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January 2019 saw the arrival of Ohio’s long-delayed medical marijuana program. Passed under House Bill 523 in 2016, the program was slated to be fully operational by September 2018, but regulatory red tape delayed actual sales of medicinal cannabis until the beginning of 2019.
Given the regulatory haze, there’s a lack of clarity about what’s permitted or prohibited under the law, as well as the possible ramifications it may have in the courts.
Here’s a break-down of important things to know about Ohio’s medical marijuana laws, the state’s newly operational medical marijuana program, and the possibility of criminal charges for those who don’t (or aren’t careful to) comply.
Ohio Medical Marijuana Laws
Ohio’s Medical Marijuana Control Program is a sign of the times. Today, pot has shed many misconceptions and much of its “War on Drugs” rhetoric. It’s become a proven revenue generator with perceived and actual risks minimized by a devastating opioid epidemic. And its therapeutic uses are supported by growing research.
Still, Ohio’s law is restrained, and sometimes unclear and unusual, in its cannabis acceptance. There are also many laws and regulations (at times conflicting) when it comes to marijuana in Ohio, neighboring states, and the federal government.
Here are some of the basics of the law:
Qualifying Conditions Only
Medical marijuana is permitted for medicinal use only for patients who are prescribed medical cannabis by a doctor to treat one, or more, of 21 qualifying conditions. These include cancer, PTSD, traumatic brain injury, chronic or severe pain, CTE, Parkinson's, Alzheimer's, HIV / AIDS, amyotrophic lateral sclerosis, Crohn’s disease, epilepsy/seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, sickle cell anemia, spinal cord disease or injury, Tourette’s, and ulcerative colitis...
Prescriptions by Approved Doctors Only
Only doctors approved by the State Board of Ohio are permitted to recommend medical marijuana. By law, they must have a patient-doctor relationship, must review a patient’s prescriptions over the past month, and must discuss the risks and benefits of treating their conditions with cannabis. As of March 2019, nearly 450 physicians were allowed to make these recommendations.
Registration Required
Medical marijuana patients and caregivers must be registered to purchase, possess, and use medicinal cannabis with the State Board of Pharmacy, which keeps personal information private per the law. The board’s online registration system was not opened until December of 2018, roughly 5 months past its expected launch. Registered patients and caregivers are provided registry cards and photo IDs, which they must have to purchase cannabis at a licensed Ohio dispensary. They are valid for one year.
Quantity, Legal Amounts & Possession
Patients and caregivers are permitted by law to possess up to a 90-day supply of medical marijuana. Per state law, a patient who purchases a 30-day supply from their first dispensary trip would be limited to no more than a 60-day supply of medical marijuana until 90 days after the initial purchase.
Legal Cannabis Products and How to Use Them
While state law only permits medicinal cannabis in a form that can be vaporized, rather than ignited or combusted using a flame, or as tinctures, patches, topical ointments, or oils, the first dispensaries opened selling only dried marijuana “flowers”, or buds, which by law must be vaporized. That's right, you can't technically smoke cannabis flower using a flame in Ohio, but it is unlikely how this could be enforced.
Purchasing Medicinal Marijuana in Ohio
Ohio's medical marijuana system has been slow and incomplete in its rollout, and is still in its "start-up phase," according to the program's website. Granted, there are many parts to address; from cultivation and manufacturing, regulation of derivative products (tinctures, balms, etc.), and licensing of businesses and dispensaries to physician registration, consumer sales, and a host of other issues scattered about a regulatory minefield. Still, medical marijuana is being sold in Ohio at this time.
Here’s how the system has been working so far:
Opening the Program
The first medical marijuana dispensaries opened on January 16, 2019. As of that date, there were only four retail stores in the state of Ohio. Many of the patients first in line included activists, veterans with PTSD, individuals recovering from opioid addiction, and others passionate about Ohio’s slow, albeit progressive, progress on the issue of marijuana. Most residents won’t see more convenient or local dispensaries until more open this spring.
The First Month
In the first two and a half weeks of legal sales alone, the state’s medical-marijuana program reportedly sold nearly 70 pounds of medical marijuana for roughly $500,000. In the first month, sales were nearly $1 million.
