Oklahoma lawmaker among those concerned for marijuana patients after recent court ruling | National News

An appellate court’s opinion that the odor of cannabis establishes probable cause for criminal activity has some, including at least one state lawmaker, concerned about law enforcement going forward.

Rep. Scott Fetgatter, R-Okmulgee, said the ruling related to a 2019 Tulsa County traffic stop “goes to show Oklahoma still has a long way to go in working on regulations for the legal medical marijuana industry.”

The Oklahoma Court of Criminal Appeals last week reversed a decision made in the case of Brandon James Roberson, who was arrested after police found evidence in his SUV that supported a warrant to search the motel room he used. He was charged with trafficking after quantities of multiple drugs were found in the room.

A district court judge agreed with Roberson’s defense that his disclosure to officers about having “possibly half a joint” was not enough probable cause of illegal activity, considering Oklahoma has licensed nearly 400,000 medical marijuana patients.

Overturning that logic in a unanimous ruling, the appellate court determined Oklahoma’s legal medical cannabis program “in no way affects a police officer’s formation of probable cause based upon the presence or odor of marijuana.”

Fetgatter said he’s concerned for patients with that phrasing appearing in case law.

“When 10% of your population has a medical marijuana card, we know that a lot of cars are going to have the smell of at least unburned marijuana,” he said Friday.

Elected in 2016, Fetgatter has been trying to update laws that address driving under the influence of drugs. As of now the presence of any Schedule I substance or its metabolites in blood or bodily fluid can, according to state law, be proof that a person is in the commission of DUI. That includes THC, which can stay in the system weeks after use.

“Even though the law is changed, you still have a cultural aspect that has to be overcome,” Fetgatter said. “And the unfortunate problem we have with our medical program is people are still doing things illegally, and until that stops and people can see the value in having the program — a medical program — it’s going to just take some time.”

He said law enforcement officers he’s spoken to have seemed less interested in prioritizing enforcement of cannabis-related activities since the passage of State Question 788.

The appellate court ruling, however, has one of the leaders of Oklahoma Cannabis Liberty Alliance concerned about a sea change. Lawrence Pasternack, a patient advocate, said in his view the ruling could in practice “basically nullify the significance of a card for the determination of a search.”

Roberson’s defense said it appeared Tulsa Police never attempted to ascertain his patient status or that of the passenger in his SUV, which they had pulled over near an east Tulsa hotel for a seatbelt violation and an expired tag. Officer Chris Beyerl cited an odor of “raw marijuana” as reason for a search, the findings of which allowed police to obtain a search warrant for their motel room.

In its opinion, the appellate court pointed to the odor, along with Roberson’s past legal history and reported affiliation with the Irish Mob gang, as part of the “totality of circumstances” that merited the vehicle search. Pasternack acknowledged those factors but said the court’s overbroad language could affect patients unduly.

“There might be future court cases that narrow the scope of what this court has determined,” Pasternack said Thursday. “Prior to this ruling, someone who could produce a (patient) card would have sufficient reason to be released. But the ruling does suggest that being able to produce a card has no bearing on whether or not law enforcement wants to pursue a search. And that’s worrisome.

“Having marijuana in the context of a state that’s legalized it for medical purposes, possession should no longer be construed as an indicator of further criminal activity.”

The Tulsa County Public Defender’s Office declined to comment on potential impacts of the ruling. However, it argued in court documents that police erred because Roberson had resisted efforts to search his SUV and claimed the traffic stop was pretext to profile him due to his past and his use of a motel in a “high-crime area.”

Tulsa Police have not yet returned a request seeking comment about the court ruling. Sarah Stewart, a spokeswoman with the Oklahoma Department of Public Safety, said Friday the agency would not comment but that an Oklahoma Highway Patrol leader indicated the ruling “affirms exactly what we do today.”

For those without a patient card who can cite a medical condition, state law indicates the penalty for cannabis possession consists of a fine but no jail time. Others can still be subject to jail time because of laws created following the passage of State Question 780, Fetgatter said.

“(My adult use bill) is still eligible to be heard next session, but there is no appetite in my opinion in the Legislature to run an adult use bill until we can rein in the nefarious activity going on within our rural communities with the medical program,” he said, referencing a series of recent Oklahoma Bureau of Narcotics raids.

“To be clear, an adult use program does not fix the issue of people being pulled over with the smell of burned or unburned marijuana in their car. That’s going to have to be something that’s addressed in DUI laws, which is something I’ve tried to work on in the past and I actually received a lot of pushback on from industry activists.”

In a brief concurrence in Roberson’s case, Judge Robert Hudson said the “admitted presence or odor” of cannabis “must remain a factor indicating criminal activity” despite state law allowing medical use. But Tulsa-based attorney Ron Durbin, who has multiple clients in the cannabis industry, said he worries the opinion is written broadly enough that it can be used to argue the smell or presence of cannabis is, on its own, a sign of a crime occurring.

