Utah Medical Cannabis: Make It Work, Bulletin 1 (“Affirmative Defense”)
After a hard-fought political battle, medical cannabis is legal in Utah. One thing is clear now: Utah patients are not criminals! Hooray! That is an important step.
Many other things, though, are still confusing. Patients remain at risk of not actually being able to access cannabis or accidentally running afoul of the complex new law. To avoid that, Utah now needs to have open, transparent conversations. To that end, I will describe how patients currently may use cannabis in Utah, even though dispensaries and cannabis cards are not yet in place. I write this to (1) inform and (2) generate dialogue. So, if you disagree with what I write, please rip into this and teach me.
A few preliminary points:
Any possession, use, or transportation across state lines still is illegal according to federal law. The reality, though, is that federal agents have little interest going after patients who comply with state laws. Still, be aware.
Everything else I mention from here forward concerns Utah law (The Utah Medical Cannabis Act).
To possess cannabis now, the law requires that (1) a healthcare provider (2) must state that the patient has a “qualifying medical condition” and (3) recommend cannabis (4) in “dosage form.” I’ll explain below what all this means.
The interpretation that law enforcement will apply to the conditions stated above in paragraph 3 will vary significantly from place to place. Again, be aware.
You can still get busted for paraphernalia.
“Impairment” when driving is still impairment. Don’t drive stupid.
At this time, ALL Utah cannabis will be acquired illegally or transported across state lines illegally. There is no source for “legal” cannabis in Utah.
DOCTOR’S NOTE
To possess cannabis, the law requires that (1) a Utah healthcare provider (2) must state that the patient has a “qualifying medical condition” and (3) the healthcare provider must recommend cannabis (4) in “dosage form.”
One, the Utah healthcare provider can be a medical doctor, an osteopathic doctor, a physician assistant, or an advanced nurse practitioner. Each provider can only recommend cannabis to a small number of patients. (HB 3001, lines 2238-2256). Few providers are currently recommending cannabis.
Two, the “qualifying medical conditions” are listed on lines 2012-2064 of HB 3001.
Three, because no cannabis cards currently exist, patients possessing cannabis should carry a provider’s note. In my opinion (see below: I’m not your lawyer, nor will I be the law enforcement officer pulling you over), the note can be as simple as, “I have an established medical relationship with Jane Q Citizen. Jane Q has a qualifying medical condition listed in the Utah Medical Cannabis Act. The State of Utah/DOPL have no guidelines for recommending cannabis, but I do not object to Jane Q seeking relief.” Ideally, it would say “I recommend cannabis,” but that will be tough for patients to get right now, until providers get more certainty and training (which I believe they will). See HB 3001, lines 2268-2273.
Four, “dosage form” means the form, packaging, concentration, shape and amount of medical cannabis a patient can legally possess. Read it on lines 1824-1852 of HB 3001. Now, I want to specifically mention cannabis flower. (And, remember, you can’t legally combust it).
FLOWER
Unfortunately, a patient’s legal fate for possessing flower likely will depend on which law enforcement agency stops the patient. If a patient with less than 4 ounces gets stopped by a Salt Lake City police officer, the patient should be in the clear when he/she says, “Officer, thank you for your service and concern. I am a patient with a qualifying condition.” Pursuant to SLCPD policy, the response should be to the effect of, “Thank you for clarifying that point, Good Citizen. Have a nice day!” Truly.
But—or, to keep patients out of trouble, I should say BUT—that won’t be the case in most other jurisdictions. (And, remember, you don’t know who might pull you over, even within the city limits of SLC). Because a strict interpretation of the law’s “dosage form” for flower currently is practically impossible to meet, a patient simply will have legal problems when pressed by most law enforcement agencies. Utah Highway Patrol and several Utah counties have determined that they will require cannabis flower to be in bar-coded blister packs of less than 1 gram each.
No one sells cannabis flower that way now. And, it would be tremendous hassle for a patient to get fillable blister packs from Amazon and a bar-coding machine and, then, fill and seal and barcode 112 metered blister packs (28.35 grams in 1 ounce). If anyone does this, message me; I want to meet you.
So, if patients are concerned about staying legally safe, they might want to try vaping or edibles instead of cannabis flower.
I hope this discussion is helpful. Patients, caregivers, medical providers, law enforcement, lawmakers, and all of us will need many more discussions, to wrap our brains around this and figure out how to get patients the medicine they need while keeping them legally safe. Patients are not criminals.
DISCLAIMER: I am not your lawyer. I am not giving you legal advice. I am giving my opinion on something.
The Utah Bee and Truce will be hosting a variety of conversations both online and IRL with stakeholders across the state regarding Medical Cannabis and enforcement of HB3001. See the first of those conversations here. Like the Utah Bee on Facebook, follow on Twitter and sign up for the newsletter to be informed of any upcoming meetings and new information.