Medical Marijuana in NH - Strategies for NH Criminal Defense Attorneys

After years of trying, medical marijuana activists are closer than ever before, to passing a law that would allow NH to become the last New England state to legalize medical marijuana. An expansive version of the law passed the NH House overwhelmingly, earlier this year. However, the Concord Monitor reports that a Senate Committee has now stripped out of the bill, several important provisions. One of these got most of the public's attention - the Senate committee removed the so-called "Home-Grow option" allowing those afflicted by illness to grow their own medical marijuana, even though medical marijuana dispensaries will take years to get up and running.

Another controversial change, however, would arguably take needed medicine away from combat veterans and abuse victims, among many others. The Senate Committee removed Post-Traumatic Stress Disorder from the list of illnesses that could lawfully be treated with medical marijuana. It is well known that in the wake of the Gulf War, Iraq War and the continuing carnage in Afghanistan, that many of our veterans have been afflicted by PTSD.

If medical marijuana becomes law, but authorities continue to prosecute those who grow their own medical marijuana and those who receive a medical marijuana prescription to treat PTSD, how will NH criminal defense attorneys defend those cases?

For the home growers, the NH defense attorney may raise a "competing harms" defense. This defense to criminal prosecution, authorized by a NH statute and caselaw, allows a criminal defendant to argue that she should be acquitted because her actions, although technically illegal, were undertaken to avoid a greater harm than the harm for which the criminal law at issue serves to protect against. For example, NH cases allow a NH DWI attorney to argue that a citizen under attack by a violent assailant, could be justified in driving under the influence, in a situation where there was no available alternative to avoid harm. Thus, in State v. L'Heureux, 150 N.H. 822 (2004), the NH Supreme Court reversed a conviction for driving under the influence where the trial court did not allow the defendant to argue that his conduct was justified by the urgent necessity of escaping a violent attack, where there was no safer alternative to driving away from the scene.

Thus, a NH criminal defense attorney may argue that with no available medical marijuana dispensaries, and in the face of debilitating illness, the accused's conduct in growing her own marijuana was justified under the competing harms defense. After all, the harm sought to be prevented by the Bill as amended by the Senate committee - the inconvenience to law enforcement in having to actually investigate their cases and sort out who was growing marijuana for lawful as opposed to unlawful purposes - is a de minimus harm compared to the ongoing harm caused to a person afflicted by illness who cannot get the medicine they need.

For the abuse victims, combat veterans and others afflicted by PTSD who get an out-of-state prescription for medical marijuana and choose to defy the law, the NH criminal defense attorney may argue a nullification defense. I think that prosecutors will find it very difficult to justify in a jury trial, the arbitrary exclusion of PTSD from the list of illnesses that may be treated by marijuana. This is just the type of situation where NH jurors have historically "nullified" the law, voting not guilty to make a public expression of their disgust with, and rejection of, irrational and senseless legislative enactments. -- Ted Lothstein