The Montana Supreme Court declined to step into the criminal case of a Montana medical marijuana patient who is challenging the possession limit statute.

The case of 65-year-old Wayne Steven Penning, who faces a felony count of criminal possession of dangerous drugs with intent to distribute, is still pending in Yellowstone County District Court.

In January, Penning had asked the Supreme Court to take over the case to consider his request to dismiss the charge. He argued that the medical marijuana statute, which limits cardholders to possession of one ounce of "usable" marijuana, is too vague. 

Penning was arrested for exceeding that limit in 2015 when a Montana Highway Patrol trooper stopped him with harvested marijuana from four of his plants. 

Penning argued that the marijuana was not fully dry and therefore not "usable."

Yellowstone County District Court Judge Rod Souza has declined to dismiss the case, saying that the determination of usable marijuana should be left to a jury.

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In declining to take over Penning's case while it's still ongoing in the District Court, the Supreme Court justices wrote that Penning's argument of usable marijuana is a "question of fact, not a question of law."

The case would still be open to appeal to the Supreme Court after final judgment in Yellowstone County.

A future ruling on the case could set precedent for interpretation of the word "usable" in the medical marijuana law. However, one bill in the Montana Legislature that outlines regulations for the medical marijuana industry would change the possession statute altogether.

A trial date is currently set in District Court for May 8, though other motions could be filed before then.