Currently, marijuana cannot be legally prescribed under Kentucky law. As such, if you have marijuana, even with a valid prescription from out of state, you may still be charged with the crime of Possession of Marijuana while in Kentucky.
Under Kentucky law, possession of a small amount (under 8 ounces) is still considered a misdemeanor. The police do have the option of arresting an individual or citing them to appear in court. Generally, if the Defendant has no other charges and is polite, they will receive a citation. Remember, prepaying a citation is an acknowledgement of guilty and amounts to a guilty plea.
Kentucky police and prosecutors justify this position because marijuana is still illegal under Federal Law. That said, there is a good argument to be made by criminal defense attorneys which would be supported by the Equal Protection and Full Faith and Credit Clauses of the U.S. Constitution. By law, persons have the right to travel between states. Article IV, section 1 of the Constitution requires that each state give full faith and credit to the public acts, records and judicial proceedings in every other state.
Review of case law does not reveal that this issue has been addressed by the Kentucky Supreme Court. This is likely due to 2 reasons: (1) the legalization of marijuana is a relatively recent phenomenon throughout the United States, with now 29 states legalizing and only 7 allowing recreational use; and (2) the relative cost of appealing a case.
Marijuana is one of the smallest punished crimes in Kentucky; generally resulting with a minimal fine and court costs. An appeal of right goes to the local Circuit Court. The Court of Appeals may consider a further appeal, but the Defendant must first request that that court grant certiorari, which is at the discretion of the appellate court. Further appeal to the Kentucky Supreme Court is also discretionary. These requests and appeals are quite costly to the paying defendant.
For more information or to discuss representation for possession or any other criminal charges, call Bouldin Law Firm at 859-581-6453 or email email@example.com.
If you or someone you love was make sure to hire the best criminal defense attorney you can afford to defend their rights. In Cincinnati and Northern Kentucky, call Michael Bouldin. Mike, together with his partner, Kristopher Nevels, have been defending in Ohio and Kentucky, including Federal Courts with well over 25 years of combined experience.
Local 12 has broken the story of the bust which included meth, cocaine, pot, pills and large cash seizure. (see link). Often a local attorney is helpful to navigate the system and at times an out of town attorney can come in and shake up the status quo without fear of offending local prosecutors and judges.
If you need an attorney, call the Bouldin Law Firm at 859-581-6453 or email us at firstname.lastname@example.org. Call 859-581-MIKE today.
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:
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 email@example.com
Kentucky law still considers marijuana to be illegal. It is not available for prescription in Kentucky, therefore it is considered to have no health care benefit and is still illegal.
The case has not been taken up on appeal when an individual has a valid prescription for marijuana from another state and is in possession of marijuana pursuant to said prescription. It is important to note that Kentucky law does not provide an exception for possession by having a prescription. Therefore, this is a question without a definitive answer at this point. The safest and only sure bet, is to not possess marijuana in Kentucky. If you have a prescription and believe that it is necessary to possess it in Kentucky, you should keep a copy of your prescription and keep the medication (marijuana) in it’s proper container. Note: It is also illegal to possess any prescription or controlled substance in anything other than it’s original container.
It is more definitive that you are not allowed to purchase marijuana in another state and bring it to Kentucky. For example, Colorado has a law which allows small amounts of marijuana without a prescription. If you purchase marijuana in Colorado, you are still not allowed to transport it to or possess it in the Commonwealth of Kentucky. IT IS ILLEGAL TO POSSESS MARIJUANA in KENTUCKY, regardless of where purchased.
If you have been charged with any crime in Kentucky you should employ the services of an experienced criminal defense attorney. For consultation in Northern Kentucky, call Bouldin Law Firm and discuss with Michael Bouldin. You may schedule an appointment by calling Emily, Michael’s paralegal. Call 859-581-6453 (581-MIKE) or email at firstname.lastname@example.org.
Kentucky does not have a per se limit for marijuana. Since marijuana is illegal in Kentucky, some prosecutors (and a few judges) believe that you are impaired with ANY marijuana in your system. Other prosecutors (and most judges/juries) believe that the amount is irrelevant without an expert to help translate an amount to impairment. In either case, the prosecution in Kentucky must prove that the driver is “impaired in their ability to operate the motor vehicle” as a result of the drugs and/or alcohol combination.
Some states such as Ohio have a per se limit with marijuana in your blood system which is similar to that of alcohol. For example, if you have over 2 nanograms/milliliter of marijuana in your blood stream, then you can be convicted of operating while impaired (OVI=DUI in Ohio).
The Ohio threshold for drugged driving is illustrated in the following table. Ohio’s DUI Per Se Levels pursuant to ORC§ 4511.19(A)(1)(vii) and § 4511.19(A)(1)(viii)(I)-(II).
|Marijuana||10 ng/ml||2 ng/ml|
|Marijuana metabolite||35 ng/ml||50 ng/ml|
|Marijuana metabolite in combination with alcohol or other drugs||15 ng/ml||5 ng/ml|
It is a valid defense if a person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs, and the person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions. Id. § 4511.19(K)(1)-(2).
My experience shows that any smoking within the last 24 hours will likely put the person over the Ohio limit, regardless of actual impairment. As such, best legal advise would be to refuse a request for blood or urine test if you have ingested marijuana within 24 hours. In Kentucky, the decision is more difficult. If you know you have marijuana in your system, a breath test will not show the substance. A blood test, however, will show marijuana in your system.
The problem is what works best. If you have also been drinking and smoking, best legal advice is generally to refuse a blood test. If you HAVE NOT ADMITTED TO RECENT SMOKING, generally it is advisable to submit to the test. In either case, if you test positive or if you refuse, you should expect that the prosecutor will not amend the charges. You should plan to take your case to trial, whether before a judge or jury.
As such, you should hire an experienced DUI/criminal defense attorney who has trial experience with both judges and juries. There are certain judges you should avoid and others who may be preferable to a jury. For representation in Kenton, Campbell, Boone or Hamilton counties, call Michael Bouldin at 859-581-6453 or email at email@example.com.