Medical Marijuana is now available in Pennsylvania and New Jersey. Here is the who, what, when and how a person may use this controversial drug.

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.


It's Saturday and many are enjoying it with family and friends!  It's also a great opportunity for our criminal defense law firm to provide some more information about hottest legal topics in Pennsylvania and New Jersey.  Many of our clients have asked about medical Marijuana and so we've put together our top 10 questions about this controversial drug treatment 


1.  Who is eligible for Medical Marijuana? 


A person must have a terminal illness, suffer from cancer, HIV/AIDS or the following conditions: 

  • Amyotrophic lateral sclerosis, 

  • Parkinson’s disease, 

  • Multiple sclerosis (MS), 

  • Epilepsy, 

  • Inflammatory bowel disease, 

  • Neuropathies, 

  • Huntington’s disease, 

  • Crohn’s disease, 

  • Post-traumatic stress disorder, 

  • Intractable seizures, 

  • Glaucoma, 

  • Autism, 

  • Sickle cell anemia, 

  • damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, 

  • severe chronic or intractable pain of neuropathic origin, 

  • or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective. 


In addition to these conditions, Pennsylvania and New Jersey can approve additional debilitating medical conditions. 


2.  How can an eligible person obtain this drug? 


In Pennsylvania, a patient who qualifies must obtain a doctor’s certification to enroll into the program. The doctor is only permitted to issue a certification if the physician completes a four hour course on medical cannabis. This physician certification must state that the patient is under the doctor’s ongoing care and that the patient is likely to receive a therapeutic or palliative benefit from the medical marijuana. 


In New Jersey, an individual may possess, legally, as much as 2 ounces per month but does not allow home cultivation. A person may purchase marijuana from a state license dispensary and there are 5 across the state located in Bellmawr, Woodbridge, Cranberry, Egg Harbor, and Montclair. Together these dispensaries have sold more than 2,694 pounds of cannabis and have distributed the drug to 10,000 patients. 

It’s important to keep in mind that a patient cannot apply for medical marijuana without a doctor. There are roughly 28,000 registered physicians in New Jersey but only 517 have volunteered to enroll in the medical marijuana physician registry as of this year. The majority of physicians who are certified are internists, family practitioners, and specialists. 


3.  What are the acceptable forms of the drug available to patients? 


In Pennsylvania, the following are acceptable forms of medical marijuana: 


  • Pill 

  • Oil 

  • Topical forms – gels, creams or ointments, 

  • Vaporization or nebulization, 

  • Tincture 


New Jersey does not restrict the forms of Marijuana if the person is eligible for the drug under the statute based on a qualifying medical conditions. 


4.  Will a medical marijuana prescription affect my gun rights in Pennsylvania and New Jersey? 


Yes.  The Federal Government still treats all forms of marijuana as a Schedule I Controlled Substance with no accepted medical purpose.  Federal law prohibits an “unlawful user” of any controlled substance from possessing firearms, and under federal law.  Notice the federal

government still considers medical marijuana “patients” as “unlawful users” despite what individual states are doing to legalize the drug.  Given this restriction, the person who chooses to use medical marijuana in Pennsylvania or New Jersey is prohibited from a possessing a gun or firearm under federal law. 


5.  Is it a crime to drive (DUI) while taking medical marijuana in Pennsylvania? 


Yes.  In Pennsylvania a person is guilty of a drug DUI under Section 3802(d) if they are operating a motor vehicle and under the influence of any drugs or the combination of drugs or alcohol. Under section subsection (d)(1) of the section, the prosecution doesn’t need to establish any specific amount (nanograms) just that the person was under the influence of drugs through direct or indirect evidence. While a blood test can reveal the presence of a drug (legal or illegal) or alcohol, it’s important to understand that a person can still commit a DUI under Section 3802(d) even if the drug is legally prescribed.   


6.  If I'm eligible for Medical Marijuana, can I use it wherever and whenever I want in Pennsylvania? 


No.  Patients who qualify for medical marijuana may not do any of the following: 

  • Grow marijuana 

  • Drive under the influence of marijuana (DUI) 

  • Give or sell marijuana 

  • Possess marijuana on a school bus or on school grounds 

  • Use marijuana in a public place 

  • Smoke marijuana 

  • Use dry leaf or whole plant marijuana 

  • Utilize medical marijuana in any work place while performing dangerous activities 

  • Purchase food or drink infused marijuana 


7.  If I'm charged with the illegal possession medical marijuana what is the criminal penalty in Pennsylvania? 


In Pennsylvania, the illegal possession of a controlled substance like marijuana (along with crack cocaine, heroin, PCP, or any other controlled substance) is a misdemeanor crime.  A misdemeanor is much less serious than a felony offense as it does not typically expose a person to state prison time. Possession with the intent to deliver (PWID) or distribute in Pennsylvania under Title 35 § 780-113 (a)(30) is an ungraded felony which ranges from in criminal penalty from probation to a lengthy state prison sentencing depending on the weight involved in the allegation.   


8.  If I'm charged with the illegal possession medical marijuana what is the criminal penalty in New Jersey.   


New Jersey, under Section 2C: 35-10 makes the illegal possession of a controlled or illegal substance like marijuana a felony offense. While the Garden State does treat marijuana somewhat different than other drugs, the possession of 50 or more grams is a crime of the 4th degree while less than 50 grams is a disorderly persons offense. While second offenses do not increase the criminal level of the offense, in New Jersey it does increase the potential consequence with regards to prison time and fines. 


Remember that New Jersey doesn’t classify crimes as misdemeanors or felonies, but rather indictable crimes vs. offenses. Indictable crimes range from the 1st to the 4th degree with the 1st degree reserved for the most serious crimes which would include some serious drug offenses depending of upon the weight and the drug in question. 


9.   Is CBD oil a form a medical marijuana? 


Yes.  Cannabidiol (CBD) is one of the main cannabinoids found in the marijuana plant, which is extracted from the plant, without the chemical compound Tetrahydrocannabinol (THC), which delivers the “high” from marijuana (Schedule I controlled substance).  CBD has been shown to improve a wide variety of medical conditions ranging from mental to physical health including epilepsy and certain anxiety disorders, along with its ability to relieve pain symptoms due to its anti-inflammatory properties.  It, however, remains a prohibited substance in the NCAA, along with most professional sport associations (MLB, NHL, NFL, NBA)   


10.   If I am charged with marijuana related offense, what are my options? 


You need to hire the right lawyer but understand that you have a number of options available to you!  Your lawyer should asses the legality of the police contact that led to your arrest (illegal search and seizure) and your probability of success at trial.  If there is a low probability of success, Pennsylvania and New Jersey have diversion programs such as Pennsylvania’s ARD, AMP, or New Jersey’s Conditional Dismissal, discharge, or pre-trial intervention. A condition of these programs is typically that an individual remain arrest free and completes certain conditions like community service or drug classes. If the defendant satisfies these conditions, the prosecution will simply withdraw the case (drop the charges) and expunge your criminal record.

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