What Are The Legal Rights Of Medical Marijuana Patients?

by Five Fantastic Lawyers™ on June 26, 2013

(US law/general) The legalization of medical marijuana has created a number of complex legal issues on both the state and federal levels. The laws prevent the prosecution of people who have a recognized medical condition and who have conformed to the laws of the state. This often includes registering with a central agency and carrying a medical marijuana card or license. Medical marijuana patients have a few basic legal rights under these laws.

Possession of Marijuana

The primary legal right of individuals who qualify for medical marijuana is protection from prosecution due to possession of the drug. States generally have strict and often varying limits on the amount of marijuana a patient can possess at any one time. This is as little as a single ounce in states like Montana and as high as 24 ounces in others like Oregon. Police can and do arrest people who regularly possess more than this amount in order to prevent medical users from becoming distributors. Patients are allowed to possess the marijuana even while in public as long as all other requirements are met, such as registration with the state.

Home Cultivation

Many of the states that have legalized medical marijuana give qualified individuals the right to cultivate the plants in their own home or yard. Each state has different restrictions that every person must follow. For instance, Arizona allows cultivation only if a person cannot reach a local dispensary. These individuals can grow the plants only in a locked and enclosed facility. Most states allow qualified residents to grow anywhere from 6 to 16 marijuana plants. Additionally, states like Colorado and Oregon limit the number of mature plants a person can possess at any one time. Some locations require residents to register or apply for a license in order to grow the plants.

Use of Marijuana

Medical marijuana patients are protected from prosecution for using or ingesting the drug. The majority of states use the same rules regulating cigarette use to restrict marijuana use. Patients have the right to smoke marijuana in the home. Patients can also use any derived forms of marijuana such as oils. The actual right to smoke marijuana in an outdoor and public area like a park or beach is different in each region. Patients do not have the right to smoke marijuana within 1,000 feet of a school. It is also not permitted in states like California if a person is operating a motor vehicle. Local law enforcement in each city generally handles public use of marijuana differently.

Affirmative Defense

Medical marijuana patients in states like Alaska have the right to an affirmative defense if an arrest is made. This is primarily done to provide protection to individuals who are not carrying a medical marijuana card at the time of an arrest. It is also available in states that have no statewide registry or patient card program. The affirmative defense allows a person arrested for marijuana possession to claim medical necessity. This will prevent a conviction if the patient can show an approved medical condition. The right to use an affirmative defense will not prevent an arrest.


Although many states have legalized medical marijuana and provided residents with legal protections, it is important to understand that these do not apply at a federal level because of the supremacy clause. This clause states that the rules of the federal government always override the rule of states and local municipalities. Marijuana is still an illegal substance under federal law. This means that federal authorities could come into a state and arrest or prosecute individuals who possess marijuana even though possession is legal under local laws.

Peter Wendt is a blogger with a background in law. If you believe your rights as a medical marijuana patient have been infringed on, Wendt highly recommends visiting robertmphillips.com

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