How what’s happening in the rest of the Northern Hemisphere affects Kentuckians when it comes to Marijuana.

Since California became the first state to approve the use of cannabis for medical treatment in 1996, over 30 states (including the District of Columbia) have passed laws legalizing marijuana for medical purposes and/or recreational use by adults – that’s over 60% of the union.

With these more rational, humane policies have also come more complicated laws. Driving under the influence has always been one of the more complex areas of the law to begin with – there are no fewer than two dozen variations of the charge in Kentucky – and with the tide change regarding marijuana use in this country, it is likely to get even more complicated.

Marijuana DUI

Six (6) states now have per se laws regarding the amount of THC – also known as delta-9-tetrahydrocannibinol, the psychoactive component of marijuana – one may have in their system before presumed to be driving under the influence. These states, (Colorado, Montana, Nevada, North Dakota, Pennsylvania, and Washington state) make no presumption regarding impairment unless a scientifically reliable test (typically blood) indicates THC levels at or above a prescribed limit (5 ng/mL in Colorado, Montana and Washington). Although Kentucky does not set presumptive levels, statute does require the prosecution to prove actual impairment, meaning that there must be more than the mere presence of marijuana in one’s system before you can be convicted of driving under the influence. See KRS 189A.010(12)(a).

If you have been charged with marijuana DUI in Kentucky, you should contact an experienced DUI attorney before making any decisions regarding your case.

Kentucky Marijuana Legislation

To be sure, movement on both the medical and recreation fronts has been slow in the Commonwealth; however, this is an issue that, regardless of the amount of opposition to it, seems to always move in the direction of more sensible laws. Kentucky has proven to be no exception.

In 2011, Kentucky reduced the criminal penalties associated with simple marijuana possession (less than 8 ounces) from a year in jail to a maximum forty-five (45) days and a $250 fine. See KRS 218A.1422. Currently, under KRS 218A.1421(5), possession of eight (8) or more ounces of marijuana is prima facie evidence of intent to traffic; however, this presumption is rebuttable and can be challenged by evidence presented by your attorney.

In 2014, a bill was signed into law that allows Kentucky physicians to direct by “written order” the use of cannabidiol (“CBD”) oil to a very limited group of patients. While this measure fell short of the more meaningful protections afforded to patients and doctors in states with effective medical marijuana laws that remove criminal penalties for implementing THC in their treatment regimes, it was a start.

Last year, a bill to tax and regulate marijuana in Kentucky similarly to alcohol was introduced in the General Assembly, but failed to receive a hearing or vote on the floor.

This year, on August 24, 2018, state legislators presented their ideas for medical marijuana legislation to the Committee on Licensing, Occupations, and Administrative Regulations. Those associated with the bill have predicted it will pass in 2019. Read more here.

Canadian Legalization of Marijuana

On October 17, 2018, Canada legalized the adult recreational use of marijuana, becoming the first major world economy to do so (Uruguay did so in 2013).

Although it will take a little time for the economic benefits to be realized, the effect on those who have been previously convicted under Canada’s old marijuana laws looks to be immediate. Shortly after legalization went into effect, it was announced that there would either be an automatic pardon or expungement for Canadian citizens who had been convicted under the old laws.

I recently spoke with a Canadian attorney specializing in both criminal and immigration law as to what this might mean for American and Canadian citizens with marijuana convictions when crossing the border. Suffice it to say that while the practical application of the new law on both sides of the border remains to be seen (and will always depend to some degree on the individual agent you come into contact with), it’s probably safe to assume that it’s going to be complicated.

It is important to keep in mind how expungement works. Basically, expungements clear a person’s record in the jurisdiction where they are filed. So, just as expungement of your Kentucky state criminal record does not automatically clear federal databases, nor does a clearing of your Canadian record take you off of international criminal databases, including the United States’. In short, the United States is not bound by the laws of Canada in this regard, and vice versa.

Let’s look at this in context.

