Tag: medical marijuana

Can I use medical marijuana while on probation in Oklahoma?

Posted by Frank Urbanic on

I believe it’s now legal for an Oklahoma medical marijuana license holder to consume marijuana while on probation. Some judges and district attorneys will disagree. The “Unity Bill” (Oklahoma Medical Marijuana and Patient Protection Act), which went into effect on August 30, 2019 protects medical marijuana patients from punishment for their use of marijuana. It states the following:

“A medical marijuana patient or caregiver in actual possession of a medical marijuana license shall not be subject to arrest, prosecution or penalty in any manner or denied any right, privilege or public assistance, under state law or municipal or county ordinance or resolution including without limitation a civil penalty or disciplinary action by a business, occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.”

63 O.S. § 427.8

It seems pretty clear to me that an Oklahoma medical marijuana license holder can’t be subject to “arrest, prosecution or penalty in any manner” so long as they are using marijuana in accordance with Oklahoma’s medical marijuana laws. Revoking or accelerating someone’s probation certainly constitutes a penalty. Therefore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for testing positive for marijuana. Furthermore, an Oklahoma medical marijuana license holder who is on probation should not be penalized for possessing marijuana in an amount allowed by our medical marijuana law.

Why won’t judges and district attorneys leave medical marijuana patients alone?

medical marijuana use on probation in oklahomaThe problem is getting a judge and/or prosecutor to agree to that. District attorneys and judges generally still hate marijuana. Many were quite upset that Oklahoma’s medical marijuana law passed. Since the law went into effect, some DAs and judges have done everything they can to “stick it” to patients lawfully using medical marijuana.

The primary reasons judges and district attorneys use for revoking probation for a licensee testing positive for marijuana is that the licensee was “violating federal law” by possessing marijuana. A condition of probation is that the probationer will not violate any municipal, state, or federal laws. Even without the Unity Bill, this reasoning is a stretch. It’s intended to intimidate and unnecessarily punish marijuana patients. With the Unity Bill in effect, it’s clear that a judge may not punish a medical marijuana probationer for testing positive for marijuana because the state law overrides the probation condition. There’s no state law that says that probationers may not violate any municipal, state, or federal law. A judge can’t simply override a state law because they don’t like marijuana.

Examples of how medical marijuana licensee rights are violated

I’ve seen and heard about judges doing some questionable things with regards to probationers vis a vis medical marijuana. Some judges are requiring that a doctor appear in court to testify about the medical conditions the probationer has. The law doesn’t say the licensee “shall not be subject to arrest, prosecution or penalty in any manner … only when their doctor proves the licensee’s medical condition to the satisfaction of the judge.” Plus, information regarding a patient’s condition(s) isn’t even supposed to be released outside the OMMA. So, how does testimony on the record protect a patient’s privacy? There’s at least one judge telling people on probation that even getting a medical marijuana license is violating some law. I’m not aware of any federal law that prohibits people from getting a medical marijuana license–regardless of whether they actually use marijuana. If you’re aware of one, please let me know!

How will we know for sure?

So, how are we going to know for sure whether a medical marijuana license holder on probation can be punished for his or her lawful use of marijuana? I doubt all the district attorneys and judges will suddenly start turning a blind eye to positive marijuana tests by license holders. What it will likely take is for someone to challenge the revocation or acceleration of probation. A medical marijuana licensee must have their probation actually revoked or accelerated by a judge and then appeal that decision to the Court of Criminal Appeals. Then, the licensee would have to actually win at the Court of Criminal Appeals. In the meantime, the licensee would likely be in jail or prison. And appealing anything costs money. Not many people are willing to go through that pain to blaze the trail for everyone else.

The good news is that I haven’t seen a license holders’ probation get accelerated/revoked for testing positive for marijuana. That’s not to say it hasn’t happened–I just haven’t personally seen it. I’ve heard stories about probation officers not caring whether a licensee tests positive for marijuana. That’s a good sign because if the probation officer never reports that as a violation, then the district attorney and judge never get an opportunity to revoke/accelerate the probation. There are also some district attorneys who were not filing motions to revoke/accelerate before the Unity Bill went into effect. No doubt, there will likely be at least a few more now. And out of the hundreds of judges in Oklahoma, there are probably a few who will actually follow the law and leave medical marijuana patients alone.

Current as of October 27, 2019. Note: laws are subject to change at any time! Visit the sources for the most up to date law.

Sources: HB 2612, 63 O.S. 420, & 63 O.S. § 427.8

Charged with possession of marijuana in Oklahoma? Call Oklahoma marijuana lawyer Frank Urbanic in OKC at 405-633-3420.

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Medical Marijuana – 2018 Oklahoma Laws #3

Posted by Frank Urbanic on

smoking medical marijuana in oklahoma

On June 26, 2018, over 56% of Oklahoma voters for the least-restrictive medical marijuana law in the country. The law went into effect on July 26, 2018, and as early as November 2018, marijuana bud was for sale at dispensaries. It’s considered the least restrictive because there are no qualifying medical conditions. The conditions marijuana can be prescribed for are completely left up to the prescribing doctor. The law made significant changes to the punishment for marijuana possession.

