Justice and Due Process

Utah Judge Not Following New Medical Cannabis Law

Earlier this week, we held a press conference (live video here) regarding a judge punishing a mother for having THC in her urine, despite that mother being a legal medical cannabis patient and only using a CBD product.

Below are select statements from recent court hearings for this mother pertaining to THC, with our commentary to give context to how this judge is not following the law.

April 8, 2019

Transcript Commentary
Audio 1:
DCFS attorney: “[We have] reports from the oil study, our own toxicologist, from everyone, that there should not be THC in here. The fact is that the law at this time does not allow for prescriptions of THC. It speaks for itself. We’re just concerned, given everything else that is going on in the case, how this may be affecting things.”

Judge: “Even if the law did provide for prescriptions, we don’t have any prescriptions that have been presented.”

DCFS: “The court makes a point. The law does not allow prescriptions, at least at this time.” 

Judge: “And not for THC. Maybe for [CBD] oil.”
Judge Bartholomew and DCFS’ assistant attorney general claim to have been informed that CBD oil, which Emily was taking, would not have THC in it.

This is not correct. The legal definition of CBD oil is that it contains less than .3% of THC — not that it contains zero THC. Someone consuming enough CBD can fail a drug test by having THC show up.

Also keep in mind that these individuals don’t understand the concept of medical cannabis recommendations, and are using that word interchangeably for prescriptions in saying that they aren’t yet legally allowed. They don’t understand that recommendations are currently allowed.
Audio 2:
Judge Bartholomew: “This isn’t a prescription… Even if it was, medical cannabis doesn’t include THC. I’m not accusing you of this, but if you were to be using marijuana on your own, that wouldn’t be appropriate. It’s not appropriate to self-medicate. If you do use medical cannabis, that’s great. But I need to have a prescription and an indication that you’re getting it from a proper medical dispensary instead of getting it off the street if that’s what you’re doing.”
The Judge believes that “medical cannabis” is only CBD and zero THC. This is not accurate at all, nor is it possible to have an actual prescription for THC or medical cannabis given its Schedule I status.
Audio 3:
Judge: “The medical cannabis would not show up for THC either…”
Again, the judge believes that “medical cannabis” contains no THC. 
Audio 4:
Bartholomew: “I do need everybody to be drug testing regularly… If I get a missed drug test, I have to presume that that’s going to be a positive… It’s critical so that I can know what’s going on.

“I could do an order to show cause, I think that would cause a little bit of stress. I’m not to that point yet. But if it continues after we have a chance of looking into the reasons for the positives… the next time you come back, if there… are positives, I will do an order to show cause.

“At that point, you being held in contempt of court is not a done deal… I’d have to give you a consequence.”
There are no claims that the Roberts children are being endangered, and yet for months Doug and Emily have had to undergo multiple drug tests each week in which they disrobe and expose their genitals to a stranger while urinating.

Emily wishes to use THC, and the law gives her that opportunity, yet she is deathly afraid to do so because she would fail a drug test and DCFS might try to remove her children, or the judge might order that outcome, despite no evidence that such use would in any way endanger her children.

May 6, 2019

Transcript Commentary
Audio 1:
Judge: “During the last hearing, I also asked… for alternative explanations for mother testing for THC.”

DCFS attorney: “There have been conversations with the toxicologist with TASC (Treatment Assessment Screening Center). If she’s only taking [CBD] oil, then there’s no reason why it would test positive for THC as a separate substance.
The Court is being informed by a toxicologist that CBD oil would not test positive for THC.

That toxicologist did not analyze the specific oil that Emily used (from the state-sanctioned CBD study).

Pure CBD has no THC, to be true, but “CBD oil” (which can legally have .3% THC) can have THC, and those using it can fail a drug test.
Audio 2:
DCFS attorney: “On April 18, [Emily] tested positive for THC.  She did file a note saying she has a legal prescription. My understanding is the law allowing for medicinal marijuana is not quite in effect, and that even in that circumstance these aren’t prescriptions. they are medical marijuana authorizations.
While Emily incorrectly framed her recommendation as a prescription at this time, the assistant Attorney General argued that the Utah Medical Cannabis Act is not yet in effect.