Currently, a DUI conviction can impact both American’s and Canadian’s ability to cross the border freely. Even a reckless driving conviction could impact an American’s ability to enter Canada as it is considered a “serious offense” in that country. As marijuana possession is no longer an offense of any kind in Canada, the Canadian amnesty on marijuana convictions, while intended to directly impact Canadian citizens, may also indirectly impact Americans convicted of marijuana possession.

How so?

Well, it’s probably going to depend on when you were convicted of marijuana possession if you are an American wanting to visit Canada. If you are an American convicted of marijuana possession in the U.S. the week before Canada’s new law took effect, then you would have been convicted of a crime that was still considered a serious offense in Canada at the time. However, if you are an American convicted of marijuana possession in the U.S. the week after Canada’s new law took effect, now you have been convicted of a crime that Canada no longer considers to be a serious offense. This simple distinction could make all the difference when it comes to crossing the border without incident, meaning that the timing of your marijuana conviction here in the States may very well dictate the ease, or difficulty, of your movement across the Canadian border.

I said it earlier and it bears repeating – these laws are complicated. If you have been charged with or convicted of DUI, marijuana possession, or any crime (including serious traffic violations), it is best to enlist the assistance of a criminal defense attorney to help you navigate a path across the border. Not knowing the law and being turned away at a checkpoint can negatively impact your ability to cross in the future.

Nathan Miller, Attorney at LawAUTHOR NATHAN MILLER
Nathan Miller is a Louisville Criminal Defense Attorney and has been practicing law in Kentucky for over 15 years. Mr. Miller spent three years on Capitol Hill in Washington D.C. crafting controlled substance and DUI legislation at the local, state and federal levels. He is also a certified practitioner of Standardized Field Sobriety Testing and has attended the National Forensic College.

189A.010 Operating motor vehicle with alcohol concentration of or above 0.08, or of or above 0.02 for persons under age twenty-one, or while under the influence of alcohol, a controlled substance, or other substance which impairs driving ability prohibited — Admissibility of alcohol concentration test results — Presumptions — Penalties — Aggravating circumstances.

  1. A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
    1. Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
    2. While under the influence of alcohol;
    3. While under the influence of any other substance or combination of substances which impairs one’s driving ability;
    4. While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
    5. While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
    6. Having an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle, if the person is under the age of twenty-one (21).
  2. With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person’s blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (f) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (e) of this section.
  3. In any prosecution for a violation of subsection (1)(b) or (e) of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant’s blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions:
    1. If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed
      that the defendant was not under the influence of alcohol; and
    2. If there was an alcohol concentration of 0.05 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.

The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol or other substances, in any prosecution for a violation of subsection (1)(b) or (e) of this section.

  1. Except as provided in paragraph (b) of this subsection, the fact that any person charged with violation of subsection (1) of this section is legally entitled to use any substance, including alcohol, shall not constitute a defense against any charge of violation of subsection (1) of this section.
  2. A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the
    course of his or her professional practice.

218A.1421 Trafficking in marijuana — Penalties.

  1. A person is guilty of trafficking in marijuana when he knowingly and unlawfully traffics in marijuana.
  2. Trafficking in less than eight (8) ounces of marijuana is:
    1. For a first offense a Class A misdemeanor.
    2. For a second or subsequent offense a Class D felony.
  3. Trafficking in eight (8) or more ounces but less than five (5) pounds of marijuana is:
    1. For a first offense a Class D felony.
    2. For a second or subsequent offense a Class C felony.
  4. Trafficking in five (5) or more pounds of marijuana is:
    1. For a first offense a Class C felony.
    2. For a second or subsequent offense a Class B felony.
  5. The unlawful possession by any person of eight (8) or more ounces of marijuana shall be prima facie evidence that the person possessed the marijuana with the intent to sell or transfer it.

218A.1422 Possession of marijuana — Penalty — Maximum term of incarceration.

  1. A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana.
  2. Possession of marijuana is a Class B misdemeanor, except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no greater than forty-five (45) days.