The Legal Dangers of Exceeding the Legally Permitted Medical Marijuana Amounts – NRS 453A
In Nevada, if one has a valid medical marijuana card, one is exempt from state prosecution for possession, delivery or production of marijuana if possession was limited to one ounce of medical marijuana, three mature marijuana plants and four immature marijuana plants. Recently with the new legislation making medical marijuana dispensaries legal, Nevada legislature amended this amount by raising it to two and one-half (2.5) ounces of usable marijuana in any one 14 day period and twelve (12) marijuana plants, irrespective of whether the marijuana plants are mature or immature, and a maximum allowable quantity of edible marijuana products and marijuana infused products as established by regulation of the Division. Measures become effective on October 1 following the end of the legislation session, unless otherwise specified in the bill.
What has come to our firm’s attention as of lately is the fact that some medical marijuana patients have been issued prescriptions to grow and possess more than what is legally allowed. This places patients in a situation that if they do grow and possess more to meet their medical needs, the law does not exempt them from prosecution for possession, delivery or production. In fact, if one does exceed the permitted limit, law enforcement and the DA may see this as a more serious felony crime, such as intent to sell or trafficking.
If one did exceed the permitted amount, then law enforcement will treat this as a violation of the law and not consider the medical marijuana card as an exemption. Instead, if one exceeds the permitted amount, the defendant will have to prove by a preponderance of evidence that it was medically necessary. This medical necessary is an affirmative defense and in no way is a free pass to get out of prosecution.
One claiming this defense will have to prove he or she was diagnosed with a chronic or debilitating medical condition within the 12-month period preceding his or her arrest; has been advised by his or her physician that the medical marijuana may mitigate the symptoms; is engaged in the medical use of marijuana; and proves by a preponderance of evidence that the greater amount is medically necessary as determined by the person’s attending physician to mitigate the symptoms.
What this means in simple terms is if you exceed the legal amount permitted and are prosecuted, you will most likely have to go to trial and put up a defense that may require various forms of evidence, such as experts. Even then, there is no guarantee your affirmative defense will be a success. All of this will amount to expensive legal fees, stress and possibly your freedom. This is a legal risk that every medical marijuana card holder should be aware of.
If you are faced with a charge for exceeding the limits for medical marijuana please contact Garrett T. Ogata for more information.
DISCLAIMER: This is for information purposes only and is not legal or medical advice. Nor does this information create an attorney-client relationship. Always seek the advice of a licensed attorney. Nevada law does change so it is important to talk to a licensed attorney in person.