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Ohio’s Medical Marijuana “Affirmative Defense”

It has recently been reported that doctors in Toledo are dispensing medical marijuana cards despite the fact that the rules on prescription marijuana will not go into effect until September 8, 2017, and the fact that the Ohio State Medical Association has advised members to wait until rules are finalized before stepping into this cloudy legal territory.

House Bill 523, which legalized marijuana for medical use only in Ohio last fall, does provide for an “affirmative defense.”  This defense allows a medical marijuana patient charged with possession before Ohio’s program takes effect to make the argument before a judge that they meet the conditions for the program in hopes the charges would be dropped. There is no obligation on the judge’s part to accept the argument.

Although no doctor has yet been certified in Ohio to prescribe cannabis, patients are walking away with so-called “affirmative defense” letters and a list of Michigan dispensaries where they may purchase marijuana to bring back to Ohio, presumably without interference by law enforcement.  It is important to note, however, the affirmative defense only provides a defense for the users of marijuana who possess medical marijuana or medical marijuana paraphernalia, and it only applies if all the provisions of Sections 6(B)(1) and 6(B)(2) (see page 84 here) of the Bill are met.  The affirmative defense protects patients and does not protect doctors who prescribe marijuana illegally.  In addition, medical marijuana must be in a form permissible under Ohio law, which forbids smoking or home-growing of marijuana. It may be used only in oil, edible, patch, tincture, plant matter, or vapor form.

Two court cases are heating up in Wyandot County over Ohio’s affirmative defense after 2 affirmative defense letter holders were found in possession of marijuana during a speeding stop.  Under the State Medical Board’s proposed rules, a physician must complete a sanctioned two-hour course that would be tailored to Ohio to get certification, but it could be as late as Sept. 8 before Ohio’s rules for doctors are finalized.

Ohio’s law does provide for reciprocity in which states with similar programs may recognize each other’s patient registration cards. However, the Ohio Pharmacy Board is waiting to complete its rules before considering any reciprocity agreement.  The first set of rules to take effect under the new law, affect only growing facilities and will go into effect this week. The next set of rules to take effect concerning patients, caregivers, processors, testing facilities, and retail dispensaries must be complete by September 8.  The program’s deadline to be fully operational isn’t until September 8th of 2018.

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