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What's Legal in OH Medical Marijuana Law 2018?

Wondering how the Ohio medical marijuana law will affect you in 2018?  Jim Dearie of Dearie, Fischer & Mathews explains what's legal and what's illegal in the new law.

Marijuana in Ohio: What is Legal and What Isn't?

There has been a ton of talk on social media and all across the state about the legalization of medical marijuana in Ohio. Marijuana legalization arouses mixed feelings among the population and much controversy over how a marijuana program should be implemented in our state. With all of the hype on the subject, however, I find that the law is getting lost, and most people do not really understand what the law is and how it affects them.

As a lawyer, I deal with many complex legal issues. Marijuana law is becoming an area that has a lot of people confused. Many people are surprised when they are slapped with a marijuana charge, because they either did not know that what they were doing was illegal, or they were led to believe that the law was no longer being enforced. I have many clients who could tell you that the marijuana laws continue to be enforced, and that is how they wound up in my office. In this post I've summarized important points that everyone needs to know about the new marijuana law.

Ohio Marijuana Law before September 8, 2018.

Roll-out of Ohio Medical Marijuana is on target for September 8, 2018.

All use, possession, cultivation, or sale of marijuana is illegal prior to that date.

Medical marijuana laws are not yet in full swing. The state's target date for fully operational marijuana production and dispensing is September 8, 2018, but there are many factors that may interfere with a dispensary opening in your area by that date. Locations of the marijuana dispensaries have just been announced today, June 4. For those businesses, that is just the first step toward becoming operational. [1]

Ohio Marijuana Law after September 8, 2018.

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Medical Marijuana is the only approved form of legal marijuana.

And there are a lot of restrictions on the cultivating, testing, selling, prescribing, and ingesting of the drug. Marijuana use by prospective patients is being overseen and regulated by the Ohio State Board of Pharmacy. The board will determine which doctors can recommend patients for marijuana, which conditions can be treated with marijuana, and will determine if individuals are eligible to obtain the medical marijuana card that will give them the legal permission to possess and use the drug.

Marijuana Patients are required to obtain a Medical Marijuana Card

Prior to using the drug to treat one of 21 conditions that are approved for treatment with marijuana, patients must establish a relationship with a physician who is certified by the Ohio Board of Pharmacy to recommend marijuana as treatment for patients. For qualifying patients, the physician can recommend the patient and submit a patient registration. The patient can then apply online for a medical marijuana card, and pay the associated fee. Possession of the card will allow patients to obtain and possess marijuana legally.

Not all doctors will be able to recommend marijuana for their patients.

Many people are under the impression that their local family doctor will automatically have the ability to prescribe marijuana as they would any other medication. However, doctors who want to recommend patients for marijuana treatment are required to take a two-hour training course and apply for certification from the Ohio Medical Board. As of April, 2018, there are only five doctors in the Cincinnati area who are approved to recommend patients for marijuana treatments [2].

Medical Marijuana is approved for legal treatment of a limited number of conditions.

The following medical conditions qualify for physician recommendation of treatment with medical marijuana: AIDS, amyotrophic lateral sclerosis, Alzheimer's disease, cancer, chronic traumatic encephalopathy, Crohn's disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson's disease, positive status for HIV, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette's syndrome, traumatic brain injury, and ulcerative colitis.

Medical Marijuana can only be dispensed in a limited number of forms.

Marijuana is usually thought of as a drug that is smoked. However, smoking marijuana will remain illegal even after the medical marijuana laws go into effect. Certified physicians will be able to prescribe marijuana to patients in the following forms: oil, tincture, capsule, or other edible forms that can be taken orally; patches for the administration of creams and ointments; metered oil or plant material that can be administered through a vaporizing device. However, no vaping device that allows for direct contact of the medical marijuana with its heating element, can be used for the vaporization of plant resin or its extracts. [3]

Remember that smoking marijuana is always and everywhere illegal in the state of Ohio, and will continue to be illegal even when the medical marijuana laws come into full force.

Recreational Marijuana Use Remains Illegal

Recreational, unregulated use of marijuana is, for the time being, still illegal. Home-growing marijuana for medicinal or any other purpose remains illegal and will remain illegal even for those who have been approved for medicinal use. Many people are agitating for the legalization of recreational marijuana, and you may have read in the news that lawmakers are signaling that legislation may be heading in that direction. But until those laws are passed - and it could be quite some time before they are - Ohio residents should steer clear of smoking marijuana, using any other forms for recreational purposes, or cultivating marijuana in their residences or on private property.

DUI/OVI: Marijuana Drug Laws Still Apply for Drivers

You still cannot drive if your system contains an excess of the legal limit for the drug.  Additionally, you can not drive while impaired by marijuana regardless of how much of the drug is in your system. (For further explanation of the marijuana DUI law, see my blog article, Driving Stoned: Marijuana DUI-OVI in Ohio.) If at any time you are stopped, and the police officer smells marijuana or finds marijuana in your vehicle, there is a good chance you will be charged with DUI and asked to submit a blood or urine sample for drug testing. Having a medical marijuana card does not provide a defense against a DUI/OVI charge. Medical Marijuana users cannot operate a motor vehicle while impaired or over the legal limit for marijuana. [4]

Medical Marijuana Law Complication: Marijuana in All Forms is Still Illegal Under Federal Law

Although medical marijuana was legalized in Ohio in 2016 and its roll-out is expected in September of 2018, marijuana use, production, and sale is still illegal under Federal law. Under the U.S. Controlled Substance Act, marijuana remains a Schedule 1 controlled substance and has not received FDA approval for medicinal use. The discrepancy between state and federal law is causing some confusion for people, and creates complications for businesses and healthcare providers.

