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Published on: 2013-09-27Published September 2013
Unfortunately, patients, caregivers, and providers are still vulnerable to federal and state arrests, prosecutions, and incarceration. They also suffer discrimination in employment, child custody, housing, public accommodation, education and medical care.
If you are arrested for a cannabis offense and the prosecutor files charges, you will first face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time.
The information below has been created to help navigate you through this process.
Published September 2013
We are sorry to hear about the terrible ordeal you have just been through. Many victims of federal raids are never charged, and the federal government simply keeps all of the medicine seized as "evidence," but charges no one.
For more information about Federal Laws please visit the Federal Law section of our website.
If the U.S. Attorney does decide to charge you, you will go through the federal court process and will have an arraignment, preliminary and other hearings, an appearance to set your trial date, and then a federal trial before a judge or jury. Evidence of state medical cannabis recommendations and state medical cannabis laws will very likely not be allowed to be a part of your defense in federal court. Specifically, they are deemed not relevant to your guilt, and the U.S. Attorney will almost certainly be successful in excluding from the jury any evidence of medical use presented for the purposes of justifying or excusing the acts for which you are being charged.
The federal government may also try to seize all of your property and may commence asset forfeiture proceedings. For more information on this issue, see ASA's FAQ and Forfeiture Endangers American Rights. Again, ASA is so sorry to hear that you will have to go through this difficult and trying process, simply because you wanted to help yourself, or other patients in need of relief to obtain the medicine that works best for them.
However, in recent federal cases, federal defendants such as Charles Lynch, and the California Healthcare Collective have been able to raise the issue of medical cannabis in other more obscure ways, but the jury was instructed not to consider these facts for the purposes of exoneration on the charges, and indeed, all of these defendants were convicted. Mickey Martin, of Tainted Inc., also brought up the medical nature of his cannabis activities, with success, but he did so after having accepted a plea bargain, in the sentencing phase (as opposed to during a trial or motion) in order to positively influence his judge. This strategy was effective, and combined with all of the other good facts of Mickey's case, allowed him to receive a much lighter sentence.
Unless you have the funds to hire a private attorney who is familiar with this type of federal case, it is likely that you will receive a Federal Public Defender. Federal Public Defenders are very good at their jobs and will do their best to represent you. You should also consider using the testimony of expert witnesses, especially regarding the alleged weight of plants and bud that is claimed by law enforcement, if your case goes to trial.
Some defendants choose to cooperate with the government, others take plea bargains but refuse cooperation, and some take their cases to trial. It is up to you as to if and when you accept a plea offer.
Q. Am I likely to get release pending appeal from the judge?
A. No, while you will likely be allowed to remain free awaiting trial and sentencing, unfortunately you will probably have to report to federal prison on the day you are assigned to serve your sentence. One defendant, Bryan Epis, had success with this issue several years ago. Epis was originally imprisoned by Judge Frank Damrell, but the Ninth Circuit Court of Appeals overturned this decision and ordered him released, pending the adjudication of his appeal. However, in more recent cases, other defendants, such as Dr. Mollie Fry and Dustin Costa, have so far been unsuccessful in escaping federal prison while waiting for the decision.
In the ASA Brief Bank, there is an example of a motion for bail pending appeal, which Chief Counsel Joe Elford on behalf of Michael Teague, and which was ultimately unfortunately, unsuccessful. The initial motion for bail pending appeal is made to the federal District Court. If the court denies the motion, an immediate appeal can be filed with the Ninth Circuit.
The reason why most federal defendants are unable to win these types of motions is because the legal presumption shifts against them after sentencing. Prior to sentencing, there is a presumption that a federal defendant is entitled to release, unless the government can demonstrate that the person is a danger to the community or a flight risk. However, after sentencing, especially for drug offenses, the presumption shifts and it now becomes incumbent upon the defendant to demonstrate to the court by clear and convincing evidence that he is not a flight risk and not a danger to the community. The defendant must also show that he or she has some colorable, non-frivolous issue for appeal.
Q. Will I be able to use medical cannabis while on federal Supervised Release?
A. Sadly, because medical cannabis is illegal under federal law, medical cannabis patients who are on federal Supervised Release (which is like probation) do not have the right to use their medicine. However, a patient does have the right under federal law to try to get a prescription for Marinol while on supervised release if she or he believes that Marinol will help ease the symptoms of her or his condition. See FAQ Civil 1 Section I.E. to learn more about how to get a Marinol prescription.
However, please note that some federal defendant patients have had a difficult time getting approval from the U.S. Attorney or federal probation officer to even use Marinol, a legally prescriptible Schedule III drug. Because of their concern that positive results on most drug tests cannot differentiate between the presence of Marinol and medical cannabis (while the federal government does have access to testing that can differentiate, it is not widely utilized), many tend to stand as obstacles between you and the medication you need. Your first step is to educate them about your condition and your need to have a medicine that eases a particular symptom, and why the THC in the Marinol will specifically help you.
Q. If local law enforcement participated in the federal raid, can I sue the locality based on the cooperation in civil court, and will that help with my federal case?
