Affirmative defense is a mind bending concept surrounding the state of Ohio’s legal medical marijuana rules that have not been implemented yet. Doctors in Ohio prescribing medical marijuana refer their patients to dispensaries in Michigan which is permissible but may also be breaking the law.
COLUMBUS — Louis Johnson, managing director of OMNI Medical Services, showed up Monday at a hearing about proposed rules governing physicians under Ohio’s newly legal-medical marijuana program in hope the murky waters of “affirmative defense” might be cleared a bit.
But he never heard the words mentioned in testimony before the hearing officer, and the words won’t be found in the rules written by the Ohio Medical Board.
“It’s confusing a lot of municipalities and a lot of courtrooms…” Mr. Johnson said afterward. “They’re applying the wait-for-the-state-is-ready rules to affirmative defense, and that’s not how [the law] is written.”
OMNI physicians, including some in Toledo, have been writing recommendations for patients to acquire medical cannabis, often from Michigan, well before final rules have been put in place that would lead to their certification to do so.
The hearing officer will take the handful of public comments heard Monday back to the legislative Joint Committee on Agency Rule Review, which will serve at a later date as the rules’ last set of eyes before they take effect.
Certified physicians would ultimately be on the front lines of Ohio’s program, which could still be more than a year away from being fully implemented.
In the meantime, doctors have been caught in a sort of legal limbo. They are allowed under the law to write letters now before Ohio’s program is up and running, so patients may obtain medical cannabis from other sources.
Under the law, that would allow patients to assert an “affirmative defense” until the program is operational to avoid prosecution for possession if they can show the letter and demonstrate they are otherwise complying with the law as written. The law spells out 21 illnesses and conditions as qualifying under House Bill 523.
The Ohio State Medical Association has urged members to proceed cautiously given the uncertainty.
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