The Court Had a Very Strict Interpretation
Video Transcribed: Is an Oklahoma cannabis card just a license to be searched. I’m Tulsa attorney James Wirth, and we’re talking about the repercussions of a new decision by the Oklahoma Court of Criminal Appeals and what it means for medical marijuana cardholders and the use of medical marijuana.
So Oklahoma 2018 by initiative petition passes medical marijuana. It is licensed through the OMMA so you can get a doctor’s recommendation and then get a license and then it’s legal for you to possess and consume marijuana as long as it’s in the appropriate amounts. So all perfectly legal activity.
However, is having a card just a license to be searched? And the answer, unfortunately, is it very well maybe because we have a decision from the Oklahoma Court of Criminal Appeals.
It’s a published decision 2021 OKCR16, the State of Oklahoma vs. Roberson, and that had to do with whether the smell of marijuana still establishes probable cause to search given that it could be perfectly legal marijuana because the person may have an OMMA, medical marijuana card.
The court had a very strict interpretation, did not say it’s just a factor to be considered in probable cause. It held that it alone, the smell of marijuana alone is probable cause to do a search of a vehicle as an exception to the warrant requirement, the automobile search.
The exact phraseology they use is as follows: the decriminalization of marijuana possession for those holding medical marijuana licenses in no way affects a police officer’s formation of probable cause based upon the odor, I’m sorry, presence or odor of marijuana.
So what they’re saying is the smell of marijuana alone, regardless of legalization for medical marijuana in Oklahoma, is the probable cause either for a search of a vehicle or potentially even in arrest.
So does that make your OMMA medical marijuana card licensed to search? I say there’s a good argument that it does. If you’re using medical marijuana, then you are, by having that smell on your person, automatically giving consent to the police to search according to the highest criminal court in this state, the Oklahoma Court of Criminal Appeals, and that decision by judge Lumpkin that came on June 17th of 2021.
So that’s something to consider if you’re a medical marijuana user. If you are looking for one of our criminal lawyers Tulsa, OK please visit makelaweasy.com
