Bar News - January 20, 2016
Criminal Law: Medical Marijuana Law Factors into Traffic Stops
By: Richard Samdperil
Prosecutors and defense lawyers are most likely familiar with this scenario: a police officer makes an ordinary traffic stop for speeding or a broken tail light. Then, the officer smells marijuana, or observes a pipe, or maybe even sees a bag of “green vegetative matter” sticking out of the center console. What started as a routine motor vehicle encounter graduates to a search of the car, and ends with the driver’s arrest for possessing marijuana.
More frequently, however, I see this scenario, with a slight twist: The driver, or sometimes the passenger, says that he or she is a medical marijuana patient and has a lawful prescription for the drug. Why, these defendants want to know, are they being arrested and prosecuted?
The defendants are never New Hampshire residents. But as New Hampshire’s medical marijuana laws become effective and implemented, this too will change.
In December 2015, the NH Department of Health and Human Services issued its first medical marijuana identification card. The ID card, which followed a successful lawsuit by an Alstead woman suffering from terminal lung cancer, was the first marijuana patient ID issued under RSA Chapter 126-X, the 2013 law legalizing medical marijuana in New Hampshire. For the past two years, Chapter 126-X, formally titled “Use of Cannabis for Therapeutic Purposes,” has primarily been the domain of lawyers practicing administrative law and regulatory compliance – those advising the people and businesses trying to license dispensaries.
But the enabling legislation does more than establish a framework for medical marijuana providers and their prospective patients. Chapter 126-X provides legal protections to “qualifying patients” and authorizes them to possess up to two ounces of usable cannabis. A “qualifying patient” is a New Hampshire resident who has been diagnosed with a qualifying medical condition and has a valid ID card – only one person so far.
Since Aug. 11, 2015, when much of the enabling legislation became effective, a medical marijuana identification card provides the holder protection from arrest and prosecution.
With only one New Hampshire resident being a “qualifying patient,” New Hampshire’s medical marijuana laws seems to present little opportunity for influencing how law enforcement officers engage with motorists.
But under New Hampshire law, a medical marijuana patient from another state can be a “visiting qualifying patient” in New Hampshire. A “visiting qualifying patient” is a person who has a qualifying medical condition but is not a New Hampshire resident, or has been a state resident for less than 30 days. This means that another state’s medical marijuana ID card or certificate has the same force and effect as a New Hampshire registry identification card, provided the patient can also produce a statement showing the person has a qualifying condition covered by the New Hampshire medical marijuana statute.
With 23 states (including all the New England states) and the District of Columbia legalizing some form of medical marijuana, there are a number of visitors and travelers who likely meet RSA 126-X:1’s definition of a visiting qualifying patient.
If someone is a qualifying patient or a visiting qualifying patient, that person is protected in a number of ways:
First, New Hampshire’s medical marijuana laws protect the person from prosecution. Chapter 126-X actually both bars prosecution and establishes an affirmative defense to prosecution. Why both? Possibly because each state uses its own version of a medical marijuana ID card or certificate, some include detailed information about the qualifying medical condition and authorizing physician, and others list only the patient’s name and identifying information. If the ID card is not sufficient itself, a person charged can still raise an affirmative defense with support from other medical documents.
Second, it protects the person from arrest. RSA 126-X:2 specifically states that a qualifying patient “shall not be subject to arrest by state or local law enforcement.” This suggests that a qualifying patient cannot be further detained, taken into custody, or have their vehicle impounded when he or she is able to show a valid medical marijuana identification card.
Third, the statute prohibits state or local law enforcement from sharing information with other law enforcement agencies that do not recognize the protections of the New Hampshire law, unless that information is lawfully subpoenaed. This means that local police cannot simply refer medical marijuana cases to federal prosecutors.
The statute’s protections also extend to providers, caregivers and, in certain cases, to any individual “in the presence or vicinity of the therapeutic use of cannabis.” This suggests that a family member or other person merely driving a medical marijuana patient can do so without fear that he or she will be charged with possessing or transporting drugs.
Think about anyone vacationing in New Hampshire, or a traveler to or from Maine, or anyone headed to Vermont via Interstate 93 – they all travel through the Granite State. Now, those medical marijuana patients, whether they are here to visit or just passing through, can lawfully take their therapeutic cannabis with them without the fear of arrest or prosecution in New Hampshire state courts. Or so it appears under the statute.
Andrew Cotrupi, a long-time criminal defense lawyer in Hampton, routinely handles drug cases that originate from motor vehicle stops made on the 16.2-mile stretch of New Hampshire Interstate 95 between Massachusetts and Maine. In his view, law enforcement either does not know about or simply chooses to ignore the rights of visiting medical marijuana patients: “Law enforcement has been an opponent of medical marijuana. And there is a persistent refusal to recognize the non-criminal, medical marijuana exception [created by Chapter 126-X] when conducting motor vehicle stops.”
James Shepard, a prosecutor with the NH Department of Safety who handles many of the NH State Police cases in the I-93 corridor, has a different view: “More often than not, out-of-state certifications turn out to be illegitimate,” meaning they are either fraudulent certificates or identification cards, or are obtained based on referrals by questionable medical authorities. Shepard also notes that a qualifying medical condition in one state may not necessarily be a qualifying medical condition under New Hampshire law. But as Shepard explains, the New Hampshire law enforcement community has no unified approach: “To the best of my knowledge, there is no official guidance from the Attorney General’s Office as to how to handle valid out-of-state certifications.”
Although the law was passed in 2013, many lawyers and police officers are still not clear on how medical marijuana plays into encounters between police and medicinal marijuana users. The practical implications and procedures surrounding the new law will likely evolve as more qualifying patients and visitors come into contact with New Hampshire law enforcement.
Richard Samdperil is a criminal defense lawyer and partner at Samdperil & Welsh in Exeter. He is also chair of the NHBA Criminal Justice Section.