Medical marijuana patient seeks ruling on 'usable' marijuana

BILLINGS (AP) — A medical marijuana patient is asking the Montana Supreme Court to rule whether the state can prosecute him and other patients for possessing more than one ounce of marijuana, even if the plant is not yet dry.

Steven Penning filed the request earlier this month after District Judge Rod Souza denied his motion to dismiss a marijuana possession charge.

Penning argued that the marijuana plants he had grown and harvested in October 2015 were not usable because they were not yet dry.

State law defines usable marijuana, in part, as the dried leaves and flowers of the marijuana plant.

Souza ruled that a jury should decide whether the undried marijuana plants Penning had in a sealed container in his car during a traffic stop was usable, and thus subject to state possession limits.

Penning argues Souza’s ruling could make thousands of medical marijuana patients who harvest their own marijuana subject to arrest, prosecution and the loss of their medical marijuana cards.

Under the state medical marijuana law, patients can legally possess and harvest four mature plants, attorney Penelope Strong noted.

The District Court’s ruling would mean that people growing their own marijuana would have to destroy the vast majority of their harvest, something Strong called “patently ridiculous.”

Penning’s argument notes that the Oregon Supreme Court ruled in 2007 that usable marijuana included only dried leaves and flowers and the preparations or mixtures thereof, and that Oregon’s three-ounce-per-cardholder limit of usable marijuana did not include wet marijuana.

The Supreme Court gave the state or the 13th Judicial District Court until mid-February to file a response.