Cultivation & Manufacturing
Growing / cultivation of medical marijuana at home is not permitted, even for licensed patients and caregivers. The cultivation of medical marijuana is tightly regulated by the Control Program. In addition to extensive registration and ongoing reporting requirements, growers are also subject to periodic inspections, as well as a list of operation rules and a "quality assurance plan." In addition to constant exposure to federal charges for these operations, cultivators may face repercussions from the state for non-compliance or other alleged crimes.
Product Availability
At the time of its opening, medical marijuana made available through the state’s program is available only in “flower” form (which ironically conflicts with the legislation permitting only the vaporization of marijuana, or use via edibles, tinctures, oils, and patches). As licensing issues are processed and the industry expands, there will likely be other cannabis products available at licensed dispensaries, including edibles and topicals. Ohio officials have publicly noted the industry may be "unable to provide a full supply" of cannabis products to all licenses dispensaries until "later in 2019."
Prices
Because there were only a few dozen strains of medical marijuana being grown by 14 cultivators, the supply for medical marijuana in Ohio could be limited, even though more than twice that number of cultivators have been licensed to grow. That’s not the most ideal situation for consumers and especially patients on disability with limited income. However, once more cultivators begin producing, and more medical marijuana becomes available, the current higher prices patients are paying (roughly $50 for 2.83 grams of flower, or upwards of $470 an ounce) will likely come down.
Amount / Packaging
As with other states that have legalized medical marijuana for recreational or medical uses, Ohio has rules about how medical marijuana can be sold. This includes requirements that it be pre-packaged and sold in amounts of 2.83 grams, or one-tenth of an ounce (or an “Ohio tenth”).
The Potential Problem: Marijuana Crimes
As Attorney Ian Friedman discussed with IndeOnline and ideastream, Ohio’s Medical Marijuana Control Program will likely see some hiccups and potential problems – especially in terms of enforcing marijuana laws, drug crimes, and DUI when other states and the federal government have conflicting views.
While that means some may find themselves in the crosshairs of overzealous and/or under-trained law enforcement, it also means legal cases resulting from those arrests (or citations) will fill in the blanks and shape areas of the law left unaddressed by statute.
DUI / OVI
Perhaps the biggest potential problem when it comes to marijuana is the immeasurable gray area of enforcing impaired driving laws (DUI / OVI). That’s due in large part to the drastic differences in how the human body processes marijuana, which can show up on a drug test days or weeks after initial use and well after intoxicating effects wear off, and be affected by the frequency of use. It additionally involves the inability of law enforcement to find objective and verifiable testing methods and procedures, and arguments as to when a person is considered “too high” to drive which so often accompany these charges. Under Ohio law, the state sets the limit for a marijuana DUI at 35 nanograms of marijuana metabolites per ml of urine or 50 nanograms per ml of blood. That’s been criticized as too high a limit, and many advocates have pushed for better ways to gauge impairment. A zero-tolerance approach to driving under the influence, however, could mean an increase in marijuana DUI arrests, though studies have shown marijuana use by drivers is substantially less dangerous to public safety than alcohol or even sleep deprivation. The law regarding marijuana DUIs is likely to “evolve very quickly,” Attorney Friedman notes, and that evolution will come through the courtrooms because it wasn’t done ahead of time.
Neighboring States
Purchasing legal medical marijuana, or recreational marijuana, in a legal state is fine if you meet the qualifying criteria and appropriately register with that state (as needed). However, registered patients who purchase legal pot in Ohio cannot bring it into other states without breaking the law. That includes federal law, and more realistically state law in places like Indiana, which does not permit the possession of marijuana (with the very limited exception of some CBD oils) in any form. Bringing medicinal cannabis into Indiana, even if purchased legally, could result in drug crime charges.
