Considerations for Medical Marijuana (MMJ) Patients
Are there Louisiana State Laws in place for MMJ for drivers?
LA RS 40:966(F) is the section of criminal law which dictates penalties for marijuana possession and distribution, and outlines protections for patients and industry workers. This section only protects against possession and distribution charges. There are no specific “driving related” provisions specific to MMJ use.
What are the laws related to “Rules of the Road” when using Medical Marijuana?
There are no current specific protections against Driving Under the Influence (DUI) for MMJ Patients in Louisiana.
What happens if an MMJ Patient is pulled over when driving and there is the smell of weed in the car – can your car be searched?
The short answer is Yes. The long answer is Yes probably. Warrantless searches require “probable cause” that a crime is being or has been committed. In this instance, Louisiana provides for “impairment” DUI laws whereby a driver can be considered guilty if operating a motor vehicle “under the influence” of any-type of scheduled drug, including therapeutic marijuana. When compared to alcohol, which has an exact standard for determining intoxication of 0.08 grams of alcohol per one hundred cubic centimeters of blood, what it means to be “under the influence” of cannabis is somewhat subjective (1).
What can I do if I am pulled over for possession of having Medical Marijuana in my car and I am charged?
If an MMJ Patient is charged with possession, it is the responsibility of the patient to prove that they are a medical patient. The MMJ Patient must raise this defense themselves and reproduce their medical records which contain the legitimate recommendation to possess marijuana for therapeutic use in a form issued by a licensed health professional to recommend MMJ to patients (2). Because the burden of proof is on the patient, it is important that you inform your attorney of your status as an MMJ patient. This defense only applies to medical marijuana products which were purchased legally from a licensed marijuana pharmacy and are in the possession of the intended patient or caregiver.
What type of field testing could occur if an MMJ Patient is pulled over while driving?
Field testing will be somewhat dependent on the police training and their handbook. There is no uniform approach for determining when someone is “under the influence”. If the police officer determines that probable cause exists to search the vehicle and/or subject the suspect to a field sobriety test, the officer could use any tools his office has to determine if the person is “under the influence”.
Is there a delineation between what is civil vs criminal? What are the differences by parish?
Under Louisiana State law, first conviction of less than fourteen (14) grams is considered a civil offense punishable by a fine of up to $100. This fine is imposed by the issuance of a summons ticket. Additional penalties occur if the person fails to respond to the ticket or pay any fine assessed after conviction. First conviction of more than fourteen (14) grams is a criminal penalty punishable by up to a five-hundred dollar ($500) fine and up to six months in jail. Additional penalties under state law may result from cannabis possession convictions such as the suspension of a person’s driver’s license or used to enhance the penalties of subsequent convictions.
For Possession, charges can vary by Parish:
- For New Orleans under 2.5 lbs is a civil ticket. This ticket is not applicable if you are an MMJ Patient in the program. This only applies if the person is charged under New Orleans city laws as opposed to state laws. Anything above 2.5 lbs of cannabis would be considered criminal under New Orleans and State Laws.
- Each Parish can vary regarding Possession charges.
- Please note, driving under the influence of marijuana is considered a crime in all parishes regardless of medical status.
References:
- The DUI law can be found here: https://legis.la.gov/Legis/Law.aspx?d=78751
Certain defenses are outlined here: https://legis.la.gov/legis/Law.aspx?d=98880.