The state’s medical marijuana law is unconstitutionally vague and endangers the rights of patients who grow their own weed, according to a case that the Supreme Judicial Court has agreed to hear.
The case stems from the 2013 arrest of a Framingham man caught in a legal twilight zone: He was permitted by the state to grow medicinal pot in his home, but was collared for distribution when police stumbled upon how many plants he had in his basement.
“This is an area of the law that is unclear, that is unconstitutionally vague, and as a result our client’s rights were violated,” said Hopkinton attorney Allison Callahan, who successfully petitioned the case to the Supreme Judicial Court.
Some medical marijuana patients can grow enough pot for a 60-day supply under vague state rules that do not denote exactly how many plants patients can grow — leaving police and the court system to guess at patients’ intentions.
In September 2013, Framingham police responded to a report of a home invasion. Officers arrived, searched the house and found 22 marijuana plants growing in the basement. The resident who made the call, Joshua Richardson, told cops he had a medical marijuana license with a hardship permit to grow, but he was arrested for unlawful possession and possession with the intent to distribute.
At trial, a police detective told the court that the plants would yield much more than the allowed 10 ounces of marijuana per 60 days. An expert for the defense countered that many of Richardson’s plants would not have yielded usable marijuana for various reasons, such as the unknown gender of the plants, their strain, and the quality of growing conditions. The defense expert said Richardson would have been lucky to get 10 ounces from the plants.
In August 2015, a jury convicted Richardson, who was sentenced to 18 months in jail.
The case before the SJC argues the regulations of the medical marijuana law are “unconstitutionally vague” — they do not state how many plants are too many, in effect leaving patients “open to prosecution if they mistakenly grow too many plants or yield too much marijuana.”
“These basic policy decisions were impermissibly left in the hands of police, judges and the jury,” Callahan wrote.
Michael Maloney, a criminal defense attorney who also specializes in marijuana compliance, said if the SJC rules that the portion of the law is unconstitutional, it would “have an enormous ripple effect in the cannabis industry.”
“Realistically the law has to provide more clarity for patients,” Maloney said. “This is a strong, credible case.”
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