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Up In Smoke: An Update on North Dakota's Marijuana Laws

In November, North Dakota voters rejected Measure 3, which would have legalized the recreational use of marijuana for people 21 years of age or older. For some people, the defeat of Measure 3 was a devastating setback to reforming the state's drug laws. For others, it was a needed pause on a movement getting out of control. Either way, the marijuana laws on the books today have an uncertain future.

In addition, many lawmakers and citizen groups are now advocating for new tweaks to the laws in the upcoming year that may decriminalize small amounts of marijuana. Considering where the law was before Election Day, many North Dakotans are understandably confused about what is legal when it comes to weed, and what is a crime. If you are one of the confused, fear not! Here is a short overview of what you need to know about the marijuana laws in North Dakota as of December, 2018.

1.Recreational marijuana is still not legal in North Dakota. In spite of reforms taking place in other states (and internationally), North Dakota has yet to take marijuana crimes off the books completely. Criminal penalties range from a class B misdemeanor (up to 30 days in jail and a $1,500 fine) for being caught in possession of a small amount of weed, up to a class B felony (up to ten years in prison and a $20,000 fine) for growing or selling/delivering. A court may also order a person convicted of a drug crime in North Dakota to undergo substance abuse counseling and treatment.

2.Medical marijuana is legal, with some restrictions. Patients with certain debilitating medical conditions (there is an official list) are able to complete an online application for a registry identification card, available on the Department of Health website. Next, the patient's healthcare provider writes a written certification to the Department of Health verifying the patient would benefit from using marijuana to treat or alleviate the patient's medical condition. When the approved patient receives the registry identification card, he or she is able to purchase medical marijuana from a registered dispensary. Qualifying patients and registered caregivers are still not allowed to grow their own marijuana plants.

3.Not everyone with a registry ID card will be allowed to smoke marijuana.Purchasing the dried leaves and flowers of marijuana plants (what people usually smoke) requires special written authorization from a patient's healthcare provider. Up to 2,000 mg of other marijuana products (capsules, patches, concentrates, etc.) can be purchased from the dispensaries within a 30 day period. Under the current law, edibles are still prohibited.

4.Minors can participate in the program, with restrictions. As crazy as this may seem, it's important to remember that young people also suffer from debilitating illness, and can benefit from the effects of THC, the main active chemical found in marijuana, just like any other prescription drug. A qualifying patient who is a minor must have a "registered designated caregiver" responsible for purchasing, possessing and administering pediatric marijuana. Minors cannot use dried leaves and flowers (no smoking) or any product with a THC concentration greater than six percent (6%).

5. "Driving while drugged" is still against the law. North Dakota law treats driving while high on a controlled substance similarly to driving while drunk. Under the law, a person may not drive a motor vehicle if he or she is under the influence of marijuana to a degree which renders that person incapable of safely driving. A person legally entitled to use marijuana still cannot use the fact they were legally using while driving as a defense against any prosecution for a DUI, unless the marijuana was used only as directed by a practitioner who legally prescribed or dispensed it.

6.Employers still determine their own drug policies. If a business adopts a zero-tolerance policy to alcohol or drugs in the workplace, the business policy still controls. Employees can be reprimanded or fired for using or possessing marijuana while on the job if their employer does not allow it. The Department of Health has no authority regarding employers' drug policies.

7.Marijuana is still not legal under federal law. Under the Controlled Substances Act, marijuana is classified as a Schedule I drug, which means that the federal government views marijuana as highly addictive and having no medicinal value. North Dakota law does not make the use of medical marijuana legal under federal law, and does not create a defense to a federal prosecution. One thing North Dakotans should keep in mind is that a person who uses medical marijuana becomes a "prohibited person" under federal firearms law, and can no longer legally purchase or possess firearms while under that status, regardless of whether that person has been convicted of a drug crime. Other federal benefits, including the ability to take out federal student loans, may be affected by a person's choice to use medical marijuana, or by a criminal conviction related to marijuana possession.

As I said at the beginning, this is a short overview. The current regulations have a lot more complexity, so be sure to contact your attorney for more information about the finer points of the law. As the nation moves toward greater reforms, there is a good chance we will see new laws on the books within the next two years. The North Dakota Department of Health website (and registration card application) can be found at https://www.ndhealth.gov/mm/.

Matthew Dearth is a criminal defense attorney at Vogel Law Firm, and can be reached at 701-203-8760. If you or a loved one has questions regarding a criminal issue in North Dakota or Minnesota, including a pending drug charge, call the Vogel Law Firm and schedule a consultation today. This article is only meant to provide general information and does not in any way constitute legal advice.

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