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Current Medical Marijuana Law In Ohio

Posted on September 28, 2016 in General Criminal Law Issues - Northern KY Uncategorized

Ohio House Bill 523, Ohio’s medical marijuana law takes effect Sept. 8. Under the new law people can possess and use the drug without going to jail if it is prescribed for certain medical conditions.  The new law does NOT specify where people can get marijuana.

Lawmakers have said that until the state’s dispensaries are set up, residents can travel to Michigan or another legal state and bring marijuana back. BUT, doing so is a violation of state and federal laws, as well as a key provision of the federal government’s hands-off approach to regulating state medical marijuana programs.

So most people will likely buy marijuana through Ohio’s existing black market.

Here’s why.  Medical marijuana is now legal in Ohio, but it could be two years before the program is operational.

What’s the Problem?  The law establishes an “affirmative defense” against prosecution for possessing marijuana and paraphernalia that would be legal under the law. That defense expires 60 days after the state begins accepting applications for patient registry identification cards, which is another several months away.

Until then, the defense applies only if the patient’s physician has certified, in writing, the following:

  • That the patient has been diagnosed with a qualifying medical condition
  • That the physician has gone over the risks and benefits to using medical marijuana.
  • That the physician thinks the benefits of the patient using marijuana outweigh its risks.

And the marijuana in question must be acceptable under the law, which allows plant material, edibles, patches, oils and tinctures but prohibits smoking. That means smoking marijuana, possessing gummy bears and other edibles that would be attractive to children or growing your own marijuana would not be protected by the defense.

Doctors are unlikely to sign off on patient marijuana use before then, said John Hudak, who studies marijuana policy at the Washington D.C.-based Brookings Institution.  “Doctors should not assume that prior to the board of pharmacy regulations coming out that this system is up and running and fully functional,” Hudak said.

What about Kentucky and other out-of-staters 

Pennsylvania and Michigan have legalized medical marijuana. But Pennsylvania’s dispensaries won’t be set up for two years.

And it’s not clear whether Michigan dispensaries would sell to Ohio patients. Michigan law allows medical marijuana sales to people with patient ID cards issued in other states. But Ohio patient ID cards won’t be available for months.

Michigan attorney Barton Morris said a doctor’s recommendation obtained in anticipation of the affirmative defense might qualify as an acceptable replacement for an ID card. But he said that as well as all out-of-state cards are accepted at the discretion of each dispensary.

Driving to Colorado — also a suggestion floated by lawmakers — could be even more problematic. There is no route from Colorado to Ohio that only passes through legal marijuana states. And flying with cannabis is illegal.

 

What about Federal prosecution 

Medical marijuana is legal in 25 states and the District of Columbia, but remains an illegal, Schedule I substance under the federal Controlled Substances Act.

The U.S. Department of Justice under President Obama said in 2009 it would not focus federal resources on prosecuting crimes that were legal in medical marijuana states. The policy was extended to states that have legalize recreational marijuana states in a 2013 memorandum signed by Deputy Attorney General James Cole.

The “Cole Memo” laid out eight priorities for enforcing federal marijuana laws. Among them, preventing diversion of marijuana from legal states to “other states.”  Hudak said encouraging bringing in marijuana from another state — even neighboring Michigan — is a clear violation of the Cole Memo.

Can I use my normal supplier?

If patients can’t get medical marijuana from another state, where can they get it?  “Wherever they can find it available — any source is allowed,” Burke said.  *NOTE: Nothing in this new law permits sale of medical marijuana by non-licensed vendor.  Trafficking of marijuana remains a crime under both state and federal laws.

That includes drug dealers selling marijuana illegally grown here or trafficked in from elsewhere. Burke said the law does not change enforcement of laws against that activity but was meant to help Ohio patients.

If you have been charged with a crime, hire a criminal defense attorney.  For representation in Northern Kentucky and Cincinnati, call attorney Michael Bouldin at 581-MIKE;  859-581-6453 or email at mwbouldin2@gmail.com