XI. Are you a medical marijuana patient facing state charges in Vermont (VT)?

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.

Vermont's S. 76, a statutory bill, unfortunately had pretty weak protections for medical marijuana patients, and was originally passed by the Vermont legislature on May 26, 2004. Vermont's law was later strengthened and modified by S. 7 on July 1, 2007, when it became law without Vermont Governor Jim Douglas's (R) signature. Vermont's current medical marijuana law can be found in 18 V.S.A. Chapter 86.

State law allows a patient with a medical verification form (also known as a recommendation) and a registry identification card and a registered caregiver to collectively possess 2 oz. of processed bud, 2 mature plants, and 7 immature plants (limits expanded by S. 7). Plants must be cultivated in a single, secure, locked facility and a patient or registered caregiver may not transport marijuana in public unless it is secured in a locked container.

The Vermont Department of Public Safety registry identification card is mandatory in order to assert a medical marijuana affirmative defense in state court, and a valid medical verification form must note that a "bona fide physician-patient relationship" exists (which means a "treating or consulting relationship of not less than six months duration, in the course of which a physician has completed a full assessment of the registered patient's medical history and current medical condition, including a personal physical examination"), that the patient has been diagnosed with a "debilitating medical condition" which is of recent or sudden onset, and that "the patient has not had a previous physician who is able to verify the nature of the disease and its symptoms," and that "reasonable medical efforts have been made over a reasonable amount of time without success to relieve the symptoms." In addition to Vermont physicians, S. 7 expanded the ability to write valid recommendations for Vermont patients to physicians licensed in New York, Massachusetts, and New Hampshire.

A medical marijuana patient may have 1 registered caregiver (a person "who has agreed to undertake responsibility for managing the well-being of a registered patient with respect to the use of marijuana for symptom relief" and has never been convicted of a drug-related crime) who may serve only 1 patient at a time. In Vermont, a "debilitating medical condition" is:

• Cancer or its treatment, if the disease or the treatment results in severe, persistent, and intractable symptoms;
• HIV/AIDS or its treatment, if the disease or the treatment results in severe, persistent, and intractable symptoms;
• Multiple Sclerosis or its treatment, if the disease or the treatment results in severe, persistent, and intractable symptoms; or
• A disease, medical condition, or its treatment that is chronic, debilitating, and produces severe, persistent, and one or more of the following intractable symptoms: cachexia or wasting syndrome; severe pain; severe nausea; or seizures. (Added by S. 76).

A Vermont patient is not protected by Vermont's medical cannabis law when under the influence of cannabis: while operating a motor vehicle, boat, or vessel, or any other vehicle propelled or drawn by power other than muscular power; in a workplace or place of employment; or operating heavy machinery or handling a dangerous instrumentality. Additionally, Vermont also does not protect patients who engage in smoking of cannabis in any public place, including: a school bus, public bus, or other public vehicle; a workplace or place of employment; any school grounds; any correctional facility; or any public park, public beach, public recreation center, or youth center. Transfer of cannabis and paraphernalia can only occur between a patient and a registered caregiver.

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

Another important resource is the Vermont Department of Public Safety website, which has helpful resources, including Patient and Caregiver Application forms and a Physician's Medical Verification form.

Unfortunately, it is unlikely that any attempt to try to get back property, including marijuana or paraphernalia that is seized by law enforcement during a marijuana investigation will be successful, even if the patient is never charged or the charges are dismissed. Vermont's law states: "A law enforcement officer shall not be required to return marijuana or paraphernalia relating to its use seized from a registered patient or registered caregiver."

Another interesting note in Vermont law is State v. Bryant, a Vermont Supreme Court case that overturned a felony marijuana conviction based on an unconstitutional warrantless flyover by a military helicopter, as Vermont residents have a broad right to privacy "that ascends into the airspace above their homes and property." This case applies to both medical and non-medical marijuana, but is important when a patient or caregiver is challenging the validity of a search in a criminal case.

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 to possible lawyers from the NORML website.