cedar rapids / iowa city criminal and OWI-DUI defense

Cedar Rapids OWI Lawyer: Will Medical Marijuana Establish a New OWI affirmative defense?

by David A. Cmelik Law PLC

Not directly. The Iowa Legislature in May 2017 enacted Iowa Code Chapter 124E to expand the manufacture, dispensation, possession, and medical use of the psychoactive ingredient in marijuana, tetrahydrocannabinol, or, THC, for the use of a limited number of medical diagnoses including:

Cancer (with severe or chronic pain, nausea or severe vomiting, cachexia or severe wasting);
Multiple sclerosis with severe and persistent muscle spasms; seizures; AIDS or HIV (as defined in section 141A.1);
Crohn’s disease;
Amyotrophic lateral sclerosis (ALS);
Any terminal illness, with a probable life expectancy of under one year (if the illness or its treatment produces one or more of the following:

severe or chronic pain
nausea or severe vomiting;
cachexia or severe wasting);
Parkinson’s disease; and
untreatable pain.

Source: Iowa Code Chapter 124E.2(2) and Iowa Department of Public Health

Governor Branstad in May 2017 signed into law an expansion of a little known medical marijuana law that now allows two local manufacturers and five registered dispensaries to distribute any “medical cannabidiol delivered in a form recommended by a newly created Medical Cannabidiol Board,  approved by the Iowa Board of Medicine, and adopted by IDPH pursuant to rule.”

Permanent residents of Iowa at least age 18 who are also not convicted of disqualifying felonies may submit to the Department of Transportation an affidavit signed by a medical provider that the patient suffers from such a debilitating medical diagnosis above. The Department of Public Health further defines disqualifying felony as:

“a violation under federal or state law of a felony under federal or state law, which has as an element the possession, use, or distribution of a controlled substance, as defined in 21 U.S.C. §802(6). The Department of Transportation will issue cannabidiol cards. See Iowa Code 124E.4 et seq.”

Iowa Administrative Code 641—154.1

The contours of the law with regard to criminal prosecution are as yet unknown. But it is odd that the Department of Transportation is issuing the cannabidiol registration cards without mention of the privilege to operate a motor vehicle under the influence of the newly legalized medical marijuana.

Be advised that it may or may not be possible to present an OWI prescription drug defense pursuant to Iowa Code § 321J, which allows that the statute criminalizing drunk driving “does not apply to a person operating a motor vehicle while under the influence of a drug if the substance was prescribed for the person and was taken under the prescription and in accordance with the directions of a medical practitioner as defined in chapter 155A or if the substance was dispensed by a pharmacist without a prescription pursuant to the rules of the board of pharmacy, if there is no evidence of the consumption of alcohol and the medical practitioner or pharmacist had not directed the person to refrain from operating a motor vehicle.” Iowa Code § 321J.2(11)(a).

It is very likely that medical professionals will caution against driving while under the influence of medical marijuana which negates such a defense.

The form of THC manufactured, dispensed, possessed, and used is restricted. For example, manufacturers may not produce so-called “edibles” in the State of Iowa under the new registration scheme. See Iowa Code § 124E.6. Moreover, a registration card holder may not smoke marijuana obtained under the new scheme. Iowa Code § 124E.16.

The new law gives full faith and credit to medical marijuana registration cards issued by the several States.

Note that there is a statutory affirmative and complete defense “baked” into the medical marijuana law that is discussed here. However, there is no such affirmative defense created for operating while under the influence.

That may be because the law changes are very new, untested, and marijuana is a federally prohibited Schedule I narcotic. It may also be because there is already a prescription drug defense in the OWI statute or that legislators did not hand opponents of the law ammunition for its defeat by suggesting there would be more impaired drivers on the road immunized by such a defense.

If you or a loved one has been arrested for OWI in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC, for an initial consultation today. However, remember that a blog is not legal advice and that no attorney-client relationship is established by sending unsolicited information to an attorney over the Internet. 

1450 Boyson Road Suite C-2A Hiawatha, Iowa 52233     319-389-1889

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Marijuana leaf

Is Reefer Madness Finally Over in Iowa?  ​In House File 524, the Legislature has enacted and the Governor has signed into law an expansion of Iowa's little known medical marijuana law. However, the contours of this law are evolving. While an affirmative, complete defense to possession of marijuana and other Iowa drug crimes was "baked" into the statute, OWI wasn't directly addressed. While a prescription drug defense already exists there, query if it will be applicable to medical marijuana.  If you or a loved one has been arrested for OWI in Iowa, ​contact David A. Cmelik Law PLC at 319-389-1889.