Despite Kentucky's New Medical Weed Law, Users Still May Get Charged with Possession

click to enlarge

Photo: Pexels, Nataliya Vaitkevich

In November, Kentucky Gov. Andy Beshear issued an executive order to effectively legalize medical marijuana for Kentuckians diagnosed with 21 “severe” medical conditions, ending the Commonwealth’s longstanding total prohibition of the drug.

When Kentucky Gov. Andy Beshear announced his executive order granting preemptive pardons for possession of marijuana for patients suffering from certain medical conditions, he said the move would allow people “to get the help they need without living in fear of being charged with a misdemeanor.”

Well, that might not be the case in the Commonwealth’s largest city, Louisville. 

According to a memorandum obtained under Kentucky’s open records law, Louisville Metro Police Department officers were told that even if a person obtained marijuana in line with the parameters set out by the governor’s order, officers can still charge them with possession of marijuana and use the presence of marijuana as probable cause to conduct a search of the person or property.

“The Governor’s Order does not prohibit enforcement of Kentucky Revised Statute (KRS) 218A.1422, Possession of Marijuana (POM),” wrote Deputy Chief of Police Paul Humphrey in the memorandum, which was issued on Jan. 24, more than three weeks after the executive order went into effect. 

Humphrey then added that the executive order “does allow for a pardon after conviction” so long as the marijuana was legally purchased in another state, the person has a receipt, the amount is less than eight ounces and the person has a “'written certification' from a medical provider” that they have one of 21 qualifying conditions.

“Therefore, you are not prohibited from charging someone with POM,” Humphrey wrote.

For Louisville, at least, the memorandum confirmed what cannabis reform advocates have long feared since the executive order went into effect on Jan. 1: that decisions to charge somebody who has obtained marijuana in line with the executive order will likely be up to individual law enforcement officers in the Commonwealth.

“It’s expected. Cannabis is still illegal. That never changed,” said Matthew Bratcher, executive director of the Kentucky chapter of the National Organization for the Reform of Marijuana Laws. “People just have to be careful if they’re going to try to take advantage of the executive order and be prepared that, if they get arrested, they might be convicted.”

After issuing the executive order, the Beshear administration created and distributed “palm cards” to guide law enforcement officers on whether cannabis in a citizen’s possession satisfied the order. However, marijuana remains illegal on the books in Kentucky, with possession of up to eight ounces a misdemeanor offense punishable by up to 45 days in jail. 

Despite informing officers that they could charge people who have followed the executive order, Humphrey, LMPD’s deputy chief, pointed out that as a result of a 2019 Metro Council ordinance, possession of marijuana is the “lowest enforcement priority for LMPD” and that citations for only possession of marijuana are “highly discouraged.”

Still, he added: “Nothing in the Governor’s order, the [Metro Council ordinance], nor [LMPD policy] precludes an officer from using the discovery of marijuana during an investigation as probable cause for a search.”

This means if you are pulled over by LMPD, then inform the officer that you have marijuana purchased in line with the governor’s executive order in your vehicle, that officer could then potentially remove you from your vehicle and search your car and person for any other contraband. 

In recent years, charges for small amounts of marijuana have grown increasingly rare in Louisville following the 2019 Metro Council ordinance and an announcement that same year by Jefferson County Attorney Mike O’Connell that his office would no longer prosecute possession of marijuana charges in cases where less than an ounce is involved, possession is the only or most serious offense and the person is over 21.

However, charges still do occur at times. And if there is an additional charge that can be levied against the person, the possession charge can stick or even be exacerbated.

For instance, despite the de facto decriminalization in Jefferson County, if a person has a legal firearm alongside a small amount of marijuana, they can automatically be charged with a felony possession charge.

Responding to a LEO Weekly request for comment on Friday, Feb. 17, an LMPD spokesperson said they would let the memorandum “speak for itself.” The spokesperson said they were checking on whether LMPD had distributed “palm cards” to officers, but had yet to get back to LEO by the time of publication.