COLUMBUS — Ohio’s law legalizing marijuana for medical use is about to take effect, potentially putting some would-be patients in a kind of legal limbo during the up to two years it will take for the state to put its tightly regulated program in place.

Beginning Thursday, those suffering from one of nearly two dozen diseases and conditions spelled out in the law could assert an “affirmative defense” to a judge if they are charged in the meantime with possession or use of pot.

It will be up to that judge whether he buys that argument.

But where would patients find their cannabis in a form allowed under the law if the state doesn’t yet have a single licensed dispensary selling it and patients aren’t allowed to grow their own?

And will a doctor write the recommendation a patient needs for that defense while clear rules are a year away?

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“Doctors need to certify a letter for patients to use the affirmative defense,” said Aaron Marshall, spokesman for Ohioans for Medical Marijuana. “Given the fact that there’s no direction for them and very little information provided for physicians, our fear is there are not going to be many that have that letter after Sept. 8.”

The state Department of Commerce, Ohio Pharmacy Board, and Ohio Medical Board must still write the rules under which patients, doctors, growing facilities, testing laboratories, processors, and retail dispensaries would operate.

It could be as long as two years before the government-regulated infrastructure to operate the program is fully operating. The Ohio Controlling Board recently approved $1.8 million to help Commerce and the pharmacy board in their tasks.

The Ohio State Medical Board is advising its members to do nothing until the state clarifies the situation.

“At OSMA, we really want to be a resource for physicians for training and education about the law itself,” said Reggie Fields, OSMA spokesman. “Until we get some clarifying information on some of these gray areas, it is hard for us to be able to do that.

“We have not put out a formal statement, but if [doctors] ask, we tell them to hold off at least for now until we get more information on exactly what they can or cannot do,” he said.

Ohio has established a web site, medicalmarijuana.ohio.gov, to provide updates on its progress.

“We’re building a whole new industry from the bottom up,” said Rep. Kirk Schuring (R., Canton), who helped shepherd House Bill 523 through the House. “A lot of rules have to be promulgated, which will take a significant amount of time.

“But that said, we could be fully operational in less than two years,” he said. “... We saw in committee that there are some people who really need this type of alternative medication. We put [the affirmative defense] in there to get them some ability to use, but not in a way that would violate the principles on which we constructed the law.”

The affirmative defense would apply only if patients, armed with written recommendations from their doctors, buy and use marijuana in the forms specifically allowed under Ohio’s law — oil, edible, patch, tincture, plant matter, or vapor.

The affirmative defense window will remain open until 60 days after the pharmacy board begins accepting applications for would-be patients for registration cards under Ohio’s program. Once that window closes, medical cannabis could be purchased only through the state-regulated system.

“It does start off rather loosely defined,” said Sen. David Burke (R., Marysville), whose district stretches north to Sandusky Bay.

“But you cannot walk about with raw plant,” he said. “You cannot smoke. You cannot grow marijuana. There are certain things you just can’t do under the bill. Even vaporizing could be very dangerous activity because the device has to be approved as well. Vaporization is not combustion. You cannot smoke or burn marijuana.”

Mr. Burke said lawmakers aren’t overly concerned that people will go to the dealer at the end of the street to buy their medicinal pot.

“Drug dealers aren’t generally handling pills,” he said.

A pharmacist, Mr. Burke helped to write the law, but he is not a fan of medical marijuana. 

He was more concerned that, in the absence of a legislative action, an outside group like Ohioans for Medical Marijuana would succeed in etching an amendment in the Ohio Constitution that could not be easily adjusted over time.

As for doctors’ reluctance, Mr. Burke said it’s not illegal now for doctors to write a letter saying a patient might benefit from medical pot. It’s not a prescription.

As lawmakers debated last spring, they pointed to other medical marijuana states like neighboring Michigan and Pennsylvania as possible legal sources for Ohioans who choose not to wait for their state to set up its infrastructure.

But Michigan, where voters approved a ballot initiative in 2008, specifically prohibits that.

“Only Michigan residents qualify for a patient-registry card, and a patient can only obtain marijuana from a caregiver that he or she is connected to through the registry process,” Michael Loepp, spokesman for the Michigan Department of Licensing and Regulatory Affairs, wrote in an email.

“When patients submit an application, they include a copy of a valid [Michigan] driver’s license, identification card, or voter registration as proof of [Michigan] residency,” he wrote.

Pennsylvania, the only other Ohio neighbor to legalize medical cannabis, passed its law shortly before Ohio and is not expected to have its program fully running until 2018. 

Pennsylvania’s program includes a “Safe Harbor” provision that protects a patient from prosecution if he obtains pot from another state, territory, or country in the meantime.

Last month 53 applications in Pennsylvania were approved for Safe Harbor letters and more were being processed.

Ohio’s law includes a provision requiring the state pharmacy board to try to negotiate reciprocity agreements with other states with similar laws. Under such agreements, Ohio would recognize physician recommendations issued in other states in exchange for those states recognizing Ohio’s.

But any reciprocity agreement is still at least a year away.

“[The law] requires us to look at our program compared to other programs, so that requires the rules to be finalized before we can look at that,” said pharmacy board spokesman Cameron McNamee.

Pennsylvania’s law does not provide for reciprocity agreements. Michigan provides some legal protection for someone with a registration card from another state who uses pot while visiting Michigan.

“This provision protects visiting qualifying patients from arrest, but it does not allow them to purchase marijuana in Michigan,” Mr. Loepp wrote.

So where would Ohio patients buy their cannabis?

“Where they are getting it right now,” said Mr. Marshall of Ohioans for Medical Marijuana. “The reality is that people are already using medical marijuana in Ohio. They’re just doing so illegally. Because no state system is going to be up and running for 12 to 18 months, people will have to get marijuana wherever they’re getting it illegally. It’s still a federal crime to transport marijuana from one state to another.”

Mr. Schuring noted that Ohio downgraded the offense of possessing small amounts of marijuana to a minor misdemeanor in 1973.

“And it stipulates that if you are guilty and you have a minor misdemeanor, it cannot be used as criminal background for employment purposes,” he said.

Barry W. Wilford, a Columbus criminal defense attorney and public policy director of the Ohio Association of Criminal Defense Lawyers, noted that the affirmative defense can’t be used until after the patient is already in trouble.

“The fact is that someone could be abiding by the law in what they are doing, is stopped, is arrested, and would then have to prove to a judge or a jury by the preponderance of the evidence that they did all these things and didn’t violate the law,” he said.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.

First Published September 4, 2016, 4:00 a.m.