Medical Marijuana Laws
New Hampshire Medical Cannabis / Marijuana Law- Overview
NH has a limited medical marijuana law that is more restrictive than the laws of most States that have enacted protections for medical marijuana users. The primary limitations are:
- The patient must possess a valid registry identification card (see out-of-State visitors, below)
- The patient can possess no more than two ounces of "unusable cannabis."
- The marijuana must be obtained from a regulated dispensary
- Legal protection is reserved for the patient holding the prescription, and a "designated caregiver."
- NH law does not authorize a medical cannabis prescription for many illnesses and medical conditions that the law of other States cover. More on this below.
- The law grants a presumption of lawful therapeutic use to a person in possession of two ounces or less of marijuana who meets the above requirements. However, the police or prosecution can bring a charge and attempt to rebut that presumption by proof beyond a reasonable doubt that the person's "conduct related to cannabis" was not for medical purposes. So if the person is possessing and / or using marijuana for recreational purposes, selling it to others, sharing with friends who don't have a prescription, etc., the person is not protected from criminal prosecution or prosecution under NH's limited decriminalization law.
- NH's medical marijuana laws cannot protect a person from prosecution in federal court. Possession of marijuana is prohibited by federal laws that make no exception for medical use, even if approved by the person's home State. This is primarily a concern for growers and other manufacturers of marijuana. Fortunately, federal prosecutors generally do not prosecute people for possession of small amounts of marijuana.
NH DWI Laws and Medical Marijuana
NH law does not protect a medical marijuana user who operates a car or truck, off-road vehicle, snowmobile or boat while under the influence of marijuana. Having a medical prescription, and being a lawful user of marijuana, is not a defense to driving under the influence of drugs.
This is not a special rule for medical marijuana patients. For example, a person holding a valid prescription for Klonopin (clonazepam), who drives under the influence of Klonopin such that his or her ability to operate a vehicle is impaired to any degree, can be prosecuted for driving under the influence of drugs.
Qualifying Medical Conditions are Limited
The list of qualifying medical conditions was, initially, extremely limited compared to other States, but is now expanding. In 2017, the governor signed legislation that:
- Added “chronic pain” (HB157, effective August 15, 2017)
- Added “post-traumatic stress disorder”, (HB160, effective Aug 27, 2017)
- Expanded access to cannabis for those afflicted by hepatitis C (SB17, effective June 16, 2017).
- Another bill (SB144), that has passed the House and Senate in different versions but not yet reconciled, would further relax certain limitations on the definition of qualifying medical condition.
Visitors, Out-of-State Residents and Medical Cannabis
An out-of-State resident caught in NH in possession of marijuana, who holds the equivalent of a registry identification card but issued by another State, may be protected under this law. However, this relatively new law has not been tested in Court yet and there are many unanswered questions, such as:
- Is the person protected if they possess more than two ounces, and their home State allows them to possess more than two ounces of medical cannabis, but NH does not allow its own residents to possess more than two ounces of medical cannabis? (The prudent practice would be to never travel to or through NH with more than two ounces of medical cannabis).
- Is the person protected if they suffer from a medical condition that is not recognized as a qualifying medical condition in NH?
- Is the person protected if their home State allows them to grow their own marijuana or use any marijuana they can get their hands on, so its not provided by a regulated registry?
Employment Discrimination Protection for Medical Cannabis Users
In January, 2022 the NH Supreme Court ruled in favor of an employee of the company "Ride-Away," who was fired for a positive marijuana test at work, despite having a valid medical cannabis card. Scott Paine v. Ride-Away, Inc. (Jan. 14, 2022) Under our State's law, and under federal law, employers cannot discriminate based on an employee's disability, and must provide reasonable accommodations for that disability. In this case, the employee suffered from PTSD, and acquired a medical cannabis card to use marijuana as medicine when not at work, to help him live with his disability. The employee did not assert a right to use marijuana at work. We are all familiar with the unfairness and downright stupidity of employment drug testing policies that cause a person to be fired on Wednesday for a positive drug test that reflects the fact that the person smoked marijuana the weekend before, while not at work. This new Paine decision protects employees who use medical cannabis from employment discrimination.
The take-away from the Ride-Away case? If you use marijuana as medicine, "legalize it" by getting a cannabis card from your physician, so you can gain the protection of the law.
Ted Lothstein and Richard Guerriero have a combined 50-plus years of experience defending the accused, including hundreds of clients charged with drug crimes in State and Federal Court. Further, Ted Lothstein has taught seminars on NH's medical marijuana laws sponsored by the New Hampshire Association of Criminal Defense Lawyers (May 19, 2017) and the New Hampshire Bar Association (scheduled for October 13, 2017). If you or someone close to you is being prosecuted for a marijuana offense in NH and you think they may have a medical cannabis defense, we encourage you to give us a call!
-- Ted Lothstein