§712-1240.1  Defense to promoting.  (1) 
It is a defense to prosecution for any offense defined in this part that the
person who possessed or distributed the dangerous, harmful, or detrimental drug
did so under authority of law as a practitioner, as an ultimate user of the
drug pursuant to a lawful prescription, or as a person otherwise authorized by
law.



(2)  It is an affirmative defense to
prosecution for any marijuana-related offense defined in this part that the
person who possessed or distributed the marijuana was authorized to possess or
distribute the marijuana for medical purposes pursuant to part IX of chapter
329. [L 1977, c 137, §1; am L 2000, c 228, §4]



 



COMMENTARY ON §712-1240.1



 



  Act 137, Session Laws 1977, added this section to provide a
defense for the lawful possession or distribution of drugs by authorized
persons.  In enacting the section, the legislature found that the law as then
worded made any possession or distribution of drugs criminal.  Senate Standing
Committee Report No. 1127, House Standing Committee Report No. 683.



  Act 228, Session Laws 2000, in permitting the medical use of
marijuana by persons with certain medical conditions, amended this section to
include an affirmative defense for the medical use of marijuana.  Senate Standing
Committee Report No. 2760.



 



Case Notes



 



  Legislature intended section as a defense rather than element
of an offense.  64 H. 568, 645 P.2d 308.



  As California statute did not authorize defendant to possess
or cultivate fifty or more marijuana plants in violation of §712-1249.5, trial
court did not err in concluding that this section was inapplicable to the case
and the documents submitted in support of defendant's motion to dismiss were
not clearly exculpatory; thus, trial court did not err in denying defendant's
motion to dismiss.  108 H. 169, 118 P.3d 652.