Rolling in the Bluegrass: A Canvas of Kentucky’s Current Laws on Marijuana


September 22, 2023

Rolling in the Bluegrass:  A Canvas of Kentucky’s Current Laws on Marijuana

By:  Erica F. Blankenship

On November 15, 2022, Governor Andy Beshear issued an Executive Order[1] pardoning all those charged with possession of marijuana after the effective date so long as the following conditions were met:  (1) it was medical marijuana lawfully purchased within the United States but outside the Commonwealth; (2) the person must produce written proof of purchase showing place, physical location, and date of purchase; (3) the amount of marijuana in possession must be under eight ounces; (4) and the person must produce a written certification[2] from a healthcare provider certifying that he/she has been diagnosed with one of several particular conditions.[3]  The Executive Order became effective January 1, 2023.

While many have begun to believe marijuana has been “legalized” in Kentucky, this is simply inaccurate.  First, the Governor’s executive order has no effect on federal law applied to those in Kentucky.  Second, the Executive Order only applies to medical marijuana that has been lawfully purchased in another state.  Third, the offense of trafficking in marijuana is still prohibited by Kentucky law.

Kentucky has a regional chapter of the National Organization for Reform of Marijuana Laws (“NORML”).  The chapter’s Deputy Director, Lauren Bratcher, is “telling everyone to make sure they know this does not mean that cannabis legal.  There’s nothing legal about cannabis in Kentucky right now.”[4]  However, law enforcement has also stated that enforcement of marijuana offenses “have not been a high priority for some time.”[5]  Lt. Bradbury with Covington Police gave the following advise if you are involved in a traffic stop and have medical marijuana in your possession:  “During a traffic stop, it would probably be best that they advise the officer that they are in fact in possession of marijuana and then show that they have the required things like the certification from the doctor, that they have the receipt from the legal dispensary.”[6]  However, there are some important facts to keep in mind:  “you must purchase the marijuana from a dispensary. You cannot grow your own.  So, you must cross state lines with it.”[7]  Further, the order is “only good within the state. Y ou cannot fly or drive to other places with your medical marijuana.”[8]

So, if you currently use medical marijuana, your best course of action is to have your proof of purchase and written certification prepared and with the marijuana.  Be sure that these two items comply with the Executive Order’s requirements.  If law enforcement continues to investigate after presenting these items, be sure to request an attorney be present before answering any further questions!

The Governor’s Executive Order only extends to criminal liability.  Thus, if you utilize medical marijuana and your employer has a policy regarding a drug free workplace, you could still face potential adverse actions regarding that drug use.  Currently, private employers are not required to accommodate employees’ use of medical marijuana for disabilities.  However, given the changing landscape of medical marijuana law, this could be a changing question for the Courts.  Normally, an accommodation for a disability must be “reasonable” for an employer to implement it for an employee.  In this shifting backdrop regarding attitudes towards marijuana, the “reasonableness” of such an accommodation could be something considered by a Court. However, it is not guaranteed that a Court would consider such an accommodation reasonable.

Medical marijuana also has other implications beyond criminal law – can it be used against you in a custody case?  What about the Cabinet for Health & Family Services?  Is it a problem in your Social Security disability case?  How about workers’ compensation?  In all these issues – and others – Z&S Law can help.  Please call (859) 426-1300 for a consultation.

[1] The Executive Order can be found and read in full at: https://governor.ky.gov/attachments/20221115_Executive-Order_2022-798_Medical-Cannabis.pdf (last accessed Sept. 12, 2023).

[2] The written certification must include the patient’s name, date of birth, home address, and telephone number; the healthcare provider’s name, address, telephone number, and professional license number; a statement that the healthcare provider has a bona fide healthcare provider relationship with the patient/individual; a statement that the patient suffers from one of the particular specified medical conditions; and the healthcare provider’s signature and date.

[3] These conditions are: cancer; amyotrophic lateral sclerosis or Lou Gehrig’s disease; epilepsy; intractable seizures; Parkinson’s disease; Crohn’s disease; multiple sclerosis; sickle cell anemia; severe and chronic pain; post traumatic stress disorder; cachexia or wasting syndrome; neuropathies; severe arthritis; hepatitis C; fibromyalgia; intractable pain; muscular dystrophy; Huntington’s disease; HIV or AIDS; glaucoma; or a terminal disease.

[4] Christian Hauser, “What to Expect When Pulled Over by Police in Kentucky with Medical Marijuana,” Local12 (Feb. 7, 2023), available at https://local12.com/news/local/what-to-expect-when-pulled-over-in-kentucky-with-medical-marijuana-pot-legal-indiana-michigan-illinois-state-lines-border-passing-law-enforcement-agencies-cannabis-compliance-governors-order-bradbury-card-covington-cincinnati-ohio (last accessed Sept. 12, 2023).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

 

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Covington, KY 41017-5710

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