Are you a medical marijuana patient facing state charges in one of the other 12 states that have passed legislation legalizing medical marijuana (HI, AK, WA, OR, MT, NV, CO, NM, MI, RI, VT, ME)?

In addition to California, 12 states have done the right thing, and passed legislation legalizing and regulating medical marijuana (either by initiative or statute, and by amending state law or the state constitution). These 12 states, along with California, have removed all criminal sanctions for the medical use of marijuana under state law, and have provided patients with an affirmative defense to assert in state court. Some of these 11 states have taken the lead on expanding rights for medical marijuana patients. Oregon and Washington have tried to allow patients to have enough medicine for their needs by setting their possession and cultivation limits at 24 oz. of processed bud. Rhode Island has prohibited employment discrimination in its law, and New Mexico has created provisions that allow and regulate state-licensed dispensaries. Montana and Rhode Island have taken the lead on a reciprocity provision, which allows a patient from another medical marijuana state to use her or his registry identification card in those states as well. Sadly, the rest of the states continue to restrict their programs to only in-state doctors (except for Vermont, which now allows doctors from New York, New Hampshire, and Massachusetts to write recommendations as well). Additionally, while some states (AK, HI, NM, VT) require patients to get registry identification cards in order to assert an affirmative defense, other states (CO, ME, MT, NV, OR, RI, WA) have followed California's example and have not made these cards mandatory to assert an affirmative defense in state court. Nonetheless, patients are advised to get the state registry identification cards if they are able, so as to gain the extra protections that they offer in each state.

While each of these states has a law, in many cases, there is a long way to go before patients truly have safe access. It is important for residents of these states to be aware of the relevant laws and to continue to build political capital and organize to pass new legislation and initiatives in the future. For more information about how to get involved in your area, check out ASA's Activist Corner.

More practically, if you have you been arrested for a marijuana offense in one of these states, and you use marijuana for medical purposes and lack the proper state documentation, the first thing you should do is to try to get an appointment with and then a recommendation from a doctor in good standing in that state. This applies even if you already have an out-of-state recommendation, as such a recommendation might be helpful, but will probably be insufficient in asserting a successful affirmative defense in one of the other medical marijuana states (except MT and RI). However, please note that a recommendation and state registry identification card received after a law enforcement encounter may not be sufficient for asserting your medical marijuana defense in court. Here are several strategies you may employ:

1. At a consultation, educate your primary care physician on the benefits of medical marijuana relating to your specific condition and ask her/him to write you a recommendation.

2. If your primary care physician is unwilling to recommend, or is located in another state, refer to organizations listed for the state in ASA's Local Resources section and contact them to inquire as to whether they are aware of any doctors without a bias against medical marijuana who are familiar with its efficacy relating to your specific condition. Identify a doctor and make an appointment and, at a consultation, ask your doctor to write you a recommendation.

3. You may also want to call through healthcare lists of doctors and use Google (search terms: "medical marijuana physician Your State") to attempt to find a doctor who is aware of the benefits of medical marijuana. It is more likely that these doctors, if they exist, would be living near the larger metropolitan areas of the state.

In educating your physician, you should use these materials:

• Conant v. Walters, 309 F.3d 629 (9th Cir 2002) which says that it is legal for any doctor in the United States to write a medical marijuana recommendation, under the First Amendment, as long as the doctor does not aid or abet the patient in breaking federal law. While technically Conant v. Walters is only a Ninth Circuit Court of Appeals decision, it still may be seen as good caselaw across the country. It was a unanimous and soundly reasoned decision and the U.S. Supreme Court denied review. There is also no reason to assume any other Circuit Court of Appeals would come to a different result in a similar case, specifically ignoring the persuasive authority of Conant. Finally, in order for this case to stop being the law of the land, the process must begin with a U.S. District Court ruling against a doctor, and ASA is not aware of any cases of that sort currently in litigation. Thus, a doctor anywhere in the country may feel confident in following the rules of Conant.
• Explain your condition to the doctor and detail your experiences using non-marijuana conventional medicines and how those medicines did not help adequately. Tell the doctor (if appropriate) that you have used marijuana before and it has helped with your condition. Then use ASA's educational booklets on medical marijuana and various conditions to give your doctor some scientific background on why you believe marijuana will be beneficial to you. If you need information on a condition that is not listed, you can also try Google (search terms: "medical marijuana study Your Condition").
• A sample recommendation for your doctor to use, and an example from California's Department of Health of a Written Documentation of Medical Records, which your doctor can edit appropriately and use.

Using your recommendation (if a doctor deems that it is appropriate to issue you one), and appropriate state documentation, you should try to assert the medical marijuana affirmative defense against your marijuana-related charges. Also make sure that your Public Defender looks for challenges that he or she can make in court to the other parts of the arrest, particularly regarding search and seizure issues (no probable cause to search, coerced consent to search, faulty warrant, etc.). And keep Americans for Safe Access' Legal Services Coordinator apprised of the progress of your case, and, if necessary, ASA legal staff can try to set up a consultation with your attorney before trial.

Aside from this general information, here is a list of information on each specific state law, and on how to become a patient in that state and how to utilize the affirmative defense in court, as well as any relevant caselaw. Additionally, helpful links to state resources are included, as well as other related legal topics. You and your lawyer should examine these resources thoroughly and conduct further legal research specific to your case before constructing your defense.