Two of the most highly debated subjects in the United States are gun possession and the regulation of marijuana. With states having their own laws on the matter, it can be confusing to know exactly what is legal. The coinciding use of medical marijuana and firearm possession in Nevada is a part of those confusing matters.
For one, can you be a user of medical marijuana and own a gun? Are there special rules for those that want to do both? We will answer these questions and more.
Firearm Laws in Nevada
Nevada law permits the open carry of firearms. There is no requirement to obtain a license or to register a firearm, but it requires people to have a Concealed Carry Firearm (CCW) permit to carry a concealed weapon. Background checks and a fingerprint record on file with the state are required during all gun sales in Nevada. The law also says that firearms are not permitted in public schools, childcare facilities, or government buildings.
Residents who violate the state’s firearm laws face prison time. Offenses that violate Nevada’s firearm laws include:
- Using a firearm to commit a crime
- Being a felon in possession of a firearm
- Possessing a firearm while under the influence of alcohol or drugs
- Brandishing a firearm
Medical Marijuana vs. Recreational Marijuana
Medical marijuana use is permitted in Nevada as long as a person has a medical marijuana card and no more than 2.5 ounces of the drug in any one 14-day period, per NRS § 453A.200. Cardholders must be age 18 or older and receive approval for marijuana use from a physician who can attest the patient has one of the following ailments:
- Post-traumatic stress disorder (PTSD)
- Cachexia (extreme weight loss due to a severe chronic illness)
- Chronic pain
- Nausea (usually from treatments like radiation or chemotherapy)
- Muscle spasms
Recreational Marijuana Use in Nevada
Recreational cannabis users in Nevada do not need a medical marijuana card. However, they must be at least 21 years old and have no more than 1 ounce of marijuana or 1/8 of an ounce of any other marijuana-related product, such as hash or concentrate. They must also follow other rules that say they cannot smoke in public spaces and are limited to growing no more than six marijuana plants.
Federal Legality of Marijuana
Recreational marijuana use is illegal at the federal level. In some states, medical marijuana use is legal, while recreational use is not. In Nevada, recreational and medical marijuana are legal as of 2017. This means people can freely consume the drug on private property, although there are limits on how much they can have at a time.
However, some areas of this law are vague or contradictory, leading to legal issues, especially where the ownership of firearms is concerned. While the Second Amendment of the U.S. Constitution grants Americans the right to possess firearms, NRS § 202.360 also says a person under an addiction to a controlled substance cannot lawfully own a gun. This has led to the prosecution of many users being charged with unlawful possession of a firearm.
Medical Marijuana Users Are Being Charged with Illegal Possession of Firearms
Per NRS § 202.360, it is a felony for certain people to own a firearm, which includes, “an unlawful user of, or addicted to, any controlled substance.” Marijuana, while legal for recreational use in Nevada, is still a controlled substance. Therefore, those who follow the regulations for using and possessing marijuana can still face misdemeanor or felony charges for owning a firearm.
Prohibited Persons in Possession of a Firearm
Certain people are prohibited from possessing a firearm, per NRS § 202.360. This includes ex-felons, those convicted of misdemeanors, those convicted of domestic violence, those under the influence, and other individuals the court deems unsafe or at risk for misuse of a firearm.
While medical marijuana is legal, it is still a controlled substance. This puts conflicting laws in place that can put medical marijuana cardholders at risk of being a “prohibited person.”
Can Someone Be Charged With Illegal Possession of a Firearm Even Though Marijuana Is Legal in Nevada?
The short answer, unfortunately, is yes, though this is a bit complex. Marijuana users, even those with a medical marijuana card, may be found guilty and charged with a felony crime.
Medical Marijuana Cardholders Can Be Considered Prohibited Persons
A person with a legal medical marijuana card registered with the state is still subject to firearm laws. This means they may discover it is hard to find an affirmative defense when accused of being under the influence while possessing a firearm.
Possession does not mean an individual needs to physically have a gun on their person; merely owning or having a weapon on their property is considered possession. While they may also not be under the influence at the time of their possession charge, the mere fact that they have a medical marijuana card implies they are frequently under the influence of a controlled substance.
While the 202.257 statute does not specifically identify marijuana, the fact remains that this is sometimes a legal gray area. Knowing the laws thoroughly can help in these cases, but because of conflicting regulations, having a lawyer to pursue all possible defenses can improve a cardholder’s chances of being found not guilty of illegal firearm possession.
Repercussions of Owning a Firearm as a Prohibited Person
If you are caught owning a firearm as a medical marijuana cardholder, you may face charges for illegal possession. Generally, most cardholders are unlikely to face federal prosecution for their marijuana use, but a case’s outcome can depend on the court judge, jury, or the crime. Those found guilty of illegally possessing a firearm in Nevada have committed a Category D felony, per NRS § 193.130, and can face up to four years in state prison and fines up to $5,000.
How a Lawyer Can Help With an Illegal Firearm Possession Accusation
The good news is that while there are confusing areas of the law that may get a medical marijuana cardholder in trouble for owning a firearm, it also leaves room to clear them of that charge. The ambiguity between firearm and medical marijuana laws allows defense attorneys the opportunity to persuade the court to find in favor of the accused in different ways.
Defenses for Medical Marijuana Cardholders in Possession of a Firearm
The primary defense for any prohibited person being accused of owning a firearm is to argue they did not have the firearm in the first place. Another defense to add to that would be proving that someone was arguably not a “prohibited person” and, therefore, their firearm possession would not have been illegal. For instance, a medical marijuana cardholder is not a drug addict under certain definitions.
Other factors that can reduce criminal charges can include:
- The accused did not legally own the firearm.
- The accused did not have custody or control of the firearm.
- The firearm was obtained under an illegal search or seizure.
- The offender did not know they had possession of the firearm (e.g., someone planted it or left it on their property).
- There is not enough evidence to prove the defendant is addicted to the controlled substance they use (in cases of medical marijuana users).
- There is a lack of evidence to prove the offender possessed a firearm.
Call Us for a Medical Marijuana and Firearm Possession Case
The legal team at De Castroverde Criminal & Immigration Lawyers understands the complexities involving medical marijuana and gun laws in Nevada. If you or a loved one is facing firearm possession charges and you or your loved one uses medical marijuana, our Nevada criminal defense lawyer can review your situation and advise you of your legal options.
Call us today for a free, confidential consultation. We can answer your questions as you determine your next steps. The sooner you reach out to us, the sooner we can get to work for you.