legal in the state of Maryland but for the person who is sufficiently unfortunate to have a debilitating medical condition which is severe and resistant to conventional medicine and marijuana is likely to provide relief then at least the patient has access to what was hereto for illegal relief.  That being said, even the very sick can be arrested, prosecuted and go through the difficulty of a trial with the need to provide a somewhat difficult affirmative defense.  In short, the general assembly has opened the door for the use of small amounts of medical marijuana but clearly have not opened the floodgates.  Do not use or possessed marijuana unless you are willing to suffer through a prosecution and trial.
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