With passage of Prop 2, legal protections for cannabis patients kick in Dec. 1

FILE - In this May 5, 2015, file photo, a marijuana plant grows at a Minnesota Medical Solutions greenhouse in Otsego, Minn. Minnesota Medical Solutions, one of two licensed medical marijuana manufacturers, lost millions of dollars in their first full year of operations, according to financial documents obtained by The Associated Press.(Glen Stubbe/Star Tribune via AP, File)

Julie King, a Saratoga Springs resident diagnosed with cancer earlier this year, has considered driving out of state after Dec. 1, stocking up on medical cannabis and bringing it home to manage her pain.

By that point, Proposition 2 or its replacement should be in effect, potentially shielding her from criminal prosecution for carrying and using the substance as a treatment. But the mother of four isn't sure she wants to chance it.

“Do we risk not knowing what the outcome could be if we’re crossing the border into Utah and we’re arrested? Is it worth the risk for that?” she said Wednesday, the day after the state’s voters approved the Prop 2 ballot initiative to establish a full-fledged medical marijuana program.

While it could take years for the plant-based treatment to go on sale in Utah, backers of the proposition say patients will still receive near-immediate benefits. That’s because the initiative, which is set to become law the first day of December, provides an “affirmative defense” provision protecting certain medical cannabis users from criminal conviction.

King and patients like her will have to decide if they’re comfortable putting their weight on the new legal framework.

It’s still unclear how law enforcement will treat patients found with cannabis after Dec. 1. On top of that, state lawmakers are poised to overwrite Prop 2 with an alternative medical marijuana plan next month, and there’s uncertainty about what the rules will be once the dust has settled.

Connor Boyack, founder of the libertarian Libertas Institute and a medical cannabis advocate, said he’s advising Utah patients to secure a physician’s go-ahead if they want to use the substance after Prop 2 goes into effect.

“That’s going to be your get-out-of-jail-free card,” he said Wednesday.

Reed Richards, a spokesman for the Utah Sheriffs' Association, said his group has been conferring about how to deal with the impending change to state marijuana laws. Until patients begin carrying medical cannabis cards, it will be tricky for police officers to figure out whether they’re using marijuana lawfully, he said.

Association members "just want to make sure we have a way of not pestering people that don’t deserve it, but not letting people do things they’re not authorized to do,” Richards, a former prosecutor, said. “Hopefully, they’ll come up with a form of some type that’s recognizable. A recommendation which would be like a prescription, and the officer can see that and verify it’s correct.”

The Utah Medical Cannabis Act — legislation pitched by top lawmakers as a preferable alternative to Prop 2 — also features an affirmative defense provision that patients could call upon in court, but it’s more restrictive than the one outlined in the ballot initiative. Critics of Prop 2 have objected to its broader protections, predicting they would provide legal covering for recreational pot users.

As attention shifts from the ballot initiative to the upcoming special session, Boyack said he’ll fight any legislative changes that would compromise patient access. The Prop 2 outcome, which demonstrated public backing for a medical cannabis program, should keep lawmakers on the right track, he said.

“We think that it will keep everyone honest in these negotiations,” he said.

The unofficial election results as of Wednesday afternoon showed Prop 2 winning 53 to 47. That 6-point margin doesn’t quite give initiative supporters the thundering victory they’d wanted, but they said the results do demonstrate broad public support for medical cannabis in Utah.

House Speaker Greg Hughes, on the other hand, was reluctant to read much into the outcome.

"I don't think you can glean a specific message from it," he said in a Wednesday phone interview.

The recent agreement to get behind a legislative alternative to Prop 2 muddled the issue at the ballot box, he said. Some voters supported Prop 2 because they know lawmakers will come back and rewrite it. Some opposed the initiative because they anticipate legislators will approve their own version anyway, he said.

Still, Hughes said he believes there is broad support in the Legislature to pass the cannabis act in a Dec. 3 special session. The measure was designed as a bridge between medical marijuana advocates and opponents of Prop 2, including The Church of Jesus Christ of Latter-day Saints and lawmakers with concerns about cannabis use.

Critics of the so-called consensus bill viewed it as an attempt to undermine Prop 2 and harbor doubt that the Legislature will follow through by passing a comprehensive cannabis plan. Hughes, who voted against the initiative, said his hope was that the ballot measure would fail just so he could prove the doubters wrong.

“We were pretty resolute that we had a path forward regardless of whether Prop 2 passed or failed,” he said.

Christine Stenquist, president of TRUCE Utah, a patient advocacy group, said she’s thrilled by the election outcome but remains unsure about the workability of the cannabis bill. For instance, while Prop 2 would allow private dispensaries to sell marijuana, the legislation calls for the state to take an active role in delivering the substance to patients. This state-run system would be the first of its kind in the nation.

The federal government, which still considers marijuana an illegal drug, has looked the other way as other states pursue medical cannabis programs or outright legalization. But they might frown on a state-centralized dispensing system, she said.

“It’s a little different when you’re talking about a Schedule I substance, and the state becoming the drug dealer,” she said.

Stenquist said her group will push legislators to eliminate the state dispensing system.