A. Unfortunately, while there have been several attempts to sue localities in civil court based on the assistance offered by local law enforcement to the DEA to enforce federal law at the expense of state law, none have been successful, either by themselves, or in changing the course of the federal criminal case. The fight to get local law enforcement to stop offering any (or at least anything more than token) assistance is more of a political fight than a legal one. While local law enforcement is bound to uphold state law, there is also probably no successful solely legal grounds that a plaintiff could use to stop individual officers from either cooperating with or handing cases over to federal agents. A successful suit becomes even more difficult when an officer involved in a raid has been cross-deputized as a federal agent, as many county Sheriffs and members of multi-agency taskforces have been.
Additionally, even the California Attorney General has sent the message that local law enforcement should not be subverting state law to assist in medical cannabis raids. In response to the June 6, 2005 Gonzales v. Raich decision, California Attorney General Bill Lockyer issued bulletins on June 9 and June 22 encouraging local law enforcement not to invoke federal law. However, there is little that the Attorney General can do to force local police not to seek help from the federal government if they so choose.
Instead, patients should organize in every locality where local cooperation has occurred, and attempt to get non-binding resolutions passed by the governing body, instructing the Chief of Police or Sheriff to change his or her policy on cooperation. Politically speaking, if activists bring enough shame and embarrassment to local officials that skirt state law to entice the federal government to get involved, it may discourage other localities from acting similarly.
Q. I am a witness who has been federally subpoenaed to testify in a federal defendant's case, what do I do?
A. If you are a possible witness in a federal medical cannabis case and are considering the possibility of not testifying, you should engage your own lawyer. Many possible witnesses employed this tactic in the second Ed Rosenthal case, and it was ultimately successful, as the case ended up being resolved for other reasons before most of the witnesses were forced to testify. In addition, you and the federal defendant should not, under any circumstances, communicate anything of substance about the case.
Fill out the Questionnaire
If you or your attorney has any questions, please fill out our Federal Charges Questionnaire. ASA gives priority to ASA members.
ASA keeps a database of law enforcement encounters from around the country for reports and to support our advocacy efforts. Whether you need support from ASA or not, please consider filling out the above form.
Published September 2013
Even in states that have medical cannabis laws, patients and their providers may still find themselves in the legal system from uneducated or vindictive law enforcement and prosecutors, personal actions that are outside of the scope of the medical cannabis program, or for civil matters such as housing, employment, and/or child protective services.
If you are facing federal charges, please see the federal section. The states of Alaska, Colorado, Delaware, Hawaii, Maryland, Maine, Michigan, Montana, New Hampshire, Nevada, New Jersey, Oregon, Rhode Island, and Washington have expressly allowed for an affirmative defense, which means you can present the evidence of your medical use in court. Only Arizona, Connecticut, Delaware, Illinois, Massachusetts, Maine, Michigan New Hampshire, Rhode Island, and Washington have specific statues for various civil protections.
For a quick reference of what is protected by your state law visit. In most medical cannabis states, if you were in compliance with state law and provider state by state your public defender or attorney can file a motion to dismiss the charges, this process is different for every state. See CA sample here. In many states patients have been successful in getting their property returned after their charges were dropped. See charges here.
No matter what state you live in the legal system can be intimidating and isolating. For general information about what to expect in the legal process, please read our “Demystifying the Legal System” ASA has created “how to defend medical cannabis patient” legal guides for CA, CO, and WA. Much of the information in these manuals applies to other states.
Fill out the Questionnaire
If you or your attorney has any questions, please fill out our Medical Marijuana State Questionnaire. ASA gives priority to ASA members.
ASA keeps a database of law enforcement encounters from around the country for reports and to support our advocacy efforts. Whether you need support from ASA or not please consider filling out the above form.
Published September 2013
Unfortunately, your state has not created laws that protect your medical use and you are subject to the penalties for general marijuana use, possession,manufacturing, and/or sales. However, you should talk to your attorney about asserting your medical use in your case either as medical necessity defense or as additional information for sentencing. There have been successful cases in individuals asserting a medical necessity defense in Florida (Jenks v. State, 582 So. 2d 676 (1991) and Sowell v. State, 738 So. 2d 333 (1998)) and Idaho (State v. Hastings, 1990 and State v. Tadlock (2001) ). There is also case law in Alabama, Georgia, and Minnesota where a medical necessity defense was expressly not allowed.
The medical cannabis movement was started by individuals that stood up in court and said “not guilty” to their charges. Many of these individuals were found guilty but the publicity of their trials sparked state referendums that protected other patients. For more information on these individuals and the history of this patient’s movement, please visit the Patient's History of Medical Cannabis.
Most marijuana cases in the US are handled through plea agreements, a process by which the defendant waives their right to a trial and pleads guilty to the charges. Depending on what state you are in, the severity of the charges, and other personal circumstances a plea agreement may be your best choice. For general information about what to expect in the legal process, please read our “Demystifying the Legal System”.
When deciding to fight your charges please consider some of the following questions:
- Do you have a community that will support you?
- What is the disparity in charges/sentencing if you loose in court vs taking a plea agreement?
- How will a trial affect your family?
- How will a trial affect your employment, child custody, housing?
- If you are not facing jail time, can you take the time out of my life for a trial?
- If you do not qualify for a public defender, can you afford a trial attorney?
If you do decide to move forward with a trial, considering organizing court support.
Fill out the Questionnaire
If you or your attorney has any questions, please fill out our Non-Medical Marijuana State Questionnaire. ASA gives priority to ASA members.
Some defendants choose to cooperate with the government, others take plea bargains but refuse cooperation, and some take their cases to trial. It is up to you as to if and when you accept a plea offer.
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