Employers Can Still Take Adverse Actions Against Employees Using Medical Marijuana

The Ohio Code is clear that the medical marijuana law will not effect how employers choose to establish drug use and testing policies for their employees. Some employers are required by Federal law to retain a drug-free zone at their workplaces. All employers, state, federal, and private, will retain the right to test their employees for marijuana use, and to retain policies that fire, discipline, or refuse to hire individuals who have been using marijuana and fail employer drug tests. [5]

Banks that are part of the Federal Reserve will not handle monies procured from the sale of pot. Ohio businesses are seeking a work-around to this challenge, because without it, marijuana businesses will have to operate on a cash-only basis. [6]

Medicaid and Medicare and some private insurance companies will not cover the costs of medical marijuana. The poor and elderly who receive care under these public health programs, will not have marijuana costs covered, even if marijuana use is approved by a marijuana-certified doctor. Some private health insurance companies will also refuse to cover costs marijuana drugs. Patients should inquire with their insurance companies about coverage before beginning a marijuana regimen. [7]

Doctors cannot technically "prescribe" marijuana as medicine. You may have noticed that the medical marijuana law does not use the word "prescription" to describe a doctor's authorization for a patient to receive marijuana treatment. Rather, the doctors makes a "recommendation" for their patients to obtain marijuana. Since prescribing marijuana is illegal under Federal law, some healthcare systems (e.g. UC Health, and Mercy Health, and Cincinnati Children's Hospital) will not be participating in the medical marijuana program, citing concerns over the discrepancies in the law. [8]

Under Federal law, marijuana users cannot obtain or possess firearms. Under the Federal prohibition, marijuana users are not allowed to buy, sell, or possess firearms or ammunition or obtain a CCW certification. A federal circuit court of appeals in Nevada has ruled that restrictions on firearm sales for individuals using medical marijuana does not violate the Second Amendment. In Ohio, however, the National Instant Background Check System will not have access to the Ohio registry of medical marijuana patients. Medcial marijuana users are expected to observe the law on their honor. [9], [10], [11].

REFERENCES

1. WLWT Digital. "Ohio to Announce Sites for Medical Marijuana Dispensaries Today." WLWT, WLWT, 4 June 2018, www.wlwt.com/article/ohio-to-announce-sites-for-medical-marijuana-dispensaries-today/21066831.

2. Tucker, Randy. "Medical Marijuana: These Are the Ohio Doctors Who Can Recommend Medical Weed for Their Patients." Cincinnati.com, Cincinnati Enquirer, 13 Apr. 2018, www.cincinnati.com/story/money/2018/04/11/medical-marijuana-these-five-cincinnati-area-doctors-can-recommend-medical-weed-their-patients/506752002/.

3. "Lawriter - OAC - 3796:8-2-01 Authorized Medical Marijuana Forms and Methods of Administration." Lawriter - ORC - 3313.60 Prescribed Curriculum., codes.ohio.gov/oac/3796:8-2-01.

4. "Lawriter - ORC - 4511.19 Operating Vehicle under the Influence of Alcohol or Drugs - OVI."Lawriter - ORC - 3313.60 Prescribed Curriculum., codes.ohio.gov/orc/4511.19.

5. "Lawriter - ORC - 3796.28 Rights of Employer." Lawriter - ORC - 3313.60 Prescribed Curriculum., codes.ohio.gov/orc/3796.28v1.

6. "Banks Hedging at Working in Marijuana Space." Crain's Cleveland Business, 12 Apr. 2018, www.crainscleveland.com/article/20180324/news/155871/banks-hedging-working-marijuana-space.

7. "Does Medicare Cover Medical Marijuana? ." Medicare Information, Help, and Plan Enrollment - Medicare.com, 31 Aug. 2017, medicare.com/coverage/medical-marijuana-medicare-coverage/.

8. Bernard-Kuhn, Lisa, and Kristyn Hartman. "Medical Marijuana in Ohio: Where Do Local Doctors Stand?" WCPO, 18 Feb. 2018, www.wcpo.com/news/insider/medical-marijuana-in-ohio-where-do-local-doctors-stand?page=2.

9. Sweigart, Josh. "No Guns: Ohio's Medical Marijuana Users Won't Be Able to Have Firearms."Mydaytondailynews, Staff Writer, 5 Dec. 2017, www.mydaytondailynews.com/news/crime--law/guns-ohio-medical-marijuana-users-won-able-have-firearms/th1VxfawP7LNhFikF34ZTO/.

10. Sweigart, Josh. "How Will Ohio Know Gun Owners Don't Use Medical Pot? The Honor System." Daytondailynews, Contributing Writer, 5 Feb. 2018, www.daytondailynews.com/news/state--regional-govt--politics/how-will-ohio-know-gun-owners-don-use-medical-pot-the-honor-system/l3cJ2kYisnc0xKc2ZjMNZM/.

11. Ohio Board of Pharmacy. "Will My Registration Status Be Made Publicly Available?" Ohio Medical Marijuana Control Program, medicalmarijuana.ohio.gov/patients-caregivers.

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