Medical marijuana is getting a lot of attention both in New Mexico and nationally.  There are now 21 states with legalized medical marijuana and 6 more with pending medical marijuana legislation.  Washington and Colorado have legalized recreational marijuana.

The trend toward legalized medical marijuana is clear.  However, it is important to understand that there remains numerous possible criminal consequences for medical marijuana users.

Restrictions on Medical Marijuana Users 

Though qualified medical marijuana patients are shielded from criminal liability in many respects, there are a number of areas where criminal liability is still a possibility.

Allowable Possession

Regarding allowable levels of possession, New Mexico law (NMSA§26-2B-4(A)) states as follows:

“A qualified patient shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the medical use of cannabis if the quantity of cannabis does not exceed an adequate supply.

The obvious question will then arise what exactly is “an adequate supply.”  The Lynn and Erin Compassionate Use Act (NMSA §26-2B-3) is equally vague stating that it should be enough for a 3 months supply.

The Compassionate Use Act ultimately states that “adequate supply” will be defined by the regulations.  Currently, the regulations allow for up to 6 ounces and personal production of 4 budding plants and 12 seedlings.

However, there are new proposed regulations that would cut the personal production in half and limit possession to a 3 month supply.  Oddly, it does not appear that the regulations address the definition of a 3 month supply.

DUI Marijuana

A medical marijuana registration will not prevent a user from getting a DUI if found guilty of driving under the influence of marijuana.  There are a number of issues and complexities that arise here.

There are no established THC limits in New Mexico for DUI.  There is ongoing debate about where the THC levels should be set.  It is hard to provide much legal guidance at this point other than to say that medical marijuana patients are not shielded from DUI prosecution.

Restrictions on Public Possession 

NMSA §26-2B-5 places several restrictions on the public possession of medical marijuana.  Medical marijuana patients will not be shielded from liability for possession on school buses or school grounds, public vehicles or public parks/recreation centers, youth centers or “other public places.”

These restrictions are actually quite broad. Public vehicle presumably would include public transportation.  Public property is not defined anywhere so it is hard to say how any particular law enforcement officer or judge might construe this language.

Federal Law 

Under federal law, marijuana (including medical marijuana) remains a Schedule I controlled substance.  As such, possession remains a crime under federal law.  New Mexico law does not and cannot shield a medical marijuana user from federal prosecution.

The Department of Justice has indicated that it will not go after medical marijuana patients so long as they are in compliance with state law.  However, there are certain areas where federal criminal liability remains a possibility.  This would include possession of marijuana on federal premises.  It would also include possession at airports.  Finally, it would include transportation of marijuana between states.

Err on the Side of Caution 

These restrictions on medical marijuana should be taken very seriously.  Despite the notable trends toward legalization, there remain very significant risks of criminal liability.  It is best to err on the side of caution.

If you have concerns or are confused by the laws and regulations governing medical marijuana, it might be somewhat reassuring to know that you are not alone.  However, there is no real strength in numbers regarding violations of law as the continuing War on Drugs clearly illustrates.

As such, if you are confused or concerned, contact an attorney for guidance.  It is generally best not to test the limits of the law.