(Thinkstock / Getty Images)

Ohio docs writing recs for patients to buy medical marijuana in Michigan before rules set

CLEVELAND — Ohioans wanting medical marijuana have been crossing the border into Michigan, where some Detroit-area dispensaries will sell to out-of-staters who are issued recommendations for cannabis use months ahead of the drug becoming available in their home state, according to officials from a company providing the recommendations.

Those recommendations, given by doctors working for a Toledo business or any other Ohio physician, won’t necessarily help someone in court if they are busted for having pot in Ohio. Possession of less than 100 grams (about 3.5 ounces) is a minor misdemeanor in Ohio with a maximum $150 fine, but could lead to someone losing their driving privileges for six months.

While it’s a violation of federal law to cross state lines with marijuana, legally obtained or not, the likelihood of someone being prosecuted federally for carrying smaller amounts of marijuana is negligible.

Even so, there needs to be clearer guidance on the early medical-pot recommendations, said Chris Lindsey, an attorney for the national advocacy group Marijuana Policy Project.

“They didn’t revisit the language to ensure patients were protected,” Lindsey said.

Ohio’s medical law was approved last year and requires that dispensaries must open by September 2018. The Ohio Attorney General’s Office says marijuana possession, medical or otherwise, remains illegal while state agencies write the rules and regulations on how cannabis can be grown and sold.

The doctors working for Toledo’s Omni Medical Services are relying on an ambiguous provision in the new law that says doctors can give people “affirmative defense” letters to use in court if cited or arrested for possession ahead of dispensaries opening.

The apparent loophole says that there must be a doctor-patient relationship and that a person must have one of the Ohio law’s 21 qualifying conditions for medical marijuana use, which include cancer,
AIDS, Alzheimer’s disease and epilepsy.

Louis Johnson, Omni’s managing director, said he conferred with attorneys and the Ohio Medical Board before the company’s two physicians began making recommendations.

“We know what we’re doing is legal,” Johnson said. “We’re out in the open. We’re not hiding in the dark.”

The state medical board said it would investigate complaints against physicians who have recommended medical marijuana, but did not say whether doctors who followed the provision’s requirements could face discipline. A medical board spokeswoman said all investigations are confidential and wouldn’t say whether the board has received any complaints about physicians making marijuana recommendations.

Johnson said he and his doctors are interested only in helping people get medicine they need. Hundreds of people have been given recommendations so far, but he wouldn’t offer a more detailed number, he said.

“We’re not here to serve people to get high,” Johnson said. “That’s not what we’re about.”

Omni patients pay $250 for the initial visit and must provide copies of medical records to prove they qualify for medical cannabis. Patients receive the recommendations, an affirmative defense letter and medical marijuana card labeled with Omni’s name, not the state of Ohio. All three documents are supposed to be good for 90 days.

The Associated Press found no reports that anyone has been arrested for bringing medical pot in from Michigan. But it did find one instance in Ohio in which an affirmative defense letter not only prevented a man from being cited for possession, but it also led to police returning his pot.

A police task force raided a man’s home in suburban Cleveland in March searching for narcotics and found only a small amount of marijuana, not enough to trigger a felony charge, said attorney Thomas Haren, who wouldn’t identify his client.

The man explained to police it was for treatment of glaucoma and provided a copy of an affirmative defense letter from his doctor. Haren wouldn’t say whether the man obtained his pot or identify the doctor, but said he didn’t work for Omni.

Haren said he called the commander of the task force and police returned the marijuana to his client along with a letter from police that said he wouldn’t be prosecuted.

“This is the gold standard for how it’s supposed to work,” Haren said.

The task force is headquartered in the Cleveland suburb of Bedford, where the police chief cautioned against viewing the return of the pot as a “major victory” for medical marijuana supporters.

“The facts that led up to the search warrant didn’t live up to what was found,” Chief Kris Nietert said.