In fact, at the time, it was indeed in effect, and Emily’s recommendation gave her legal access.
Audio 3:
Judge: “If [Emily] is testing [positive] for THC, and she’s prescribed medical cannabis… she wouldn’t be coming up with THC levels.”

DCFS attorney: “That’s my understanding as well, and that’s our concern.” 
The judge once against asserts that “medical cannabis” contains no THC. The assistant Attorney General concurs with this incorrect position.
Audio 4:
Unknown party: “My understanding is that CBD oil will not test positive if all the THC has been removed, which it should be. Medical marijuana, it will show up positive. But there are no dispensaries in Utah, so I don’t know where she would obtain the medical marijuana at this time.”
CBD oil is not required to be free of THC. And patients are protected in possessing and using medical cannabis currently; the law is intentionally agnostic on where they procure it.
Audio 5:
Ms Gonzalez (Emily’s public defender): “Emily, are you claiming that the CBD oil did affect your positive [THC] test?”

Emily: “Correct, that’s the only thing I’ve taken… I’m not using [medical marijuana], I’m only using the CBD. When I started the study they told me ‘it shouldn’t show up with a UA, but it could.’”
Emily testifies that she was told by the CBD study manager that the CBD oil might trip her up on a potential future drug test.

Despite having a valid legal recommendation to use medical cannabis (with THC), Emily at this point was only using CBD oil despite wanting to use THC-rich cannabis.
Audio 6:
Emily: “The letter is a prescription to use cannabis. You can buy it from a street dealer if you want. I haven’t…”

Ms. Gonzales (Emily’s public defender): “No, you can’t.”

Judge: “No you cannot. I’m going to cut off this conversation, you can counsel your client outside.” 
The judge and others involved in the case have asserted that Emily could not use medical cannabis until dispensaries were operational in Utah. This is false.

While “street dealer” is a poor choice of words, patients throughout Utah are procuring their medicine from other Utahns directly right now.

June 17, 2019

Transcript Commentary
Audio 1:
Judge: “Why was your legislator invited to the team meeting when you have an attorney?”

Doug: “I had spoken to them regarding some clarification on HB3001…”

Judge: “The legislature makes the laws, the executive branch enforces the law, and the court system interprets the laws. Right now there’s no legal means of getting marijuana in Utah. And so THC isn’t being dispensed here in Utah. So it’s not legal to have it in your system. Do you understand that?” 
We asked Rep. Christine Watkins to get involved in this case; she is co-chair of the Child Welfare Legislative Task Force. She attended a team meeting for the Roberts family and the judge didn’t like that.

The judge continued to assert that because there are no dispensaries open yet, that it is illegal to have THC “in your system.” This is not at all what the law says.
Audio 2:
DCFS attorney: “We want people to have appropriate medication, but to follow the law in the process.”

Judge: “Even if marijuana was being dispensed, it would have to be dispensed through an appropriate pharmacy… by prescription by the doctor. An analogy would be if you were prescribed oxycodone. There’s nothing wrong with taking it if it’s prescribed by a physician. But if you’re taking it in a non-prescription dose, or taking too much, that’s dangerous. We’re trying to work with you, but you need to work within the law. CBD oil is okay, but the THC… is a concern.

DCFS attorney: “And that’s been a consistent concern. Again, we ask that people follow the limits. As the court said, there are no dispensaries in Utah. My understanding… is that medicinal marijuana may not be a prescription because it’s still illegal under federal law. Regardless, we just want people to be addressing it appropriately. So we ask that again, the law be followed, people not be taking illicit substances if it’s not in accordance with the law.” 
Emily was following the law. She was taking CBD oil from a state-sanctioned study only, and also had a medical cannabis recommendation, valid pursuant to the Utah Medical Cannabis Act, should she have wished to use THC-rich products.

