Mark Katz posts about a recent successful medical marijuana defense case, based on these provisions in Maryland’s marijuana statute:
(i) In a prosecution for the use or possession of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.
(ii) Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed marijuana because of medical necessity, on conviction of a violation of this section, the maximum penalty that the court may impose on the person is a fine not exceeding $100." Md. Code, Crim. Law art. § 5-601(c)(3).
In Texas, there is no equivalent protection for legitimate marijuana patients. Having written recently about whether drug policy reformers should press for complete victory, or possibly accept incremental change in our laws, I am sensitive to the need for fighting the drug warriors on multiple fronts.
The last Texas legislature declined to reduce the criminalization of less than an ounce of marijuana to a Class C offense (the equivalent of a speeding ticket). I do somewhat fear that if Texas passed a medical marijuana affirmative defense, as Maryland has, that it might slow down the total-decriminalization process.
Also, Katz’ post points out the financial cost to the patient in mounting such a defense:
Mounting the best medical marijuana defense will ordinarily be costly, calling for the testimony or written opinion of the defendant's treating physician (or an evaluating physician if the defendant had no personal physician), and sometimes the testimony or written opinion of a medical marijuana expert if the treating physician lacks sufficient knowledge about marijuana's medicinal relevance to the defendant, or refuses to provide a medical marijuana opinion.
So, would an affirmative defense for medical marijuana patients in Texas be a step in the right direction?