The passage of State Question 788 impacted every Oklahoman more than they may know. In June 2018, Oklahoma became the 30th state to allow for the sale of medicinal marijuana to state-registered patients.[1] If someone does not have a medical marijuana card themselves, they are guaranteed to know someone who does. There were over 350,000 medical marijuana-licensed patients in Oklahoma in 2023.[2] Since the passage of State Question 788, the pertinent law surrounding the use, growth and consumption of marijuana has become far more complex.

Oklahoma cannabis law is a quagmire, constantly changing and adapting to reflect the current morals and values of our state lawmakers. The laws can be very confusing and turn an innocent situation into a crime scene. There are numerous scenarios in which a person who lawfully possesses marijuana can make a choice that turns their legal weed into an illegal substance. This article will outline some illustrative examples of legal, medicinal cannabis use that turned into a crime in Oklahoma.

THE FRIENDLY CONCERT GOER

Billy is at a Willie Nelson concert, probably at Cain’s Ballroom or the Oklahoma City Zoo Amphitheater, watching a great show. Billy has an Oklahoma Medical Marijuana Authority (OMMA) patient license; therefore, he can legally use cannabis for medicinal purposes. The crowd makes Billy a little anxious, so he grabs one of his prerolled cannabis joints and starts to smoke it. Billy’s buddy, Adam, who also has an OMMA card, sees Billy using the marijuana and asks him “for a hit.” Billy, without thinking twice, passes the joint to Adam. Under Oklahoma law, Billy could be charged with a felony.[3] Billy has violated 63 O.S. §2-401(A)(1), which holds it is unlawful for a person to distribute a controlled dangerous substance.[4]

When we think about distributing drugs, we think of cartels, Breaking Bad or scenarios involving large amounts of an illegal substance for some type of financial gain. Billy was not a career drug dealer, nor did he intend to give the drugs to Adam in exchange for money. Furthermore, Billy was lawfully prescribed the marijuana. Yet, the Oklahoma Court of Criminal Appeals has held that distribution is simply the delivery, whether actual or constructive, of a controlled dangerous substance to another.[5] If Billy were convicted of this crime, he would face up to five years in the Oklahoma Department of Corrections and a $20,000 fine.[6] Billy’s seemingly harmless action could put him behind bars.

THE ALLEGEDLY IMPAIRED DRIVER

Maria has a medical condition that requires her to take a daily prescription of medical marijuana. Maria is prescribed medical marijuana and consumes it on Friday. She does not drive after consuming her prescribed cannabis. On Monday, while sitting at a stoplight, Maria was rear-ended by an inattentive driver. When police officers arrived at the scene, they questioned both drivers. Because of the smell of marijuana in Maria’s car and her bloodshot eyes, the officer jumped into suspicion mode and made the unsupported conclusion that Maria was under the influence of marijuana. Maria had just worked an overnight shift, had bad allergies and was extremely tired. She was also legally transporting her prescribed medicine in the car. However, the officer arrested Maria and gave her the option to submit to a blood test. Maria lawfully possessed medical marijuana and knew she was not under the influence of anything, so she submitted to the blood draw after her arrest.

Oklahoma law is quite clear: Driving with any registrable amount of marijuana in your system is illegal.[7] Whether it was legally prescribed or not has no bearing on an officer’s ability to find probable cause that a person committed a DUI. While at first, this might seem like a common-sense policy to make our roads safer, it leaves no room for major differences in how marijuana affects the body and how impairment is measured. Our no-tolerance per se DUI laws passed in 2013 treat marijuana consumption by the federal standard. Since marijuana is a Schedule I drug and illegal federally, any trace amount of marijuana or its metabolites in bodily fluid is enough to trigger a DUI arrest, regardless of intoxication or impairment.[8]

The main psychoactive ingredient in marijuana is Delta-9-tetrahydrocannabinol, commonly known as THC.[9] Because THC is fat soluble, it remains in the body long after the psychoactive effects have worn off.[10] In fact, THC can stay in the body for 30 days after consumption, long after impairment.[11] A National Institute for Justice report conducted in April 2021 found that marijuana’s cognitive and psychomotor effects, those that indicate potential impairment, returned to baseline after four to eight hours.[12] Another study suggests that common field sobriety tests administered by officers lack sensitivity to cannabis impairment.[13] These field sobriety tests were created to detect alcohol impairment, not cannabis impairment.[14] This study provides further evidence that field sobriety tests and biological concentrations of THC (in the blood) may have limited capacity to identify individuals who are intoxicated from cannabis.[15] But in Oklahoma, THC presence in the blood is often used to convict, regardless of a prescription or actual intoxication. Smoking marijuana on Friday can lead to a DUI arrest on Monday – or the next Monday or longer – even when there is no impairment.

THE FIREARM OWNER

Fred is an average Oklahoman who enjoys outdoor activities, especially those involving firearms. He is an avid deer hunter, skeet shooter and connoisseur of collectible guns. After a hunting accident, Fred’s physician prescribed him a medical marijuana card. He uses this prescription to combat the persistent chronic back pain he has endured since the accident.

Fred decided to buy himself a new Ruger rifle for the upcoming deer season. When Fred went to register his new gun, he filled out the form like he had numerous times in the past. However, this was the first time he had registered a firearm after being prescribed medical marijuana. When the form asked if Fred used any drugs or illegal substances, he instinctually marked “no.” Fred could be charged with a federal felony for his answer.