“(Legalized marijuana) is now in most states,” Durbin said. “We’re gonna have to allow people to use marijuana the same way they use prescription medicine. Until then, we can’t kill the stigma and we’re going to continue to treat it differently than any other normal medication, which is exactly what happened in the opinion.”

Durbin said he would advise medical marijuana patients to store cannabis items in their trunk and keep their patient license easily accessible, which Fetgatter also advised. Durbin said the ruling makes clear Oklahoma’s need to reform drunken driving laws to more clearly state the presence or odor of cannabis is not proof of a crime when a medical card is present.

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10 things that are still illegal under Oklahoma’s medical marijuana laws

Can’t get a prescription for marijuana

Updated
Jun 22, 2021

Marijuana is listed as a schedule 1 controlled substance in federal law, so it cannot be prescribed, only “recommended.” A Ninth Circuit Court ruling ensures protection for doctors who issue recommendations to patients who may benefit from cannabis-based treatments, but federal law precludes doctors from “aiding and abetting” patients obtaining marijuana. This means doctors and patients cannot discuss dosages, strains or specific cannabis products for treating a specific ailment. Doctors instead fill out a form indicating they have discussed the risks of marijuana use with the patient and feel the benefits are worth the treatment.Some patients who see physicians for pain and are treated with opioids also may not be able to do so and use medical marijuana as a licensed patient.

A medical marijuana assessment at the Greenwood Wellness Clinic. MIKE SIMONS/Tulsa World file

Can’t use marijuana in the workplace or be impaired on the job

Updated
Jun 22, 2021

State Question 788 says only that an employer may not discriminate against an employee simply because of their status as a medical marijuana patient. This means that simply having a license cannot be grounds for termination or discipline. That employer can still, however, write and enforce rules that restrict the use of marijuana by employees just like any other controlled substance. No patients would be protected if they come to work high, use marijuana in the workplace or attempt to do their job while impaired.

Matilde Campodonico/AP file

Can’t transport marijuana across state lines

Updated
Jun 22, 2021

Patients who obtain medical marijuana cards in other states may purchase from dispensaries there, but the products may not be brought back to Oklahoma. Nor could a patient travel to a state with a recreational marijuana law and bring any legally obtained products back to Oklahoma. Those patients who plan to cultivate marijuana at their own homes would also not be permitted to obtain seeds from another state.

TOBY TALBOT/AP file

Can’t get a doctor’s recommendation inside a dispensary

Updated
Jun 22, 2021

A change to the law made it illegal to post a physician inside a medical marijuana dispensary, as this one did, for customers to sign up as patients inside the retail business operation. 

JOHN CLANTON/Tulsa World file

Can’t try the product while shopping

Updated
Jun 22, 2021

The use of any cannabis product is prohibited inside a licensed medical marijuana business, so patients should not expect samples like what some CBD shops have been able to offer.

MIKE SIMONS/Tulsa World file

Can’t smoke marijuana where tobacco also prohibited

Updated
Jun 22, 2021

The law makes cannabis like tobacco when it comes to public consumption by falling under the Smoking in Public Places and Indoor Workplaces Act.

Matilde Campodonico/AP file

Can’t give marijuana away

Updated
Jun 22, 2021

Nothing in the law allows for patients to transfer ownership of marijuana. Patients cannot donate or sell marijuana, even to other patients. Licensed patients may cultivate marijuana on their own residential property or, with written permission, on rented property. They cannot grow outdoors unless the plants are surrounded by a locked 6-foot fence. If the yield of the plants at harvest surpasses the legal amount that may be in a patient’s possession, the marijuana must be either processed or destroyed. Patients may process their own marijuana for concentrates or edibles but would not be permitted to perform extractions using butane.

David Zalubowski/AP file

Can’t drive while impaired on marijuana

Updated
Jun 22, 2021

Although it is legal for patients to have a certain amount of marijuana on their person, if that patient is behind the wheel, a law enforcement officer will evaluate whether the person is at all impaired. Driving while under the influence remains illegal even for medical marijuana patients.

Nigel Duara/AP file

Can’t possess an excessive amount of marijuana

Updated
Jun 22, 2021

A patient remains within the legal guidelines if they possess no more than 3 ounces of marijuana on their person and 8 ounces at their residence, 1 ounce of concentrated marijuana, and 72 ounces of edible marijuana. If caught exceeding those limitations, a patient would lose their license and could face criminal charges including intent to distribute or trafficking.

Ted S. Warren/AP file

Can’t smoke where you’re told not to

Updated
Jun 22, 2021

Renters have no legal right to smoke medical marijuana, even with a patient card, if the landlord/owner issues rules for residents that prohibit smoking.

Rogelio V. Solis AP file