Medical Marijuana Becomes Legal in Ohio in September – Full implementation takes place over two-year span

On June 8, 2016, Ohio Governor John Kasich signed H.B. 523 into law.  By doing so, Ohio becomes the 25th state to legalize medical marijuana.  However, there are numerous important portions of the law that you must be aware of before it takes effect on September 8, 2016.

Under the law, a patient, on the recommendation of a physician, will be permitted to use medical marijuana to treat qualifying medical conditions.  These conditions include AIDS, ALS, Alzheimer’s, cancer, CTE, Crohn’s, seizure disorders, fibromyalgia, glaucoma, hepatitis C, IBS, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, ulcerative colitis, Parkinson’s disease, PTSD, and pain that is either chronic and severe or intractable.  A physician must apply for permission to prescribe marijuana and will be required to complete continuing education in the use of medical marijuana.  Patients and caregivers of those receiving medical marijuana must be registered with the Board of Pharmacy.

The medical marijuana program will be fully operational not later than two years after the effective date of the bill, September 8, 2016.  In fact, dispensaries will not be set up for at least another year. The Department of Commerce, in conjunction with a 14-member bipartisan Advisory Committee have until May 2017 to determine rules and regulations for cultivators.  However, patients will be provided legal protections (an affirmative defense for possession) beginning on September 8, 2016, with dispensaries to begin selling medical marijuana to patients by 2018.

It is important to note, under the law, individuals are not permitted to grow their own marijuana or smoke any marijuana.  Instead, patients will be permitted to utilize marijuana through patches, some edibles, and vaporizing marijuana.

It is critical to note   that medical marijuana, like all marijuana, is still illegal under federal laws.  Further, employers may continue to establish and enforce policies prohibiting the use of marijuana by their employees.  Just because medical marijuana is legal under the laws of Ohio does not mean that a person’s consumption of it is guaranteed without consequences.

This new law will continue to develop as the processes and procedures for the regulation and operation of medical marijuana businesses are established further by the State Medical Board, Board of Pharmacy, and Department of Commerce as they make additional recommendations for the medical marijuana program. The attorneys at Mazanec, Raskin and Ryder will keep you updated as additional guidance on medical marijuana cultivation, dispensing, and use becomes available.


For questions or more information on the subject matter of this article, please contact:

Terry Williams (border)

 

Terry L. Williams – MRR Cleveland
twilliams@mrrlaw.com / 440.424.0017

 

 

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MRR Ohio Legislative Updates: June 17 – July 14, 2016

Notes from the House of Representatives

  • HB No. 583 was introduced to remove any requirement under the Public Employees Collective Bargaining Law that public employees join or pay dues to any employee organization, to prohibit public employers from requiring public employees to join or pay dues to any employee organization, and to prohibit an employee organization from being required to represent public employees who are not members of the employee organization.
  • HB No. 585 was introduced to provide that a record created by a body camera that is worn or carried by a law enforcement officer who is engaged in the performance of the officer’s official duties generally is a public record, to provide in the specified circumstances in which such a record is not a public record that there are conditions under which the record becomes a public record, to provide that the portions of a record that contain personal information or information that is not relevant to the offense or delinquent act are exempt from inspection and copying under the Public Records Law and are subject to redaction, and to require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
  • HB No. 586 was introduced to require the Ohio Civil Rights Commission to establish a system for individuals to make anonymous complaints regarding employers discriminating in the payment of wages.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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Two MRR Attorneys Set to Speak at OACTA Seminar

On August 26, 2016, at the Quest Conference Center in Columbus, Ohio, two MRR attorneys will serve as seminar speakers at the Ohio Association of Civil Trial Attorneys (OACTA) continuing legal education program, “Governmental Liability Seminar.”

Jeffrey T. Kay (Cleveland) presents a “Primer & Update on Ohio Political Subdivision Roadway Liability.” The session will provide an overview of the applicable sections of the Ohio Revised Code and recent court interpretations involving those sections. Jeff focuses his practice on civil rights and governmental liability, business and commercial law, and appellate law, with a concentration on civil litigation defense. He represents insurance companies/risk pools and their insureds with respect to both first and third-party claims, including employment discrimination, professional liability, municipal liability, automobile negligence claims, general commercial matters, bad faith claims, uninsured claims, products liability, wrongful death claims, commercial premises liability claims, and property and casualty claims.

Stacy V. Pollock’s (Columbus) presentation is entitled, “Degrees of Care: How Careful Does a Political Subdivision Need to be to Retain that Immunity.” Stacy will analyze Ohio Revised Code Chapter 2744 immunity with an emphasis on the lesser-understood exceptions. She focuses her practice on employment and labor law, advising both public and private employers in matters involving leave and discipline issues, personnel policy matters, and labor negotiations and arbitrations. She also has considerable experience in education law, representing schools and school administrators on employee and student disciplinary matters. Prior to working in private practice, she worked as a staff attorney with the Ohio Legislative Service Commission in its state and local government section.

To view the seminar brochure, please click here.

For registration and additional information about OACTA, please visit their website at www.OACTA.org

Law Enforcement Blog – Birchfield v. North Dakota: How it Affects OVI Prosecutions under the U.S. Constitution and Ohio Law

The collection and analysis of a person’s breath, blood, or urine is considered a “search” under the Fourth Amendment, meaning that this collection and analysis is only constitutional if a warrant is first obtained, or if any of the well-established exceptions to the search warrant requirement exist. In the blood-alcohol test realm, the two most frequently discussed exceptions are the exigency (urgency) exception, and the search incident to arrest.

