Court may rule on whether medical marijuana can be bought on black market
f Taos resident Tumi Madappa appeals an order by the Second Judicial District in Albuquerque, New Mexico may soon have case law addressing whether or not medical marijuana patients may purchase their marijuana on the black market if there aren’t enough licensed producers providing access to the drug.
Madappa, who suffers from post traumatic stress disorder, became a licensed medical marijuana patient in early October, according to an article in The Taos News today. He is also on probation, a status that has brought his use of medical marijuana into conflict with the criminal justice system.
A routine drug test showed marijuana in Madappa’s system, and his probation officer reasoned that he broke the law by purchasing the drug from the black market rather than a qualified dispensary, since Madappa got his license during a period of time in which the single licensed facility in the state was out of its product. New Mexico state attorney Michael Cox agreed with that reasoning.
The court ruled that Madappa may only purchase his medicine from a state licensed dispensary, and that he has to provide documentation showing how much, when and where he got the marijuana.
Now, Madappa has to decide whether or not to appeal the Second Judicial District Court order, which his attorney characterizes as “absurd” because it violates his “…constitutional right to access medical care. ” Plus, attorney Kimberly Alderman says, it might not be “prudent,” since the state has a confidentiality provision that would be negated if Madappa were to provide the documentation ordered by the court.
The state currently has licensed almost 800 medical marijuana patients, and it just recently expanded the number of state licensed non-profits allowed to sell the drug from one to five. Each non-profit is limited to 95 plants, which the state acknowledges will only supply about 100 patients with their medicine. It will take at least three months for the four newly licensed facilities to have marijuana available for purchase.
The state statute itself is silent about where a patient may purchase the drug. It simply says that medical marijuana patients can’t be arrested for possession or use of the drug, “in any manner.” Here is the entire wording of the section of the statute regarding exemption from criminal and civil penalties:
188.8.131.52 EXEMPTION FROM STATE CRIMINAL AND CIVIL PENALTIES FOR THE MEDICAL USE OF MARIJUANA: Possession of, or application for, a registry identification card shall not constitute probable cause or give rise to reasonable suspicion for any governmental agency to search the person or property of the person possessing or applying for the card.
A. A qualified patient shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the use of marijuana by the state of New Mexico, or political subdivision thereof, if the quantity of marijuana does not exceed an adequate supply.
B. A primary caregiver shall not be subject to arrest, prosecution or penalty in any manner for the possession of marijuana by the state of New Mexico, or political subdivision thereof, for the medical use by the qualified patient if the quantity of marijuana does not exceed an adequate supply.
C. A qualified patient or a primary caregiver shall be granted the full legal protections provided under 184.108.40.206 NMAC by the state of New Mexico if the qualified patient or primary caregiver is in possession of a registry identification card. If the qualified patient or primary caregiver is not in possession of a registry identification card, the qualified patient or primary caregiver shall be given an opportunity to produce the registry identification card before any arrest or criminal charges or other penalties are initiated.
D. A practitioner shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege by the state of New Mexico, or political subdivision thereof, for recommending the use of marijuana or providing written certification for the use of marijuana pursuant to this rule and act.
E. Any property interest that is possessed, owned or used in connection with the use of marijuana, or acts incidental to such use, shall not be harmed, neglected, injured or destroyed while in the possession of New Mexico state or local law enforcement officials. Any such property interest shall not be forfeited under any New Mexico state or local law providing for the forfeiture of property except as provided in the Forfeiture Act. Marijuana, paraphernalia or other property seized from a qualified patient or primary caregiver in connection with the claimed use of marijuana shall be returned immediately upon the determination by a court or prosecutor that the qualified patient or primary caregiver is entitled to the protections of the provisions of this rule and act, as shall be evidenced by a failure to actively investigate the case, a decision not to prosecute, the dismissal of charges or acquittal.
F. A person shall not be subject to arrest or prosecution by the state of New Mexico, or political subdivision thereof, for a marijuana related offense for being in the presence of the use of marijuana as permitted under the provisions of this rule and act.
[220.127.116.11 NMAC - N, 12/15/2008]
By MARJORIE CHILDRESS 11/30/09 3:31 PM