Questions to Ask a DEA Attorney About Medical Marijuana Defenses

Questions to Ask a DEA Attorney About Medical Marijuana Defenses

If you are considering using medical marijuana, it’s important to understand your rights and potential legal risks. Consulting with a DEA attorney knowledgeable about medical marijuana laws can help protect you. Here are some key questions to ask:

How do state medical marijuana laws interact with federal law?

Although almost three-quarters of states have legalized medical marijuana, federal law still prohibits it. This has created a confusing patchwork of laws. Under the 10th Amendment, states can pass laws that differ from federal law. However, federal law takes precedence. So federal agencies like the DEA can still prosecute marijuana crimes, even in states where it is legal.

What is the DEA’s current policy regarding medical marijuana enforcement?

The DEA focuses enforcement on international drug traffickers and large-scale distribution networks. In 2014, Congress passed a spending bill prohibiting the DEA from using funds to interfere with state medical marijuana laws. The Rohrabacher-Farr Amendment has been renewed annually, blocking the DEA from prosecuting medical marijuana patients and providers following state laws. However, it does not apply to recreational marijuana.

Can I still face federal prosecution if I use state-legal medical marijuana?

Yes, it’s still possible. The Rohrabacher-Farr Amendment only prevents the DEA from spending money to prosecute state-legal medical marijuana activity. But you could still potentially face charges from the DEA or FBI. However, the likelihood of prosecution is low compared to a decade ago. Federal law enforcement tends to focus on large illegal grows and trafficking operations.

What are some potential federal penalties for medical marijuana?

Potential federal penalties for marijuana depend on the amount and your criminal record. Personal marijuana use can lead to up to one year in prison and a $1,000 fine. Manufacturing or distributing less than 50 kilograms can result in 5 years and $250,000 in fines. Penalties increase with larger amounts. Federal sentencing guidelines also take into account your criminal history and role in the offense.

How can I reduce my risk of federal prosecution?

The best protection is to fully comply with your state’s medical marijuana laws and regulations. Avoid activities like growing large numbers of plants, carrying marijuana across state lines, or distributing to non-patients. Being part of a state registry program also demonstrates you are using marijuana medically, not recreationally. Keep quantities to a reasonable amount for personal medical use.

Can I lose access to federal benefits if I use medical marijuana?

Yes, federal law requires that you cannot possess illegal drugs and still receive benefits like public housing or student loans. Testing positive for marijuana could cause issues with programs like SNAP or TANF as well. Veterans also risk losing VA services if they use marijuana.

Does medical necessity provide any defense against federal charges?

Unfortunately, it does not. Federal courts have ruled that medical necessity is not a valid legal defense against marijuana charges. In United States v. Oakland Cannabis Buyers’ Cooperative, the Supreme Court found the CSA does not allow an exception for medical use. However, juries have occasionally shown leniency to ill defendants.

Can I travel with medical marijuana?

No, it is illegal to transport marijuana across state lines, even if traveling between two states where it is legal. The federal government controls interstate commerce. Flying with marijuana is also prohibited and can lead to being banned from future flights. Driving across state lines with marijuana can potentially lead to federal trafficking charges.

What about guns and medical marijuana – can I own both legally?

Under federal law, it is illegal for a medical marijuana patient to purchase or possess firearms. Form 4473 that must be completed to buy a gun asks if you are an unlawful user of controlled substances. Answering no when you use marijuana is considered falsification and carries up to 5 years in prison. Medical marijuana patients cannot legally purchase guns from licensed federal firearms dealers.

Does attorney-client privilege apply to discussions about medical marijuana?

Yes, confidentiality privileges still apply. Attorney-client privilege protects candid conversations about potentially illegal activity, including medical marijuana use. This allows patients to be open about their situation when seeking legal advice. However, privilege can be waived if the communication is shared with third parties.

How does medical marijuana impact parenting rights?

Using medical marijuana by itself does not demonstrate parental unfitness. However, smoking around children or impairment while parenting can be used against you in a custody case. Be discreet, use moderately, and never drive impaired with kids. Consider alternatives like edibles or tinctures. Always put your child’s safety first.

Can I lose my job for using medical marijuana?

It depends. If your employer does business involving the federal government, they can fire you for illegal drug use under the Drug Free Workplace Act. Otherwise, many states protect employees’ rights to use medical marijuana outside work. But you can still be fired for impairment on the job. Check your state’s laws and your employee policies.

Does the DEA recognize a difference between medical and recreational marijuana?

No, the DEA considers all marijuana use completely illegal, regardless of whether it is for medical or recreational purposes. But DEA agents do have some discretion to decide how to focus resources. Typically recreational users are lower priority for enforcement compared to traffickers or sources of illegal supply.

Can I deduct medical marijuana on my taxes as a medical expense?

No, the IRS prohibits deducting any expenses related to illegal activities. That includes medical marijuana, even if legal under your state laws. The IRS follows federal law, which does not recognize marijuana as medicine. However, some states like California do allow state tax deductions for medical marijuana.

I hope these questions help provide some clarity about where things currently stand between conflicting federal and state marijuana laws. The legal landscape is complex, but consulting with an experienced DEA attorney can help you make informed decisions and minimize risks. Be sure to follow your state’s specific medical marijuana program requirements carefully. While federal prosecution is less likely today, it is still possible under the right circumstances. Proceed with caution.