The Court and the assistant Attorney General repeatedly claim that THC is in violation of the law because dispensaries don’t yet exist. This is not what the law says—which is awkward since they demand the law be followed.
Audio 3:
Judge: “I’m going to make it really simple. I’m just going to order both parents not to use marijuana. They can use cannabis oil, but they can’t use any elements with THC for the time being. I’ll set that order to show cause. And if you have THC keep coming up in your system, then you’ll have to bear consequences. When Utah has a way of dispensing medical marijuana, and doctors are prescribing it, not just writing a letter — this isn’t a prescription, maybe things will be different, but it’s not now.”

Doug’s public defender: “…if one or both parents provide a prescription from a licensed medical doctor, consistent with what the legislature and the governor passed… I take it that would be consistent with—”

Judge: “The parents can’t be getting the marijuana off the streets. They need to get it from a registered or proper source, and they need to take it in a dose prescribed by the doctor. CBD oil is fine. THC has hallucinogenic properties to it. CBD oil, I’ve heard it has very good pain… purposes. We’ve gotta do this in a proper way, this is a court of law.
The doctor continues to believe that CBD oil contains no THC, and that the law doesn’t allow medical cannabis to be used since there are no dispensaries.

He also claims that “this is a court of law” and that there is a “proper way” while being ignorant of, and unwilling to be corrected regarding, the “proper way” in the Utah Medical Cannabis Act, which is law.
Audio 4:
Emily’s new public defender: “Could they then go to California and get a doctor’s prescription there, purchase it as a licensed dispensary there and then bring it back here?”

Judge: “I don’t think the law permits that. We’re going to follow the law in this court.
The judge is saying that he is following the law while ignorant of what the law actually says. It’s extremely clear he is not educated about the law and is ruling based on what little he may have heard in the news or from others.
Audio 5:
Judge: “CBD oil does not have THC in it.

Emily: “It has traces. It comes from the same plant, just a different part of it.”

Judge: “CBD oil is the marijuana plant without the THC. They extract the THC from it… it’s not supposed to come up on drug tests… I’m setting the order to show cause, and she’ll need to show me why it comes up with THC… you need to show me that, everything I’ve heard goes against what you’re saying.” 

Emily: “I don’t know what you want me to show you (crying). I feel like you’re telling me not take the things that are helping the pain…
The judge has repeatedly demanded a prescription (which is not possible for medical cannabis), claimed that CBD oil doesn’t have THC (not true), and rejected her letter establishing her legal right to use medical cannabis because it wasn’t a “prescription.”

Emily, in severe pain, wants to use THC but is afraid of what the judge will do. The judge has been unwilling to hear anything contrary to his uninformed views.
Audio 6:
Judge: “You shouldn’t be using THC. It’s against the law right now.
This is completely false — and especially egregious coming from a judge who has repeatedly claimed to follow the law in his courtroom.
Audio 7:
Judge: “If THC keeps showing up on the records, DCFS may decide to remove your children.
Despite being in compliance with the Utah Medical Cannabis Act should she wish to use THC, but only taking CBD oil pursuant to a state-sanctioned study, Emily is being threatened with having her children legally kidnapped by the government for using the only medicine she feels will help her pain.

August 7, 2019

Transcript Commentary
Audio 1:
Guardian ad Litem: “Your honor my clients [the children] are doing really well, so I have nothing to add as to them. I know that there are some issues with the mistests and the positives for THC. I know the parents have, I believe the dad on his own filed some things to the court to dismiss drug testing. I would object to that. I know that marijuana or THC is going to become an issue for this court and for every juvenile court here in the state, and so… I have concerns with Dr. Cottam’s letter just because I don’t know if he qualifies to make that or give a prescription.”

Judge: “Well, I think we’ve addressed this before—there has been a letter but not really a prescription that has been presented.”

