A medical marijuana patient who harvests his own plants has asked the Montana Supreme Court to review his pending felony case in Yellowstone County.

Wayne Steven Penning, 65, has asked the Montana Supreme Court to rule on whether the state has the right to prosecute medical marijuana patients in possession of more than one ounce of marijuana, even if the plant is not dried yet.

As of November 2016, 6,557 out of 7,558 medical marijuana patients grew their own marijuana, according to the Montana Marijuana Program Current Status Report.

Yellowstone County District Court Judge Rod Souza ruled that the question of whether the marijuana is dry should be answered by a jury. The court also found drying begins when the bud is cut from the stalk of the marijuana plant.

The Montana Supreme Court should intervene in this case, Penning said. The question of whether it is illegal to possess partially dried marijuana affects thousands of marijuana patients and law enforcement across the state.

Penning believes the district court’s ruling makes it illegal for cardholders to harvest their plants.

Penning was charged by Yellowstone County prosecutors with felony criminal possession of dangerous drugs with intent to distribute in December 2015. A Montana Highway Patrol trooper had pulled over Penning for speeding in October 2015. Penning, a cardholder in the Montana Marijuana Program, was transporting the harvest of his four marijuana plants in sealed containers.

The trooper arrested Penning for possessing more than one ounce of marijuana allotted to him under the marijuana program.

Penning asked Souza to dismiss the case because the marijuana Penning had in his car was not dried, and not usable marijuana.

Penning would harvest his crop, dry part of it, and refrigerate the rest, drying it one ounce at a time, according to his testimony in district court.

Montana Highway Patrol Bureau Chief Mark Long testified marijuana is in the process of drying at two different times: either 20 minutes after being cut off the plant or as soon as it is cut from the plant.

A mature female marijuana plant can produce up to 16 ounces of marijuana per yield, according to Penning’s petition to the Montana Supreme Court. At the point of harvest, medical marijuana patients will possess more than one ounce of marijuana plant, Penning’s petition said.

If Penning is found guilty of the charge against him, he would lose access to his medical marijuana card.

Penning is represented by Billings attorney Penelope Strong. The case is being prosecuted in Yellowstone County by Yellowstone County Attorney Scott Twito and Senior Deputy County Attorney Victoria Callender.

The Montana Supreme Court has requested a response from prosecutors or Souza by mid-February.

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