VI. Are you a medical marijuana patient facing state charges in Montana (MT)?

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.

Montana's I-148, a statutory ballot initiative, passed with 62% of the vote in November 2004.

Montana law allows a patient with a written certification (also known as a recommendation) to possess 1 oz. of processed bud and 6 (mature or immature) plants. Additionally, a caregiver can possess an additional 1 oz. of processed bud and 6 (mature or immature) plants.

The Montana Department of Public Health and Human Services registry identification card is not mandatory in order to assert a medical marijuana affirmative defense in state court, and a valid written certification 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 "debilitating medical condition", and that the "potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient". Additionally, in an important reciprocity provision only found in MT and RI, a registry identification card or its equivalent issued by another one of the medical marijuana state governments has the same force and effect as a Montana registry identification card in Montana.

A medical marijuana patient may have 1 primary caregiver (a person "who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana") who may serve an unspecified number of patients at a time. In Montana, a "debilitating medical condition" is:

• Cancer,
• Glaucoma,
• HIV/AIDS, or
• Any chronic or debilitating disease which produces cachexia, severe pain, severe nausea, seizures (such as from Epilepsy), or persistent muscle spasms (such as from Multiple Sclerosis or Crohn's Disease), or
• Treatment for any of these conditions.

A Montana patient may not operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana. The smoking of marijuana is not permitted in a school bus or other form of public transportation; on any school grounds; in any correctional facility; or at any public park, public beach, public recreation center, or youth center.

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

Another important resource is the Department of Public Health and Human Services website, which includes forms and a helpful FAQ.

Additionally, check out Patients and Families United, and these helpful links. Also, Montana NORML has some information.

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

Montana's law says "An interest in or right to property that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to medical use may not be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense."

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 Montana 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 is a link to some Montana marijuana lawyers.