In 2013, the Supreme Court decided Missouri v. McNeely, in which it held that the natural dissipation of alcohol in a person’s blood could sometimes create an exigent circumstance, but that the fact that alcohol dissipates does not create a per se exigency allowing for a warrantless blood test of an OVI suspect. A determination of whether an exigency exists and whether a warrant is required prior to collecting a blood sample is to be decided on a case-by-case basis. However, McNeely did leave open the question as to whether the warrantless collection of a blood sample is permitted under the search incident to arrest exception.

In the recently decided case of Birchfield v. North Dakota, the U.S. Supreme Court determined that blood tests are a significant intrusion on an individual’s privacy and that the individual’s privacy interests outweigh the state’s need to obtain evidence in driving under the influence of alcohol prosecutions.  As a result, the search incident to arrest exception cannot be used to search an OVI suspect’s blood without a warrant.  Breath tests, on the other hand, are far less intrusive than blood tests, and do not allow the government to collect information about the suspect that may be irrelevant to the OVI prosecution. As a result, law enforcement may continue to search suspects’ breath without first obtaining a warrant.

In cases in which a breath test is not feasible and law enforcement wishes to have the blood of a suspect tested for alcohol content, an officer must first obtain a warrant, or may rely on the exigency exception if a true exigency exists – for example, a warrant will be impossible to obtain within a reasonable amount of time.

The most notable impact of Birchfield upon Ohio law is that criminal penalties may no longer be imposed for the refusal of a blood test. In Ohio, an OVI with a refusal is technically a different offense than a regular OVI, which carries greater penalties. In the wake of Birchfield, a suspect cannot be subject to the “OVI with refusal” offense if he or she refuses a blood test. However, suspects may still be charged with the heightened offense if they refuse a breath test. Furthermore, Administrative License Suspensions are considered civil penalties, and may be imposed for the refusal of any type of test. Finally, the refusal of any type of test, including a blood test, may still be used as evidence against a suspect at trial.

In the wake of Birchfield, law enforcement officers should offer breath tests instead of blood tests when investigating a person for OVI when available. Furthermore, officers should seek warrants to obtain blood samples from suspects when breath testing methods are unavailable, and should only rely on the exigency exception when a warrant cannot possibly be obtained.

It is notable that Birchfield does not discuss urine tests, and law enforcement should err on the side of caution when seeking urine tests. Breath testing methods should still be favored over urine tests, and because urine tests could be easily analogized to blood tests by courts, warrants should be obtained prior to seeking urine tests, if possible.

Finally, Birchfield does not discuss blood tests in the driving under influence of drugs context. Part of the reason a breath test can be obtained without a warrant while a blood test cannot in the driving under the influence of alcohol context is because a breath test can adequately serve law enforcement interests when detecting alcohol. However, the same is not true with detecting drugs. As the permissibility of obtaining blood samples without first securing a warrant in the driving under the influence of drugs context is not clear, officers should continue to err on the side of caution and obtain search warrants prior to obtaining blood tests when possible.


MRR Article: The Supreme Court of Ohio Confirms the Open Meetings Act Extends to Electronic Communications

Recently the Supreme Court of Ohio was tasked with determining whether a series of emails between and among a majority of the members of a public body qualifies as a meeting for the purposes of Ohio’s Open Meetings Act (R.C. § 121.22 ). The issue came before the Court when a Board of Education Member from the Olentangy Local School District sued his own board.

In White v. King, 2016 -Ohio- 2770, plaintiff Adam White was a former member of the BOE and had conducted an independent investigation into alleged improper expenditures. Thereafter, the four other members of the Board voted to amend a policy, which effectively prevented future independent investigations. The Columbus Dispatch wrote an editorial criticizing the restrictive policy and the board members (excluding White) sought to respond to the article to defend their decision. The four board members collaborated in drafting a response via a series of emails. White filed suit alleging that the other board members had violated the Open Meetings Act because the private emails sought to ratify a prior action of the Board, which he believed constituted a prearranged discussion of public business.

The Supreme Court of Ohio explained that under the Open Meetings Act, all meetings of any public body are declared to be public meetings open to the public at all times. A meeting, according to the Act, is any prearranged discussion of the public business of the public body by a majority of its members. The Court opined that nothing in the language of the statute mandated that a meeting occur face to face, and the distinction between in-person communications and email communications is irrelevant for the purposes of the statute. The Court reasoned that allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications subverts the purpose of the Act.

Ultimately, the Court agreed with White’s contention and accepted that “[u]nder the Ohio Open Meetings Statute…liberally construed, private deliberations concerning official business are prohibited, whether such deliberations are conducted in person at an actual face-to-face meeting or by way of virtual meeting using any other form of electronic communications such as telephone, email, voicemail, or text messages.”

This decision has the effect of curtailing email conversations between and amongst members of a public body, insofar as those conversations relate to public business. Members of any public body should be advised that if their emails contain discussions regarding what would normally be considered public business, they risk violating the Act. Instead, members should limit their conversations regarding public business to open meetings only.


For any questions concerning the subject matter of this article, please do not hesitate to contact Stacy Pollock at spollock@ralaw.com.