VIII. Are you a medical marijuana patient facing state charges in New Mexico (NM)?

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.

New Mexico's medical marijuana law was first introduced in 2007 as S.B. 238, but it failed the New Mexico House of Representatives, 36-33. However, after some slight changes, S.B. 523, The Lynn and Erin Compassionate Use Act, a statutory bill, passed the New Mexico House of Representatives by a 36-31 margin, and also passed the State Senate, and was signed into law by Governor Bill Richardson on April 2, 2007. The New Mexico Department of Health (DoH) started issuing registry identification cards on October 1, 2007, and on July 24, 2008, the DoH issued proposed regulations on ID Cards and Production and Distribution and there was a public comment hearing on September 8, 2008. So far, as a result of public comments, the DoH has already made several changes in the ID Card regulations, including adding definitions for usable marijuana, revising a monitoring system to be more respectful of patients and adding an appeal process.

State law allows a patient with a written certification (also known as a recommendation) and a registry identification card and a primary caregiver to collectively possess an "adequate supply" of medicine, which is no more than is necessary to ensure an uninterrupted supply of medicine for 3 months, which the DoH has defined as 6 oz. of processed bud. A patient with a production license may cultivate 4 mature plants and 12 seedlings while a non-profit private entity operating a facility with a production license may cultivate 95 plants (either mature or immature) at any one time and may only sell marijuana with a consistent unit price, without volume discounts. A mature plant is a harvestable female plant with flowers that is greater than twelve inches in height and twelve inches in diameter.

The New Mexico Department of Health registry identification card is mandatory in order to assert a medical marijuana affirmative defense in state court, and a valid written certification must note that the patient has been diagnosed with a "debilitating medical condition," and "the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient." A licensed producer and its employees also have an affirmative defense in court as long as they are operating in accordance with the law.

A primary caregiver (a person who is "necessary to take responsibility for managing the well-being of a qualified patient with respect to the medical use of cannabis") may serve only 4 patients at a time. Additionally, a person who has been convicted of certain felonies in the last three years is prohibited from being a primary caregiver. In New Mexico, a "debilitating medical condition" is:

• Cancer,
• Glaucoma,
• HIV/AIDS,
• Epilepsy,
• Multiple Sclerosis,
• Damage to the nervous tissue of the spinal cord, with objective neurological indication of intractable spasticity; or
• Admitted into hospice care in accordance with rules promulgated by the DoH.

Under New Mexico's medical marijuana law, a qualified patient is not protected from liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of cannabis. A patient is also not protected from criminal prosecution or civil penalty for possession or use of cannabis in a school bus or public vehicle; on school grounds or property; in the workplace of the qualified patient's or primary caregiver's employment; or at a public park, recreation center, youth center or other public place. Additionally, non-profit private entity facilities may not be located within three hundred (300) feet of any school, church or daycare center. A qualified patient shall only reimburse their primary caregiver for the cost of supplies or utilities associated with the possession of medical use marijuana by the primary caregiver for the qualified patient. No other cost associated with the possession of medical use marijuana by the primary caregiver for the qualified patient, including the cost of labor, shall be reimbursed or paid.

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

Another important resource is the New Mexico Department of Health website, which has a helpful FAQ, a Program Brochure, Participant Application, and a Participant Checklist. For more information, please contact Melissa Milam, Medical Cannabis Program Coordinator, at melissa.milam@state.nm.us or (505) 827-2321.

Additionally, Drug Policy Alliance has been instrumental with both passage of the original legislation and implementation of New Mexico's medical cannabis law. Check out their site and contact nm@drugpolicy.org with further questions.

Furthermore, while ASA is unaware of any current precedential New Mexico caselaw supporting the return of marijuana to a patient if there is a lack of probable cause, it might be possible for a New Mexico 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.

New Mexico's law says "Any property interest that is possessed, owned or used in connection with the medical use of cannabis, or acts incidental to such use, shall not be harmed, neglected, injured or destroyed while in the possession of state or local law enforcement officials. Any such property interest shall not be forfeited under any state or local law providing for the forfeiture of property except as provided in the Forfeiture Act. Cannabis, paraphernalia or other property seized from a qualified patient or primary caregiver in connection with the claimed medical use of cannabis shall be returned immediately upon the determination by a court or prosecutor that the qualified patient or primary caregiver is entitled to the protections of the provisions of the Lynn and Erin Compassionate Use Act, as may be evidenced by a failure to actively investigate the case, a decision not to prosecute, the dismissal of charges or acquittal." Additionally, a licensed producer that is a non-profit private entity has the same rights under the proposed regulations.

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 whether your state has a 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 New Mexico motion. For more information on filing this motion, contact ASA's Legal Services Coordinator.

The most interesting note in New Mexico law is that it statutorily allows dispensaries/small cultivation sites, and has created licensing proceedings so the state can properly regulate them. These regulations are the most forward-thinking in the country, and are an attempt by the state to guarantee that New Mexico patients will have safe access to their medicine.

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 is a link on NORML's page for some possible lawyers.