April 13, 2010

Can You Have a CDL and a Medical Marijuana Card

April 13, 2010

I was recently asked a question by my dad (Johnny Green Sr.) that I thought was blog worthy; can you get a medical marijuana card if you are a CDL driver? The answer is yes you can; if you want to eventually lose your CDL and/or your medical marijuana card. Confused? You should be! This is a very confusing area of medical marijuana policy. I will try to provide a thorough explanation, with references. I am not a CDL driver, so I apologize in advance if my ‘lingo’ is not correct. However, my father is a CDL driver, so I have a basic grasp on CDL drug testing requirements.

The main points to remember with CDL drug testing is that they are mandated by the feds (the feds don’t approve of medical marijuana), and that they are given before employement, randomly throughout employement, and after any accident. Before readers try the ‘I thought Obama issued a memo’ argument, realize that the Obama memo only protects against prosecution in federal courts, not against informal suspensions by an administrative agency. The rules governing Commercial Driver Licenses involve both the State and the Feds. Ever since the Commercial Motor Vehicle Safety Act of 1986, the feds have set the rules, and it is up to the States to carry them out. This means that the US Federal Motor Carrier Safety Administration is in charge of drug testing policies, which is why a medical marijuana card is virtually useless in the world of CDL driving.

The reason that I still say ‘yes you can,’ is because TECHNICALLY anyone who has a doctor’s approval can get a medical marijuana card in the 14 states that have medical marijuana programs. After you get the doctor to sign the form, the form is then sent to an overseeing State agency who determines if the application is valid (in Oregon, it is DHS for instance). When the agency checks to see if the form is ‘valid,’ all they are doing is making sure that the doctor is not a fraud — THAT’S IT! They do not have access to a database for every CDL driver in the state, and therefore, they do not check to see if there is any conflict (I personally know some of the staff at Oregon DHS). All the government agency is allowed to do (or has the resources to do) is check for physician fraud.

If the doctor checks out, then the card is issued. It is up to the patient to research how it will affect other areas of their life/employment; the State considers anything else ‘legal advice,’ which they are not allowed to give out (and for good reason; they don’t have any legal education!). So essentially, if you have a doctor’s note and the fee, they will give you a card; any problems that arise from there is the patient’s problem.

Here is a story that highlights how a card can be issued, even if it isn’t supposed to be; I personally know of dozens of convicted drug felons in Oregon that have medical marijuana cards, even though they are not supposed to have them. One of these people was pulled over by a police officer, and tried to use his medical marijuana card as a defense after the officer searched his vehicle and found two ounces of marijuana. The officer seemed OK with the situation at first, but once he ran my friend’s information and it came back showing previous drug felonies, he arrested my friend for possession of a controlled substance with intent to distribute (the ounces were in two separate bags).

My friend tried to fight it in court, claiming that the State issued him a card and therefore it was valid. However, the trial judge told him that just because you are issued a card, doesn’t mean that it can’t be voided after the fact. When you sign the form, you are stating that all the information is accurate, and that you have personally checked to see that it doesn’t conflict with anything in your life. This applies to CDL drivers too; you will get a medical card issued, but the second you are fired for a failed drug test and try to appeal it before an administrative law judge, you will find out that you might as well have never had a card to begin with.

Now also consider the fact that of the 14 states that allow medical marijuana use, only ONE (Rhode Island) has a provision in their medical marijuana laws that specifically protect employees from being fired for testing positive for marijuana. So regardless if you are a CDL driver, pizza delivery driver, or the guy taking out the garbage at the local fast food establishment, if you test positive for marijuana at any time, you can be fired by your employer; medical marijuana card or not. Of course, if you are one of the 561 medical marijuana patients in Rhode Island, you are covered! How many of them are registered CDL drivers is something I will have to research another day…

However, it’s not COMPLETELY POINTLESS to have a CDL and medical marijuana card simultaneously. The medical marijuana card still serves the purpose of allowing you to grow marijuana, possess marijuana, and even transport marijuana. The only time it would conflict with your CDL is if you consumed marijuana, and then failed a drug test as a result. When I was doing research for this article, I read dozens of blog posts from CDL drivers that ‘can pass a drug test no matter what (wink wink),’ and therefore they are not worried. When they are off work they are protected from the cops, and when they are at work they have taken the ‘necessary precautions’ in the event that a random drug test should arise. If you are crafty enough to be one of these CDL drivers, then getting a medical marijuana card is still worthwhile. However, if you are wanting to get a medical marijuana card, medicate freely, and expect your card to protect you come ‘wiz quiz’ time, I would recommend against it!

Photo by cafepress.com


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