Utah Legalizes Medical Marijuana! Kinda! Sort Of!

[UPDATE: the Utah Legislature passed, and the governor signed, a “compromise bill” that overwrites most of Proposition 2. More information and a new post will be forthcoming.]

Utah just passed Proposition 2, the Utah Medical Cannabis Act. But, being Utah, I can promise you it is going to be a unique and highly-regulated system. Here’s some important things you should know about the law (click on each for more details):

Proposition 2 Will Almost Certainly Be Modified by the Legislature Very Soon

The state legislature has repeatedly failed to pass a broad medical marijuana law, which is why this ballot initiative was necessary. But Utah law does not provide any special protection to a law that is passed by ballot initiative. That means it’s just like any law that got passed through the regular process, and the legislature is free to modify or even rescind it the next day. It seems very unlikely that the legislature (even a very conservative republican-controlled legislature like ours) would rescind or totally eviscerate a new law passed by majority vote of their own constituents, but they are already planning to tinker with it.

Interest groups have been holding meetings and trying to reach a compromise that the legislature could then pass in a special session in December or January of this year. That law will probably still have the same wide contours as Proposition 2, but many of the details will certainly change. So it’s still unclear right now what medical marijuana will look like in Utah once the dust settles.

Even If It Isn’t Changed by the Legislature, Some Important Provisions of Proposition 2 Won’t Go Into Effect Until 2020

As noted above, Proposition 2 will almost certainly be tinkered with, but even if it isn’t, the system for issuing medical marijuana cards to patients isn’t required to be up and running until March 1st, 2020. There are also extensive licensing and permitting requirements that growers and dispensers will have to go through before they open for business. Good money says that when the legislature does change the law, it’s not going to get much simpler or easier. So it’s gonna be a while – like years – before any regular system is in place.

The Eligibility Requirements for Medical Marijuana Patients Are Strict

Utah’s version of medical marijuana won’t be like California’s where one need only mumble something about back pain to be handed a medical marijuana card. Utah will require you to be pretty darn sick. As written in prop 2, medical marijuana patients would need to have one of the following illnesses (or apply for a special exception):

  • HIV or an Auto-Immune Disorder
  • Alzheimer’s
  • ALS (“Lou Gehrig’s disease”)
  • cancer, cachexia, or another condition “manifest by physical wasting, nausea, or malnutrition”
  • Crohn’s disease, ulcerative colitis, or a similar gastrointestinal disorder
  • epilepsy or a similar condition causing debilitating seizures
  • multiple sclerosis or a similar condition causing persistent and debilitating muscle spasms
  • PTSD
  • autism

The Good News: Affirmative Defenses to Criminal Charges Start Soon

Proposition 2 does provide some immediate benefits that should be useful for patients before any legal dispensaries are up and running and before the State starts issuing medical marijuana cards. That is, there is an “affirmative defense” to criminal charges for the people that will qualify for medical marijuana cards. As the law currently stands (at least as I write this on November 8, 2018), the following affirmative defenses will go into effect as soon as the Proposition itself goes into effect on December 1, 2018:

Before July 1, 2020, it is an affirmative defense to criminal charges against an individual for the use, possession, or manufacture of marijuana tetrahydrocannabinol, or marijuana drug paraphernalia under this chapter that the individual would be eligible for a medical cannabis card and that the individuals conduct would have been lawful after July 1, 2020.

For out-of-state residents (or people who recently moved to Utah), it also provides:

It is an affirmative defense to criminal charges against an individual for the use or possession of marijuana, tetrahydrocannabinol, or marijuana drug paraphernalia under this chapter if:

a) the individual is not a resident of Utah or has been a resident of Utah for less than 45 days and was issued a currently valid medical cannabis identification card or its equivalent under the laws of another state . . . and

b) the individual has been diagnosed with a qualifying illness . . .

There are some very, very important things to keep in mind about these defenses. Most important is that these defenses could very easily be changed by the legislature when they address this law in a special session over the winter. Second is that these are “affirmative” defenses, meaning that you can still be arrested or cited for marijuana crimes even if the defense applies to you, and you probably would be–it’s your job (or, ideally, your attorney’s job) to raise the defense to try and fight the charges later in court. Third, the law is complicated, and it it’s not perfectly clear what is required to show you “would” be eligible for a marijuana card before you have one. At the very least, it probably requires a written recommendation of some kind from your doctor, which might be pretty hard to get before the regular medical marijuana card process is up and running. Lastly, by the law’s own terms, the defenses only apply to charges “under this chapter” which is the chapter on controlled substances. Other laws in other chapters also criminalize different aspects of marijuana. For instance, driving with a measurable controlled substance is under the traffic-offenses chapter of the Utah Code, so if you are driving with any amount of THC or metabolite in your body, it seems very possible you could still be prosecuted under that section.

Long story short, these defenses exist in a very gray area that has not been defined or tested by the Courts at all yet. Anyone thinking that these defenses apply to them should tread very carefully. It is good that they exist, and for the right people, in the right circumstances, they might be a get-out-of-jail-free card, but don’t count on it.