Federal Law
While the federal government has exercised sensible restraint when it comes to prosecuting individuals for some non-violent marijuana offenses, marijuana, whether medicinal or state-legalized for recreational purposes, is still illegal under federal law. While most individuals won’t run afoul of the feds when it comes to small amounts of marijuana possession, federal law enforcement still has the authority to enforce the law. Certain circumstances may increase the likelihood of federal marijuana charges, such as possession and use on federal land (like a National Park), transporting marijuana across state lines, or federal crimes involving unlicensed cultivation, distribution, and trafficking for larger quantities. It may also have implications when it comes to purchasing firearms in similar matters where federal regulations may apply. Of course, businesses involved in the medical marijuana industry may also find themselves subject to non-drug crime charges or investigations that lead to other federal charges, such as tax fraud, conspiracy, or false and misleading statements. Attorney Friedman has delved into additional issues in a previous blog post.
Training and Enforcement
Training law enforcement to effectively enforce the state’s new laws will likely be a challenge. As Attorney Friedman told News 5 Ohio, police are likely going to focus on ensuring patients use medical cannabis as prescribed. Should it be treated like any other medication, the problems would likely be limited. However, zealousness or sheer confusion about the law could mean unreasonable or unwarranted criminal charges.
CBD
CBD is the non-psychoactive compound in marijuana, and its purported benefits range from anxiety alleviation to pain relief. While CBD products can be found on many retailers’ shelves and online, there’s a great deal of misunderstanding about what CBD is and how CBD derived from cannabis and hemp differ in the eyes of the law. You can find more information about Ohio CBD laws, and the federal government’s stance on CBD, on our blog.
Criminal Records / Probation
Individuals with criminal records and those who are currently on probation or subject to court supervision face unique concerns for medical marijuana. Because these are case-specific issues, consulting an experienced attorney is a wise decision, especially if there is Federal jurisdiction (i.e. federal probation). Though criminal records may not bar individuals from registering as patients under the program, criminal convictions can prevent individuals from becoming registered caregivers.
Non-Patient Possession
Although medical marijuana patients may be able to possess and use marijuana, recreational cannabis is still prohibited by Ohio law. However, Ohio has relaxed laws regarding some marijuana offenses– most notably in first-time, non-violent, and small-volume possession matters. Under state law, possession of fewer than 100 grams of marijuana flower (or less than 5g/1g of solid/liquid hash or concentrate) is a minor misdemeanor punishable by a $150 fine. Minor misdemeanors do not create a criminal record in Ohio.
Penalties escalate with larger quantities: 100g-200g is a misdemeanor punishable by $250 and up to 30 days in jail; felony possession begins at 200 grams (200g-1,000g) or 10g/2g of solid/liquid hash or concentrate, and is punishable by up to 1 year of incarceration. Some Ohio cities are passing measures to reduce penalties for marijuana possession or decriminalize small-volume possession entirely. As of July, possession of up to 100 grams (about 3.5 ounces) in Cincinnati won’t result in fines or prosecution of any kind. Columbus has passed an ordinance to drop fines to $10 for possession of fewer than 100 grams of marijuana, and $25 for 100g-200g and Ohio is considering an ordinance of its own.
Avoiding Traps in the Courtroom Due to Marijuana Laws
As regulators, licensing authorities, and law enforcement scramble to expand the state’s already successful program, train in new procedures, and become better acquainted with the law, the risks and “traps” that may lie ahead could make for new ground, and new precedent, in Ohio courtrooms. Criminal defendants and defense attorneys knowledgeable in state and federal laws, the Constitutional rights of suspects and defendants, and the tactics needed to overcome such obstacles, could become critical components to shaping the laws and what they’ll look like in the future.
Charged with a Marijuana Offense in Ohio? Call: (216) 928-7700
Attorney Ian N. Friedman and our legal team at Friedman Nemecek Long & Grant, L.L.C., L.L.C. Attorneys at Law have earned national recognition or their abilities to tackle complex and high-stakes criminal cases. Attorney Ian Friedman has also become the go-to resource for news agencies and others seeking legal insight about the law and criminal implications inherent to Ohio’s medical marijuana program and drug crime statutes.
If you have questions about Ohio’s medical marijuana program, or a state or federal criminal matter, our award-winning attorneys are available to help. Contact us to speak with a lawyer.
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