Medical marijuana is moving forward in Kentucky. How will this affect criminal courts?

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With Kentuckians eligible to access medical cannabis in the commonwealth, prosecutors are preparing for the next steps to potentially charge fewer people with marijuana possession.

In Fayette County Attorney Angela Evans’ office, possession of marijuana made up nearly 25% of criminal diversion cases, according to Evans’ first annual report published in 2023.

However, with new laws that make marijuana legal in some instances, Evans predicts this number will decline.

In January 2023, an executive order signed by Gov. Andy Beshear began allowing qualifying Kentuckians with chronic conditions to use medical marijuana. And by 2025, Kentucky’s new medical marijuana law will take effect, granting legal access to noncombustible cannabis products without traveling across state lines.

Recreational use of marijuana remains illegal in Kentucky.

“Just given the numbers here for a percentage, my diversion participants might not exist if (medical marijuana) was legalized,” Evans said in an interview with the Herald-Leader.

Changes in law lead to questions for prosecutors

Criminal diversion is a program offered to first-time offenders who can receive community service opportunities in lieu of criminal punishment. First-time offenders between the ages of 18 and 27 made up 70% of participants.

Evans said the large number of young people could be analyzed in different ways.

“During your 18 to 20s, you know, you might be more of a risk-taker,” she said. “They might do it, get caught, and once they do that’s enough.”

When Evans got elected in 2022, she said possession of marijuana was “pretty much the only charge” that you could probably get expunged the same day if you entered a guilty plea.

“We have always treated it as a very low level, $100 fine, because again, technically it is illegal,” she said.

Evans said the full implementation of legal medical marijuana will “be one less charge that everyone has to deal with.”

Among the questions prosecutors and law enforcement will have to grapple with: how will prosecutors charge someone who has additional charges with their possession of marijuana? (Currently, law enforcement officers who smell marijuana can stop and search someone under the suspicion there could be other drugs.) With some marijuana use legalized, will officers still be able to stop under this suspicion?

“If it was, you know, the use of marijuana that prompted an officer to go to someone, that will potentially no longer be a reason to stop someone or question someone,” Evans said. “There are things that will be changing.”

Driving of the influence of marijuana would still be considered a crime, but to what extent, Evans questioned.

According to the proposed law, operating machinery under the influence of medical cannabis — including vehicles — is not authorized, and could still be punishable by civil, criminal or other penalties.

There are several ranges of DUI, and if a person is legally under the influence of their medication, Evans asked, how would this impact what they are charged with?

Evans’ report showed DUIs were the third-most charged crime by her office. Possession of marijuana was the fifth-most charged crime overall. In 2023, more than 530 people were charged in Fayette County for possession of marijuana. Of those, 507 cases were resolved.

County attorney: Biggest concern of attorneys is impaired driving

Jenny Oldham, the Hardin County Attorney and the president of the Kentucky Association of County Attorneys, said impaired driving is the largest concern among her colleagues.

As it stands, Kentucky has no “per se” amount or legal limit of what would establish impaired driving under medical marijuana use. For alcohol, the determined amount is .08% blood alcohol content.

Oldham said already there are more drug impaired drivers than there are alcohol impaired drivers.

“We know that partial legalization that that is going to put more marijuana into people, so there are going to be more drivers with that,” Oldham said. “While it is doing its job medically, it is going to be impairing the driver, so we need to have tools prepared to have a per se.”

Nationally, 19 states have established “legal limits,” for marijuana use. A majority of those have a zero tolerance policy. Six states including Illinois, Ohio, Montana, Colorado, Washington and Nevada have a limit of five nanograms or less.

While she doesn’t know the specific effect legalized medical marijuana could have on her county, she encourages her staff and other county attorneys to educate themselves about new law changes, and preparing for how they will respond if legislation passes.

House Bill 829 would establish the ability for local governments to be to choose whether they will permit medical marijuana businesses in their jurisdictions. With business licenses able to be issued by January 2025, governments need to have conversations about what they will and won’t accept, Oldham said.

In addition, local governments should also be discussing what their policy will be for employees, she said, like if they will have a zero tolerance policy for workers who could be eligible to use medical marijuana.

Medical marijuana moves forward for Kentuckians

An executive order from Beshear in effect as of Jan. 1, 2023, opened legal medical marijuana use to “thousands” of Kentuckians in need of relief, according to the governor.

The order allows Kentuckians with certain chronic conditions to get written physician approval for medical marijuana. Card holders can then travel to a state where it’s legal and bring the cannabis back to Kentucky.

People who qualify for medical cards are those living with 21 listed illnesses, which include cancer, arthritis, AIDS, ALS, Hepatitis C, Glaucoma, chronic pain, post traumatic stress disorder, Parkinson’s and epilepsy.

By 2025, Kentucky’s new medical marijuana law will take effect, granting legal access to noncombustible cannabis products without traveling across state lines.

Under 2023’s Senate Bill 47, the Cabinet for Health and Family Services has been tasked with building a medical cannabis program that would oversee the cardholders who use it, the health care workers who treat them and the dispensaries that provide it, along with other stakeholders.

That includes creating an electronic monitoring system to facilitate “the tracking of medicinal cannabis from the point of cultivation to the point of sale to cardholders.”

The cabinet — in partnership with the state Board of Medical Licensure, the Kentucky Board of Nursing, the Kentucky Center for Cannabis and a new advisory board — must do all this no later than July 1, 2024 in anticipation of the law becoming effective Jan. 1, 2025.

Staff writer Aaron Mudd contributed to this report.