VII. Are you a medical marijuana patient facing state charges in Nevada (NV)?

If you are arrested for a marijuana 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. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.

Nevada's Question 9, a constitutional ballot initiative, originally passed with 65% of the vote on November 7, 2000, was implemented statutorily by A.B. 453 on June 14, 2001 and modified by A.B. 519, on July 1, 2005. Nevada's current medical marijuana law can be found in Nevada Revised Statute 453A.

Nevada law allows a patient with written documentation (also known as a recommendation) and a primary caregiver to collectively possess 1 oz. of processed bud, 3 mature plants, and 4 immature plants. However, if a patient exceeds that amount, the patient may still assert the affirmative defense by proving, by a preponderance of the evidence, that "the greater amount is medically necessary as determined by the person's attending physician." Such a patient must file and serve upon the prosecuting attorney a written notice of his intent to claim the affirmative defense at least 5 days before trial.

The Nevada State Health Division registry identification card is not mandatory in order to assert a medical marijuana affirmative defense in state court, and valid written documentation must note that the patient was examined "in the context of a bona fide physician-patient relationship," that the patient has been diagnosed with a "chronic or debilitating medical condition" within the 12-month period preceding the arrest, and that the patient has been advised by the attending physician that marijuana "may mitigate the symptoms or effects of that chronic or debilitating medical condition." Additionally, a medical necessity defense remains.

A medical marijuana patient may have 1 designated primary caregiver (a person who "has significant responsibility for managing the well-being of a person diagnosed with a chronic or debilitating medical condition"), although caregivers can serve multiple patients simultaneously. In Nevada, a "debilitating medical condition" is:

• Cancer,
• Glaucoma,
• HIV/AIDS, or
• A medical condition or treatment for a medical condition that produces, one or more of the following: cachexia, severe pain, severe nausea, seizures (such as from Epilepsy), or persistent muscle spasms (such as from Multiple Sclerosis).

A Nevada patient may not use medicine in any public place or in any place open to the public or exposed to public view or in any local detention facility, county jail, state prison, reformatory or other correctional facility, including, without limitation, any facility for the detention of juvenile offenders. A Nevada patient also may not drive, operate or be in actual physical control of a vehicle or a vessel under power or sail while under the influence of marijuana.

For more information, see What the Law Says & How to Become a Patient.

Another important resource is the Nevada State Health Division website, which has a helpful FAQ.

Additionally, Nevada NORML (click on Medical) is a good resource and has information on safe access and on doctors without a bias against medical marijuana who may be familiar with its efficacy relating to your specific condition.

Furthermore, while ASA is unaware of any current precedential State caselaw supporting the return of marijuana to a patient if there is a lack of probable cause, it might be possible for a Nevada patient to get his or her legal amount of medicine back from law enforcement if it was wrongfully seized and the criminal case has not been prosecuted or has been dismissed. Nevada has a Return of Property statute, NV Rev. Stat. § 179.085, and it has been used before. For more information on how this type of process works in California, take a look at our Return of Property page.

You and your Public Defender or private attorney can research more about the Nevada Return of Property process and special proceedings in criminal court, and you can attempt to apply the reasoning of the California Motion for Return of Property, and create a similar Nevada motion. For more information on filing this motion, contact ASA's Legal Services Coordinator.

Make sure you give all of this information to your Public Defender or private attorney and discuss it with her or him, and also that you and your lawyer continue to research whether there is any new caselaw in your state regarding medical marijuana. For information about how to find a lawyer familiar with medical marijuana law in your state, contact local activists to see if they have any information at Local Resources. Also, here are links to some Nevada marijuana lawyers.