Under our federalist government system in the United States, there can be conflicts of law between a state statute and the federal code. The current federal government code classifies marijuana as a Schedule I drug.[16] Even though Fred was issued a medical marijuana card in Oklahoma, where medical marijuana is legal, he has violated federal law by possessing a Schedule I drug, i.e., marijuana, and indicating he did not use drugs on his federal gun registration form.[17] Federal law preempts state law based on the federal Constitution’s supremacy clause.[18] Fred’s ignorance of the conflicting federal and state laws could result in him being charged with a crime and facing up to 10 years in federal prison.[19]

THE CANNABIS FARMER

John owns 100 acres of land in rural Oklahoma. John applied for and was issued a license to grow medicinal marijuana on a small portion of his land by OMMA and the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBNDD). As John’s license’s expiration grew closer, he began the renewal process with OBNDD. John made numerous attempts to contact the agency to see what he needed to do to comply with the renewal process but never received a response. His license ultimately expired.

OBNDD requires an inspection of the land used to grow in the renewal process. As the license renewal process slowly continued, an OBNDD officer came to inspect John’s land. John informed the officer he had applied for a renewal of his license, but no one from OBNDD had replied. The officer reported John as an “unlicensed grower,” and a subsequent search warrant was issued for John’s property. John could face felony charges for trafficking controlled dangerous substances.[20] Even though John was in the process of renewing his license, when the officer saw the hundreds of marijuana plants John was growing while trying to renew his license, the officer had probable cause to arrest John. The statute only requires the officer to identify 25 pounds or more of a “detectable amount” of marijuana for trafficking.[21] John would be facing a fine ranging from $25,000 to $100,000 and up to 20 years in the Department of Corrections.[22]

IT'S TIME TO CLEAR THE CONFUSION

The current statutory scheme is not set up for everyday life. The strict per se drug laws are not readily and easily understandable for the ordinary person.[23] How can using a legally prescribed drug be okay in some cases and a crime in others? The current marijuana laws were not written to consider different scenarios, like the ones described, where innocent people believe they are doing the right thing, yet they are committing crimes. Oklahoma marijuana laws do not reflect the intention of State Question 788 voters, nor are they fair to the hundreds of thousands of medical marijuana-licensed Oklahomans.

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ABOUT THE AUTHORS

Sabah Khalaf is the owner and managing attorney of the Khalaf Law Firm in Tulsa. His practice is focused on high-stakes litigation and criminal matters. Mr. Khalaf practices in federal, state, tribal and municipal criminal courts from prefiling investigations to trial.

 

 

 

 

 

Cade Russell, a native of Pryor, will graduate from the TU College of Law with highest honors in May 2025. He is a licensed legal intern who has worked at the Khalaf Law Firm for the majority of his law school career. He received the OBA Litigation Section’s Litigation Award in 2024.

 

 

 

 

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ENDNOTES

[1] https://bit.ly/4crSk3u (last visited Dec. 26, 2024).

[2] OMMA Annual Report: 2023 https://bit.ly/3Yks2tV (last visited Dec. 26, 2024).

[3] 63 O.S. §2-401(A)(1).

[4] Id.

[5] Starks v. State, 1974 OK CR 114, ¶¶2-4 (holding “Distribute means to deliver other than by administering or dispensing a controlled substance.”) (Okla. 1974); 63 O.S. 2-101 (A)(15).

[6] 63 O.S. §2-401 (B)(2) (OSCN 2024).

[7] 47 O.S. §902 (A)(3) (OSCN 2024).

[8] Id.

[9] Compton, R., “Marijuana-Impaired Driving - A Report to Congress.” (DOT HS 812 440). Washington, D.C.: National Highway Traffic Safety Administration at page 4 (July 2017).

[10] Id.

[11] Id.

[12] National Institute of Justice, "Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication," April 5, 2021, nij.ojp.gov: https://bit.ly/44qsN8C (last visited Dec. 30, 2024).

[13] National Library of Medicine, “Assessment of Cognitive and Psychomotor Impairment, Subjective Effects, and Blood THC Concentrations Following Acute Administration of Oral and Vaporized Cannabis,” 2021, https://bit.ly/4j3TJj2 (last visited Dec. 30, 2024).

[14] Id.

[15] Id.

[16] 21 U.S.C. §812 (c)(c)(10).

[17] Id.; 18 U.S.C. §922 (a)(6).

[18] U.S. Const. Art. VI., §2; New Jersey Thoroughbred Horsemen’s Assoc. v. Natl. Collegiate Athletic Assoc. 584 U.S. 453, 477, (holding “Preemption is based on the Supremacy Clause and that Clause is not an independent grant of legislative power to Congress. Instead, it simply provides ‘a rule of decision.’”) (U.S. 2018).

[19] 18 U.S.C. §924 (a)(2).

[20] 63 O.S. §2-415 (B) (OSCN 2024).

[21] Id.

[22] Id.

[23] State ex rel. Coats v. Rakestraw, 1980 OK CR 24, ¶8, (holding a “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”) (citing Connally v. General Constr. Co. 269 U.S. 385, 389) (Okla. 1980).