Monday, May 12, 2014
North Dakota Supreme Court rejects the use of an out-of-state medical marijuana recommendation as a defense
North Dakota does not have a medical marijuana law (at least, not yet). But can someone with a medical marijuana recommendation from another state rely on that recommendation as a defense in North Dakota?
The North Dakota Supreme Court addressed the issue last week, holding that out-of-state medical marijuana recommendations are no defense to prosecutions in North Dakota.
Perhaps more interesting, the Court also considered whether evidence of an out-of-state recommendation can be introduced for the limited purpose of determining whether a defendant intended to distribute the marijuana she possessed. In other words, could a defendant charged with possession of marijuana with the intent to distribute argue that her out-of-state recommendation is evidence that she possessed marijuana for her own use rather than to sell it?
The Court did answer this second question directly because of the procedural posture of the case (the defendants were appealing from a conditional guilty plea). The Court's decision seems to suggest, however, that a defendant with an out-of-state medical marijuana recommendation might be able to introduce evidence of it for purposes of determining whether she is guilty of possession with an intent to distribute or only of simple possession.
The most relevant portions of the Court's opinion follow:
Larson and Kuruc argue the district court abused its discretion by refusing to admit their respective medical marijuana prescriptions from the State of Washington as a lawful defense under North Dakota's Uniform Controlled Substances Act. The district court denied Larson and Kuruc's motions in limine to include the prescriptions as a defense.
Larson and Kuruc argue the possession of a controlled substance pursuant to a prescription or order is a valid defense. Under Washington law, their prescriptions allow each party to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants. The prescriptions were issued by a licensed neuropathic doctor in Washington. Larson and Kuruc seek to use the prescriptions to contend they were in lawful possession and as a defense against the charge of possession with intent to deliver.
North Dakota's Uniform Controlled Substances Act contains a prescription exception that allows a person to possess a controlled substance if "the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice . . . ." N.D.C.C. § 19-03.1-23(7). Under the exception, this Court has stated, "A defendant may not be charged with possession of a controlled substance if he has 'a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice.'"
A "valid prescription" is defined as "a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a: (1) Practitioner who has conducted at least one in-person medical evaluation of the patient; or (2) Covering practitioner." N.D.C.C. § 19-03.1-22.4(1)(e); see alsoN.D.C.C. § 19-02.1-15.1(1)(f). A "practitioner" is defined as a "person licensed, registered, or otherwise permitted by the jurisdiction in which the individual is practicing to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research." N.D.C.C. § 19-03.1-01(25)(a).
Construing the Uniform Controlled Substances Act as a whole, and harmonizing the prescription exception with the schedule I language, we conclude the plain language of the act does not provide for a medical marijuana prescription defense. Under the authority of N.D.C.C. § 19-03.1-02, the North Dakota Board of Pharmacy has determined that marijuana has a high potential for abuse, and no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision; this determination had been codified by the legislature. N.D.C.C. § 19-03.1-04. In this context, it does not logically follow that there could be a valid prescription for a substance that has no medical use or lacks accepted safety. We do not believe the legislature enacted the Uniform Controlled Substances Act to put North Dakota in the perplexing position where it must recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.
Larson and Kuruc also argue that their medical marijuana prescriptions can be used as a defense to negate the government's claim that the amount of marijuana possessed evidenced an "intent to deliver." According to the arrest synopsis, Larson and Kuruc were arrested with approximately 12.8 ounces of marijuana. Their respective prescriptions allowed them each to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants in Washington. The district court determined that the jury "will not be instructed a prescription from the State of Washington is a valid defense to either possession with intent to deliver or simple possession. Whether the same evidence may be admissible for some other purpose is a different question, which will be considered as future developments warrant."
Rule 11(a)(2), N.D.R.Crim.P., states "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion." Here, the court left open whether the prescription could be used for some other purpose. We surmise "some other purpose" for allowing the prescription into evidence could be a factual defense to show an amount of marijuana intended for personal use and not for distribution. Although the lower court did not make an affirmative ruling, there is no indication that the court would have prohibited Larson and Kuruc from arguing to the fact-finder that the amount was commensurate with a prescribed personal use and not indicative of an intent to deliver.