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Utah lawyers to encounter challenges in state’s new marijuana statutes

April 5, 2014

Governor Gary Herbert recently approved a law for some families to obtain a marijuana extract they believe will help with their children’s seizures. While this isn’t legalization or even decriminalization of personal use of marijuana in any way, it is somewhat a reflection of the national changes in outlook and opinion toward the Cannabis plant and its uses, even in a Republican stronghold like Utah. And because the law that Gov. Herbert signed doesn’tlegalize or decriminalize, the families being “allowed” to obtain the extract still face the task of “navigating a thorny set of state and federal laws.” Utah lawyers may—or may not—be able to legally advise these families as they secure the medications currently understood to be potentially life-saving.

The new law doesn’t allow medical marijuana production in Utah by a longshot—it allows families meeting certain restrictions to obtain the extract from other states, an extract designed not to produce a high but to, which many believe, help with severe forms of epilepsy. The first problem Utah lawyers representing these families would encounter is in places where the extract is available, like that neighboring pot-happy state Colorado. Restrictions passed in Colorado aimed at appeasing the federal government make it exceptionally difficult for out-of-state residents to obtain any marijuana-derived products. When the state laws are, well, federally illegal, it makes sense to pass restrictions about availability to limit liability.

Many of these Utah families are saying they are willing to take that risk—faced with debilitating illness in their children, legal risks may seem minimal in comparison to everyday suffering, especially with a promise of alleviation of symptoms one state over. But their Utah lawyers would probably want to tell these families that Utah’s law may not protect them from the DEA if federal prosecutors step in, and that may be a bigger deal to some than others.

The law is on trial, too. Taking effect on July 1 of this year, it expires in 2016, and its allowance is restricted to those with severe epilepsy who don’t get relief from regular treatments. It requires a neurologist’s consent to obtain and use the extract. But even if it were legal to obtain from Colorado, there’s another hurdle: there is a waitlist of about 2,000 families for the product. Moreover, everyone on the waitlist is required to meet Colorado residency requirements, such as establishing an address and becoming a registered patient of a local physician in order to obtain the product under the state’s medical marijuana laws.

This is, of course, assuming that Utah lawyers would advise clients on the matter at all. It’s only been recently in Nevada that the State Bar is willing to allow attorneys to advise clients—like local and state government entities—on medical marijuana laws. Previously it has been considered unethical to do so, and attorneys could have been disbarred for providing legal counsel on the matter. What will Utah lawyers do as laws continue to change?  Whether attorneys are willing to take this risk for these families is dubious, but it is assumed that the guidelines for lawyers change with the times, as they did next door in Nevada.

 

 

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