§329-125  Protections afforded to a qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient.  (a)  A qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient may assert the medical use of cannabis authorized under this part as an affirmative defense to any prosecution involving marijuana under this part, part IV, or part IV of chapter 712; provided that the qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient strictly complied with the requirements of this part.

     (b)  Any qualifying patient, primary caregiver, qualifying out-of-state patient, or caregiver of a qualifying out-of-state patient not complying with the permitted scope of the medical use of cannabis shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of cannabis.

     (c)  No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of cannabis as permitted under this part. [L 2000, c 228, pt of §2; am L 2016, c 230, §10; am L 2017, c 170, §2; am L 2018, c 18, §20 and c 116, §7]

Case Notes

  Rule of lenity required the construction, under the specific facts of the case, of §§329-121 and 329-122 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under §329-121, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [§329-122(c)(2)(E)]; thus, under §701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability.  129 H. 397, 301 P.3d 607 (2013).