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Beginning this week, Ohio patients suffering from one of the conditions spelled out under the state’s medical marijuana law could assert an “affirmative defense” to a judge if they are charged with possession or use of pot, the Toledo Blade reports. The defense will serve as the only relief for patients charged with possession for roughly two years as the state constructs its tightly regulated program — and it will be up to a judge to accept it.

Republican State Rep. Kirk Schuring, who sponsored the medical marijuana legislation, said the program could be fully operational in less than two years and that lawmakers included the affirmative defense measure in the bill so patients, who would qualify under the Ohio program, would not be punished for possessing cannabis while the infrastructure was being set up.

“We’re building a whole new industry from the bottom up,” Schuring said in the report. “A lot of rules have to be promulgated, which will take a significant amount of time.”

The affirmative defense will likely only be accepted if the person charged has written recommendations from their doctor, and was caught possessing a substance defined as medical marijuana under the Ohio statute; which includes, very broadly, plant matter, oils, edibles, patches tinctures, or vapor.

Barry Wilford, a Columbus-based criminal attorney, says the defense can only be used once an individual is in trouble and won’t help prevent an initial arrest.

“The fact is that someone could be abiding by the law in what they are doing, is stopped, is arrested, and would then have to prove to a judge or a jury by the preponderance of the evidence that they did all these things and didn’t violate the law,” he said.

In Ohio, possessing small amounts of marijuana is a minor misdemeanor that cannot be considered in a criminal background check for employment purposes.  

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