Now, a person in possession of a state issued medical marijuana license may legally:

  1. Consume marijuana;
  2. Possess up to three ounces of marijuana on their person;
  3. Possess six mature marijuana plants;
  4. Possess six seedling plants;
  5. Possess one ounce of concentrated marijuana;
  6. Possess 72 ounces of edible marijuana; and
  7. Possess up to eight ounces of marijuana in their residence.

Furthermore, possession of up to 1.5 ounces of marijuana by anyone who can state a medical condition, but not in possession of a state issued medical marijuana license, constitutes a misdemeanor with a maximum fine of $400. Succinctly, if you don’t have a marijuana card and are caught by law enforcement with up to 1.5 ounces of weed and you can state a medical condition, then the worst punishment you can receive is a $400 fine–no jail time. Note the language “can state a medical condition.” It doesn’t say you must actually have that medical condition. So, theoretically, you can just say some random medical condition and you should be ok. I will be interesting to see how this plays out. Also, it does not say whom you must say the medical condition to. The police officer? The court? If you don’t immediately state one, then can you later go in front of a judge and say one? This is uncharted territory, so we simply don’t know how this language will ultimately be interpreted.

It will be interesting to see how this new “marijuana possession law for non-card holders” shakes out in relation to the statute that was changed by SQ 780 on July 1, 2017. That law says that (simple) possession of any controlled dangerous substance in Oklahoma can result in up to one year in jail and up to a $1,000 fine. It’s the expectation that someone who does not have a marijuana card and is not in possession of more than 1.5 ounces of weed will be charged under this new law. Some municipalities have already changed their marijuana possession punishment to become aligned with this new change in state law. It’s likely that more changes, such as changing the penalties for paraphernalia, will also soon follow.

This was a watershed moment for the country. We proved that the people want easily available medical marijuana–in one of the most conservative states in the country. If this law could be passed by Oklahoma voters, it could be passed anywhere. Just as the sky did not fall as the opponents of 780 (making simple possession of all drugs a misdemeanor) had predicted, the sky will not fall as opponents of this ballot measure predicted. I believe that after a few years of marijuana no longer being such a “big deal’ here, Oklahomans will easily legalize recreational marijuana.

Sources: SQ 788, 63 O.S. § 420A, 63 O.S. § 2-402, Village formally reduces marijuana possession penalties in updated city code, OKC City Council Passes City Ordinance Concerning Marijuana, & Oklahoma Town Decriminalizes Marijuana With Ordinance Changes

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Can I Have A Gun If I Have A Medical Marijuana License In Oklahoma?

Posted by Frank Urbanic on

oklahoma medical marijuana

On June 26, 2018, voters in Oklahoma overwhelmingly approved medical marijuana by approving SQ 788. The legality of having a gun while possessing a medical marijuana license became a hot topic immediately after the vote. According to federal law, it’s illegal to possess a gun if you are a medical marijuana license holder regardless of state law.

The federal law that controls this issue is 18 U.S.C. § 922. Subsection (g) states that it’s unlawful for “any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Succinctly, anyone who illegally uses any drug defined as a controlled substance by the federal government cannot possess a gun. Marijuana is a Schedule I substance on the federal schedule, so the federal government considers every user of marijuana an illegal use of a controlled substance. Possessing a state license for medical marijuana doesn’t make somebody a legal marijuana user in the eyes of the federal government. Note that you don’t have to be an addict for this statute to apply—merely a user.

Possessing a gun or ammunition as a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years. Furthermore, it’s illegal “for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Succinctly, it’s illegal to sell or transfer a gun to someone you reasonably believe is an illegal drug user. What could give someone the reasonable belief that you’re an illegal drug user? A medical marijuana license! The Bureau of Alcohol, Tobacco, Firearms and Explosives stated in a 2011 letter that if a transferor knows that a potential transferee of a firearm possesses a card authorizing the possession and use of marijuana under state law, then the transferor has “reasonable cause to believe” that the person trying to get the firearm is an unlawful user of a controlled substance. The ATF further stated that “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”

Knowingly transferring a firearm or ammunition to a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years.

If you buy a gun, you have to fill out ATF Form 4473, Firearms Transaction Record. Question 11e asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” And right after that question, it has in bold print “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” A gun seller may not legally sell a gun to anyone who checks “yes” to that question.

The bottom line is that you lose your gun rights if you use marijuana—whether it’s illegally or under a state-sanctioned medical marijuana program. Nobody may legally sell a gun or ammunition to someone they reasonably believe uses marijuana. Therefore, individuals seeking a medical marijuana license will have to weigh the risks and benefits of that course of action.

As more states legalize marijuana for both recreational and medicinal use, something clearly needs to give here. Oklahoma’s approval of medical marijuana has been called a tipping point in the legalization of marijuana, and more states will follow. For now, however, it’s a federal crime to own a gun and use marijuana, and it’s a federal crime to transfer a gun to a marijuana user. The federal government must remove the threat of violating a federal law from otherwise law-abiding citizens and remove marijuana from the list of controlled substances.

SOURCES: 18 U.S.C. § 922, ATF Form 4473, 18 U.S.C. § 924, & ATF 2011 Letter

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