Flying high? Your MMJ inquiries, answered

Burning Questions
By VALERIE VANDE PANNE  |  January 2, 2013


What protection will the state offer to doctors who recommend medical marijuana to their patients, as well as patients, caregivers, and dispensaries, from federal prosecution?

"Doctors have the First Amendment right to talk about things with their patients," including marijuana, explains well-known local pot attorney Steve Epstein.

But patients, caregivers, and dispensaries? What protection will the state offer them?

"None," says Epstein. "The initiative specifically says the state will provide you with no protection against federal prosecution."

"State law can't protect patients against a determined federal agent," says Robert Raich, a California medi-pot attorney, explaining that under federal law even a fraction of a gram is illegal.

In 2004, Raich represented his wife, medical-marijuana patient Angel Raich, before the Supreme Court (Gonzalez v. Raich). The case determined that the federal government could regulate noncommercial cannabis with the Controlled Substances Act, even if the marijuana is grown at home for personal medicinal use in a state where medical marijuana is legal.

"As a practical matter, the feds have neither the resources nor the desire to prosecute patients," Raich says.

According to Raich, the vast majority of marijuana cases — a whopping 99 percent — are handled by state and local authorities. "It's not really been the feds' policy to attack patients," he says.

"Treatment centers are the ones who have to watch their tushies," says Epstein. "Medical use is no defense in federal court." And if convicted of a marijuana crime, "you'll lose all your federal assistance [if you receive it] — including housing, Section 8, and SSDI, or SSI."

Will I be able to take my medical marijuana across state lines?

According to Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML): yes, you can! But it depends on the state. Arizona, Maine, Michigan, Oregon, and Rhode Island all offer what's known as "reciprocity" — they are medical-marijuana states that recognize other states' medical-marijuana laws. California has nothing that expressly acknowledges it, nor denies it; many patients take their medical marijuana with them to Cali.

No matter where you are, you have to follow all local laws. The airport you are flying out of is subject to local law, and typically has local law enforcement working there. So, in theory, you're safe to board a flight in a medical-marijuana state, as long as you are following local laws.

"TSA agents are only looking for weapons or explosives," explains Raich, who spearheaded a case ensuring that patients could fly out of Oakland International Airport (OAK) with their medical marijuana. However, "[TSA] can refer the passenger to law enforcement."

"We've had plenty of anecdotal reports," says Raich, of other airports in medical-marijuana states abiding by state law and permitting patients and caregivers to board with their medical marijuana.

"You need to know the law of where you are [flying] out of," as well as where you are going. "The law of the state you're traveling to, you'll only be subjected to when you arrive," says Raich.

For example, Alameda County Sheriff's Office deputies (the law enforcement that patrols OAK) permit you to board with your medical pot on a flight to Texas, which is not a medical-marijuana state. They could call ahead and let Texas authorities know you're on your way.

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