Medicinal or Criminal: Defending marijuana use in Ohio under the new law
Local 12’s Investigative reporter Duane Pohlman continues his exclusive investigation of a case that will likely test whether using medical marijuana, which was legalized in Ohio in 2016, is still a crime.
Just after House Bill 523 passed September 2016 making medical marijuana legal in Ohio, State Senator Dave Burke, a Republican pharmacist from Marysville, stated a strong belief that marijuana patients would be covered by affirmative defense, a legal term which allows people to adhere to a new law, without facing the penalties of the old law
In October of 2016, Senator Burke stated, “willing physicians are free and clear to recommend cannabis.”
That same month, Dr. Ryan Lakin, a Toledo physician, said he began to hand out medical marijuana cards to patients, based on guidance from Senator Burke and other state lawmakers.
“We started doing that in October of 2016 after we received clarification from the medical board that the affirmative defense provision of House Bill 523 went into effect, immediately,” Dr. Lakin said.
Dr Lakin issued four cards to Cincinnati residents, Deron Elliot, Ian Overton, Stephanie Kidwell and Amanda Meyer.
They say they believed their medical marijuana cards protected them.
Instead, all four are now facing multiple felony drug charges in connection to more than ten pounds of marijuana-based products that troopers found in their car during a speeding stop on February 24th.
“If you fit within the framework, you can apply affirmative defense,” Burke stated in a hallway of the Ohio Statehouse, when asked about the case and the apparent confusion created by his statements.
“I’m not the judicial branch,” Burke said, adding, “You have to look at what the law says and apply affirmative defense to the bill the way it's written.”
Far from “free and clear,” an affirmative defense claim can only be decided by a court, which is where the validity of felony drug counts against four people from Cincinnati will be weighed.
“The court would have to decide whether or not you fit in those parameters,” added Senator Burke.