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Medical Marijuana Defenses

Sometimes.  Medical marijuana is legal in Minnesota within the limits of Minnesota Statutes, as administered by the Minnesota Department of Health.  And, some is available like any prescription at a pharmacy (Epidiolex, Marinol).  Otherwise, marijuana is still may be a crime, depending upon quantity, even if used for medical treatment.

Medical marijuana, or cannabis, includes the plant, active cannabinoids THC and CBD, and concentrates made from the marijuana plant.  And though CBD can be sourced from industrial hemp, the marijuana plant is a better source.

But hemp is another category of cannabis that is now legal

The information here may help you avoid a problem; or solve one.

Criminalization of Medical Marijuana – Ideology Brutalizing Reason

In the United States, the idea of making a “drug” or plant a crime is recent.  The idea was born of racism.

Alcohol – a lethal addictive drug – is no longer a crime to possess.

But the government generally defines marijuana – a non-lethal, non-addictive drug – as a crime to possess.  And making it a crime subjects a person to labeling as a criminal, and incarceration; among other injustices.

Before the 20th Century, drug possession was not a crime.  At common law, there was no such thing as “criminal drug possession.”

In fact, a person could go to a herbalist or pharmacist to get medicine.  And you did not need a medical doctor’s recommendation (“Rx”).

Medical marijuana laws in Minnesota
Medical marijuana laws in Minnesota

So, what does this have to do with medical marijuana?  Opiates and other potentially lethal drugs are legal for medical treatment use in Minnesota.

And yet Minnesota still prosecutes the dying and seriously ill for marijuana possession and growing.

Minnesota’s limited, expensive medical marijuana concentrates program excludes many.  The law adds unnecessary costs, precludes insurance coverage, and excludes both plant-form and home grow.

So, what could explain that irrational state of affairs?  An “ends justify the means” tactic of anti-drug warriors with angry blood in their eyes?

Medical marijuana – statutes could provide safe harbor for medical use

Many sick people using medical cannabis are not qualified to participate in Minnesota’s limited medical marijuana statutory program.  And even if they can qualify, they are often unable to afford its uninsured, high cost.

The sick and parents of the sick “can get it on the street,” as Governor Dayton famously remarked.  After all, illegal marijuana is now more affordable for disabled people in Minnesota.

The medical necessity defense

For those people, perhaps the only legal defense available is the necessity defense or the “medical necessity defense.”  

This defense says that a person is not criminally responsible for their conduct, if necessary to prevent a greater harm.

And sometimes we call it the the Lesser of Two Evils defense.

Consider the crime of lying to police while hiding Anne Frank & family in Holland during World War II.

Direct democracy – the jury governs

The necessity defense is a cornerstone of the right to a jury trial.  And it’s the jury’s right to govern as the conscience of the community.

Some courts in Minnesota, however, have been hostile to the medical necessity defense in medical marijuana cases so far.

Is medical marijuana legal in Minnesota?
Is medical marijuana legal in Minnesota?

The Jury as the conscience of the community

The jury has the power to acquit an accused.  And this is so, even when it appears that the person did do what the criminal statute prohibits.

A jury can veto or nullify a law it views as unconscionable.  And it has the right to do so in secret.

This power of jury lenity has existed for centuries in American law.

It is the essential core of what a jury trial is.  Juries have had this power, going back all the way to Classical Athens and the Trial of Socrates.

The juror is an important check and balance against the cultural elites in the legislature, and in the courts.  A jury verdict of “not-guilty” can send a powerful message.

Democracy cannot exist without a real jury trial right.

On a jury, one person is a majority

If a jury cannot reach a unanimous verdict, there is no verdict.  And though not as good as an acquittal, a hung jury is better than a “guilty” verdict.

Medical marijuana is the type of case where a jury, as “the conscience of the community,” could refuse to convict.  The jury can do this whatever evidence there might be and whatever the unjust laws of Minnesota say.  A jury has the power.  Will they use it wisely, compassionately?

So, in the right case, with the right facts; the medical necessity defense could prevail in a Minnesota medical marijuana case.

Defending past acts vs preparing the future

If it’s too late to exercise a choice, so be it. Then, perhaps a medical necessity defense is the best option.

But if it’s not too late? Then Attorney Thomas Gallagher’s view is “don’t choose to be a martyr; instead be active and help pass a Medical Necessity Defense statute, and legalize for responsible adult use.”

Government still prosecutes disabled, ill people for marijuana crimes

Prosecutors still charge seriously ill medical marijuana patients in Minnesota; for the “crime” of marijuana possession or cultivation.

The only current safe-harbor is within the Minnesota Department of Health’s Minnesota Medical Marijuana program.  If you can qualify, and can afford it; that’s the best way to go.  But the program is so restrictive; it leaves most medicinal marijuana patients out in the cold.

That means prosecutors can still criminally charge marijuana crimes, despite patients’ efforts to stay alive and healthy.  Should that happen, Thomas Gallagher can help.  And Thomas Gallagher has represented many people charged with crimes related to medical marijuana successfully.

For patients facing with a marijuana charge, we may find other, more effective defenses, like suppression of evidence.

Thomas C Gallagher, Minnesota Marijuana Attorney
Thomas Gallagher, Minnesota Marijuana Attorney

But sometimes the medical necessity defense, or jury nullification may be the best defense available.  Those defenses are not usually viable in other types of criminal defense cases.

Common sense, reason and compassion can triumph over evil laws and government oppression.  In the end it’s up to us – to persuade the rest of us – of Reason, Truth, Compassion, Conscience and Liberty.

Question?  Call Medical Marijuana Defense Attorney Thomas Gallagher at 612 33-1500

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