GAL: “Well there are certain ways you can and can’t take THC. My thing is they keep saying it’s CBD oil that is causing the THC positive and I can appreciate that but now all of the sudden the dad is filing about medical cannabis de-criminalization.” 

Judge: “Well I think it was the mother saying she was taking the CBD oil and that was causing problems and now it’s not.”

GAL: “So I have questions if it’s actually being prescribed or just recommended or if the doctor is aware of any kind of levels or the types of medication that is being prescribed to her. In his letter he talks about the CBD treatment but it doesn’t sound like he is the one prescribing it. So it’s just interesting that he would write a letter but not the person doing the study that she supposedly is in. So I have concerns with that on-going THC.”
Fueled by ignorance and despite the law being clear, the Guardian ad Litem wants the parents to continue disrobing and urinating in front of a stranger despite no claims of any harm to the children — in fact, the children “are doing really well.”

Dr. Cottam’s letter follows Utah law and provides the legal protections established by the Utah Medical Cannabis Act, but because the GAL “doesn’t know,” she “has concerns.” And the judge continues to disregard the letter entirely because it is not a traditional prescription.
Audio 2:
Judge: “This letter might be better if Dr. Cottam was here. He is making comments on a [CBD] study that he’s not overseeing. He says that there is a possibility that she might test [positive] for it [THC] but it would be a lot better if that information would come from the study itself, because he doesn’t have any direct knowledge of actually what’s in the oil. The other thing is, that this says this serves as my legal recommendation for Emily Roberts to us medical cannabis products. But what I need is the prescription, not a recommendation… because what I need is more information. Alcohol is a legal substance and certain prescribed medicines is legal but it can be abused. If you are getting your marijuana from an illegal source then that means it’s not prescribed or being used as its supposed to be your medical condition. It can’t be self-medication. That’s why I’m asking for a prescription, and if I can get a prescription then I’m okay with that”.

Emily: “I actually asked the doctor to give a prescription, to write it down on an RX pad…”

Judge: “I understand that. But I also need to know where you are getting your medical cannabis from. A prescription means how often you should use it, how you should use it, what amount you should use it. Just to give a blanket prescription isn’t sufficient for this court. I don’t have any problems with you using medical cannabis as prescribed by law. But I need to make sure that your use is not interfering with your parenting abilities and I have to have certain safeguards in place… If the testing continues [positive for THC] without the necessary prescriptions, I have to assume that you are getting the cannabis from illegal sources and using it illegally.” 
The law allows for self-medication; the law does not require dosing like a traditional prescription. The law allows for a recommendation which the judge entirely set aside and ignored.

Emily was “using medical cannabis as prescribed by law” contrary to the judge’s claim.

And the children’s representative in court said the children “are doing really well.” There has been zero claims of any problems as a result of the CBD oil use (and THC detection). Yet the judge continues to order drug tests, multiple times weekly for months, because he “needs to make sure” that the medicine use “is not interfering with [their] parenting abilities,” even though there’s not actual problem justifying this.

The judge is extremely wrong about THC detection meaning that she is obtaining and using it illegally.
Audio 3:
Judge: I don’t think it’s a large request [to show a prescription for marijuana use instead of a recommendation], I’ve requested it before and I’m giving you one last chance…

Emily: Your honor, I have given you everything you’ve asked. 

Judge: No, you haven’t. I’ve asked for a prescription and I need a prescription and… I need to know the quantity and how often its supposed to be used and I need to know where you’re getting your drugs from. I need to know this is on the up and up. I’m not picking on you particularly I’m just trying to follow the laws in the state of Utah and as long as you are following the laws in the state of Utah I’m okay. But I can’t be assured through that letter that there’s prescription…
The judge says he’s trying to follow the law while invalidating Emily’s legal doctor recommendation. He says he’s “okay” as long as Emily follows the law, but she is following the law and the Judge is not “okay.”

Libertas Institute has been working closely with the Utah Patients Coalition to support patients like Emily and provide them legal and financial support as they navigate the criminal justice system. Emily’s case is still active and we are hoping for a speedy resolution.