Monday, February 18News That Matters

How are police adapting to medical marijuana? – Officer


Feb. 11–With sales of medical cannabis underway, law enforcement agencies across Ohio must adapt to a new legal landscape.

It’s a matter of increased training for some and ongoing deliberation for others, such as a sheriff’s office responsible for a county jail and concealed carry permits.

“Because it’s marijuana, I think it’s got a heightened attention from everybody, but it’s no different than any other new law that we deal with,” said Stark County Sheriff George Maier.

“We will take our time, and we will make sure that we research this thoroughly before we start making any arrests or issuing any citations.”

In the first two and a half weeks since sales began, the Ohio Medical Marijuana Control Program reported 68.22 pounds of plant material sold for a total of $502,961.

How can those patients avoid legal woes?

Lt. Robert Sellers, of the Ohio State Highway Patrol in Columbus, said enforcing medical cannabis rules are “fairly simple.”

“If patients and caregivers are following the law they will not be subject to arrest or prosecution,” he wrote in an email.

That involves:

* Having a state patient or caregiver card readily available

* Purchasing product from state-approved dispensaries

* Possessing no more than a 90-day supply

* Keeping products in original containers

* Using approved methods of consumption, which excludes smoking

* Refraining from operating a vehicle, aircraft or watercraft while impaired

However, criminal defense attorney Ian Friedman said it’s not quite that simple.

He expects legal cases to eventually resolve issues unaddressed by the state legislature, such as the standard for determining if a driver’s impaired and whether the state program extends to inmates.

“So, this law is going to evolve very quickly, and it’s going to evolve in the courtrooms, unfortunately, because it wasn’t done ahead of time,” he said.

Friedman, a founding member of the Cleveland-based law firm Friedman & Nemecek, said people should consider how registering for the state program might affect their daily life. Cannabis remains illegal under federal law, and Ohio does not provide protection for employees.

A medical cannabis card could affect a person’s ability to purchase a firearm or conflict with federal regulations in other situations.

“There really are going to be a lot of traps, for lack of a better term,” Friedman said.

What qualifies as impaired driving?

The Ohio Revised Code lists concentration levels of marijuana or marijuana metabolite to determine if a driver is under the influence.

However, unlike a breath test for alcohol, the only roadside test is an officer’s observation. A later urine test often used detects metabolites, which process slowly in the body and can show levels above the legal limit days after cannabis use, Friedman said.

More accurate tests, like blood, typically are done for serious incidents, he added.

“This is where I think it is incumbent upon Ohio’s Attorney General to come up with a uniform policy that all of the law enforcement agencies across Ohio’s 88 counties and also Ohio State Highway Patrol must follow,” Friedman said. “Otherwise you’re just going to have a checkerboard of inconsistent prosecutions.”

David O’Neil, a spokesman for the Attorney General’s office, said a medical cannabis identification course was added to Ohio Peace Officer Training Academy courses in September 2017. About a year later, the Ohio Board of Pharmacy hosted a workshop about the state medical cannabis program.

By early spring, the AG’s office will release frequently asked questions about such traffic stops for law enforcement, O’Neil said. The state Board of Pharmacy and the Bureau of Criminal Identification and Investigation also should release a webcast about the same time.

“But just like alcohol, an officer can charge for observable evidence indicating impairment,” O’Neil said. “And bottom line is, like other prescribed drugs, a person with a medical marijuana card cannot drive impaired by the drug.”

Both the Canton Police Department and Stark County Sheriff’s Office have officers or deputies trained in Advanced Roadside Impaired Driving Enforcement (ARIDE). The optional state course teaches officers to identify the effects of drugs, alcohol or a combination of substances.

Canton police spokesman Lt. Dennis Garren said the department plans to train more officers in ARIDE. Without a standard roadside test, officers take a person’s actions and their observations into account.

“It’s no different, as far as any other prescribed medication,” Garren said. “It’s the patient’s responsibility to understand the effects of their prescribed medication.”

How does this affect gun owners?

It puts them in a bit of a predicament.

The Bureau of Alcohol, Tobacco, Firearms and Explosives has stated that cannabis use, even if legal under state law, remains illegal under federal law and disqualifies a person from “shipping, transporting, receiving or possessing firearms or ammunition.”

Friedman said he doesn’t expect medical cannabis users who already own guns to encounter problems, but purchasing a gun or a federal firearms license is another matter.

The state patient and caregiver registry will not be available to the National Instant Criminal Background Check System, which is used by federally licensed firearm dealers, according to a spokesman for the Board of Pharmacy. Still, the ATF form to purchase or transfer a firearm asks about drug use.

“If you deny it, and you have a card, now you have committed a federal crime by lying on a federal application,” Friedman said.

The Stark County Sheriff’s Office is trying to determine what that means for the issuance of Ohio concealed carry permits.

“We have actually asked our county prosecutor for an opinion on that, and they’re researching it now,” Maier said.

Can inmates use medical cannabis?

Not according to the Stark County sheriff.

Maier said correctional institutions will abide by the federal law, but he expects people to try circumventing security at the Stark County Jail.

“That will be challenged,” he said.

Friedman said he hasn’t encountered the topic in Ohio or any state he’s practiced, likely because it would be unacceptable at “face value.” He also expects it will be challenged — but with a lawsuit.

“That would be an interesting legal argument,” he said.

A search of text in the state law establishing the medical cannabis program shows no results for “inmate,” “incarcerated,” “jail,” or “prison.”

Reach Kelly at 330-580-8323

or kelly.byer@cantonrep.com

On Twitter: @kbyerREP

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