Nebraska Approves Medical Marijuana, but Legal Challenges Remain
On November 5, the citizens of Nebraska voted to legalize the use and possession of marijuana for medical purposes by adults, potentially making it the 38th state to do so. However, the approved initiative is now under fire from state officials, and it is unclear when or if marijuana will be legal as a prescription drug in the near future. The initiatives are currently on track to be certified, but whether they will be upheld are another matter.
The ballot initiative, if successful, would allow patients 18 and older to obtain a prescription from a qualified healthcare professional. Patients 18 and younger must also have written consent from a parent or guardian. The limit for marijuana possession is up to five ounces.
This statute would only affect those with a valid medical prescription. The current guidelines for marijuana possession (without a medical prescription) under Nebraska Statutes 28.416 still stand:
- As less than one ounce – Infraction and a $300 fine
- As between one ounce and one pound – Class III Misdemeanor
- As more than one pound – Class IV felony
This measure would also unlikely to affect existing employment prohibitions against marijuana, as the Americans with Disabilities Act does not include marijuana as a reasonable accommodation. Employers with drug-free policies would still be able to fire workers for using marijuana, even if it is medical in nature.
However, employers may revise their policies in light of the new change, if it succeeds in court.
Marijuana Regulation Commission
Nebraska has also voted to approve a measure to establish the Nebraska Medical Cannabis Commission. This commission will be responsible for handling the regulation of medical marijuana, including imposing fines and penalizing those abusing the state’s new medical marijuana provisions, similar to the Cannabis Control Commission in Massachusetts or the Department of Cannabis Control in California.
The commission consists of five members, approved by the state legislature, who serve six-year terms.
In addition to establishing the commission, ballot measure 438 requires the repealing of all laws penalizing possession, distribution and manufacture of medical marijuana by private entities, adding a provision allowing the possession, distribution and manufacture of medical marijuana by certified parties.
The commission has until July 1, 2025 to adopt policies and criteria for applications to register for the ability to distribute, deliver and dispense cannabis for medical purposes. The commission has until October 1, 2025 to begin approving these registrations.
Though not yet established, the commission is quite powerful, as it has been provided exclusive jurisdiction over all private persons registered with the commission as a medical marijuana distributor, possessor, or manufacturer.
Not quite legal
Despite being approved, ballot measure 437 has no set start date, and ballot measure 438 has yet to be implemented. Currently, measure 437 is facing legal challenges from state officials across the board, including Nebraska Secretary of State Robert Evnen and John Kuehn, a former state senator and former State Board of Health member. The pair have sued, claiming that many of the signatures are fraudulent. The state Attorney General's office has described a record of malfeasance and notary fraud.
If measure 437 survives the next few months, the state will need to codify the measure into law and establish the commission approved via measure 438. While many have speculated on Dec. 2, the deadline to certify the 2024 election, State AG Mike Hilgers has stated that deadline will not impact the investigation. Regardless of the AG's decision, the issue will likely be brought to the Nebraska Supreme Court.
Contact a Criminal Defense Attorney for Marijuana Crimes in Omaha, Nebraska
At Liberty Law Group, we consider anyone who has been arrested for marijuana to be a victim of prohibition. Our team fights to protect the rights of marijuana consumers in Nebraska and beyond so the negative impact on their lives can be reduced to the absolute minimum.
Our firm proudly serves the communities of Omaha in Douglas County, Lincoln in Lancaster County, Papillion in Sarpy County, Nebraska and Council Bluffs in Pattawattamie County, Iowa and surrounding areas.
If you or a loved one has been arrested or charged with a marijuana-related offenses, please call our firm immediately at (402) 865-0501 to request a free consultation to discuss your case with an attorney. We are standing by and ready to help with your defense.
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