ERIK J. WINELAND
Of Counsel for RCMTZ
Ohio's medical marijuana law: Dazed and confusing
Blade Columbus Bureau Chief
JAN 3, 2019
Shortly after crossing into Ohio in February on the way from Ann Arbor to Cincinnati, a car was clocked by the Ohio State Highway Patrol traveling 87 mph in a 65 mph zone.
The sedan’s four occupants soon found themselves mired in the haze of Ohio’s affirmative defense — a vague wink-and-nod legal defense inserted into the state’s medical marijuana law that has proven to be salvation for some but a nightmare for others.
Deron Elliot, 34, of Cincinnati; Christopher Ian Overton, 32, of Addyston; Stephanie Kidwell, 37, of Addyston, and Amanda Meyer, 33, of Cincinnati, have a hearing on Jan. 18 in Lucas County Common Pleas Court with hopes of having evidence seized in the felony drug case dropped.
A search of their vehicle after they were stopped Feb. 24 found marijuana and hashish products with a value that the highway patrol set at the time at $30,000. The four were charged with trafficking and possession because of the large quantity involved. The second- and third-degree felonies, respectively, could mean as much as 28 years in prison for the vehicle’s passengers.
Whether they serve prison time could come down to action taken by lawmakers shortly before they passed Ohio’s medical marijuana law in 2016. Legislators at the time inserted into the law the so-called affirmative defense provision.
The idea behind it is seemingly simple: While Ohio slowly puts together its own medical marijuana industry, patients in desperate need of medicinal pot can argue before a judge if arrested that they legally qualify to possess medical marijuana, even if they obtained that marijuana outside Ohio.
Defense attorneys have argued that the four arrested in the February traffic stop in Lucas County held recommendations to use medical marijuana from a Toledo-area doctor. They’ve also argued the products seized — 10 pounds of marijuana edibles, 73 grams of hashish oil, and 70 grams of solid hashish — are consistent with 90-day supplies for four people who held written medical marijuana recommendations, and also meet Ohio’s restrictions on the sort of medical marijuana products allowed here.
The case could serve as a test of how the affirmative defense provision of Ohio’s medical marijuana law works in practice.
Complicating matters in this case is the fact that the driver, Meyer, was driving with a suspended license and had an outstanding felony warrant for allegedly conveying illegal drugs.
Elliot, whose attorney is focusing more closely on the affirmative defense issues than the attorneys of the other defendants in the case — also has a criminal record in Hamilton County, including trafficking in marijuana.
Still, Elliot’s attorney, Erik Wineland, in motions to dismiss the case or suppress the marijuana evidence, argued the product seized “was medical marijuana purchased from Liv Wellness & Café in Ann Arbor, Michigan.
“This store is a licensed retail marijuana dispensary. The medical marijuana purchased from this medical dispensary was consistent with the forms permissible … and the quantity consistent [with Ohio’s law].”
A medical marijuana patient in Ohio must have a written recommendation from an in-state certified physician attesting that he or she suffers from one of 21 ailments or conditions enumerated in law. The marijuana in their possession must be in forms allowed under the law, and a patient or caregiver may possess up to a 90-day supply of the medications at any given time.
Each of the occupants of the sedan that day had been given recommendations for marijuana use by Dr. Ryan O. Lakin, Toledo president and CEO of WellCare Medical Services, LLC and medical director of OMNI Medical Services and Staffing.
At the time, the Ohio State Medical Board had yet to certify any physician to officially make recommendations. OMNI was out of the gate soon after Ohio enacted its law in 2016. Because marijuana remains illegal under federal law, doctors cannot write prescriptions for it. Instead, physicians give patients written recommendations.
The medical board began certifying physicians last spring, and Dr. Lakin was among the first.
In response to Elliot’s motion to dismiss, Assistant Prosecuting Attorney Joseph H. Gerber has argued that the affirmative defense must be raised at trial, not at the pretrial stage.
“Importantly, however, this defense does not even apply to Mr. Elliot,” Mr. Gerber wrote. “He admits that he is neither a ‘registered patient,’ nor did he purchase the marijuana from a ‘licensed dispensary.’ Instead, Mr. Elliot relies on his doctor’s interpretation of the law, which is also incorrect, and irrelevant.”
The Ohio Board of Pharmacy did not activate its medical marijuana patient registry until Dec. 3, nearly 10 months after the traffic stop. The affirmative defense was always intended to be temporary until Ohio had implemented its own medical marijuana program that includes rules for growing, processing, and selling the product.
Since the affirmative defense will legally expire 60 days after the pharmacy board issued its first registration for a patient or caregiver, the pharmacy board initially held off opening the registry. It is now convinced product will be available for purchase in Ohio by early February, when the affirmative defense will end.
Ohio’s law makes no mention of where patients would be expected to find medical marijuana in forms allowed in Ohio. During debate, lawmakers openly talked about Michigan, where medical marijuana was already legal.
Since then, Michigan residents in November voted to legalize recreational marijuana. Legalization went into effect there Dec. 6, though state officials continue to work on establishing a framework for the sale of marijuana. That process is expected to take about two years — meaning there is currently nowhere recreational pot can be legally purchased in Michigan.
Rep. Kirk Schuring (R., Canton), who helped write Ohio’s medical marijuana law, said the affirmative defense provision was put into place to help state residents “who desperately need medical marijuana.” He also said affirmative defenses, by their very nature, are not clear-cut. Ultimately, it is up to a judge whether to accept it.
“Even though [the arresting patrolman’s] job required him to be knowledgeable of Ohio law, he admitted that the Ohio State Highway Patrol had not provided him any training regarding the 2016 Medical Marijuana Law or the applicable affirmative defense,” Mr. Wineland wrote in a brief filed Dec. 17.
“Importantly, he admitted that he did not know the legal definition of medical marijuana at the time of the traffic stop,” he wrote.
In an affidavit dated Sept. 4 that accompanied the defendants’ motions to dismiss, Dr. Lakin confirmed all four of the vehicle’s occupants that day were bona fide patients and that he had issued or renewed recommendations for them in Toledo on the day they were arrested.
“It was the intent of the Legislature to permit patients to travel to states which have legalized medical marijuana in order to obtain the medication,” Dr. Lakin wrote in his affidavit. “There is no need for the affirmative defense if patients cannot obtain medical marijuana.”
He indicated that the marijuana products seized by the highway patrol appear to be in forms allowed under Ohio law and in amounts consistent with 90-day supplies for four people.
Mr. Gerber sees it differently.
“They were eager to buy marijuana and hashish,” Mr. Gerber, the assistant prosecutor, wrote in September to oppose the motions to dismiss. “So they pooled their money together and set out to buy some. Now, licensed medical marijuana dispensaries do not yet exist in Ohio. And, defendants were not registered patients. But defendants were undeterred.
“They found both a helpful doctor and seller near the Ohio-Michigan border,” Mr. Gerber wrote. “In Toledo, Dr. [Lakin] recommended defendants medical marijuana. Defendants then drove to Ann Arbor, Michigan, where they bought a trove of marijuana and hashish.”
Chris Lindsey, senior legislative counsel with the Washington-based Marijuana Policy Project, said the ambiguousness of Ohio’s law might offer patients a defense.
“If I were on the defense team, and I’m not, I would be looking into whether these provisions are unconstitutionally vague,” Mr. Lindsey said. “I believe a couple of lawmakers came out and said, ‘Go to Michigan.’ You might be able to make the claim that the lawmakers who passed this said, ‘That’s what you do here.’
“Who are we to say they’re wrong? People are entitled to know exactly where they stand in relation to the law.”