Sean Moss, 34, is facing misdemeanor charges of driving with a controlled substance in his body, possession of a controlled substance, possession of drug paraphernalia, and failure to stay in a lane. But Moss said he is a qualifying medical cannabis patient.
"I am an epileptic," he said in an interview with FOX 13.
Moss is planning to use that as a defense when he goes on trial on Monday in Salt Lake City Justice Court. He is facing charges in connection with an accident he was involved in on SR-201 near Bangerter Highway in August 2017.
"Driving down the street, I could feel the seizure coming on and I tried to pull over, I wound up pulling into a fence on the side of the road," Moss said. "I was arrested instead of taken to the hospital."
Moss said the Salt Lake County Jail refused to book him and sent him to the hospital instead. But even though the accident didn't involve anyone else, he was facing criminal charges because cannabis was found in his vehicle.
"While he was impaired to operate the vehicle, he wasn’t impaired by a controlled substance. He was impaired by his epilepsy," said Moss' defense attorney, Tyler Ayres.
Ayres is planning to use an affirmative defense at trial, something allowed under both Proposition 2 and the law passed by the legislature that replaces it. It allows qualifying medical cannabis patients to say their personal quantity of marijuana is medically necessary (and now legal).
Moss claims he was legally allowed to use it in 2017, too. He said under "Charlee's Law," that the legislature passed for epilepsy patients, he had a card given to him by the state.
"As Sean sits here today, he’s a medical candidate, he has a medical directive," said Ayres.
Moss is unable to procure a letter from a doctor under the new medical cannabis law. Both Intermountain Healthcare and University of Utah Health Care have instructed their physicians not to write them until they get more clarity under the law. That has angered medical cannabis advocates, who have feared prosecutors would still pursue charges against patients.
"These cases of continuing to crucify medical patients with cannabis is unacceptable," said DJ Schanz, who was a sponsor of the original Prop. 2 and negotiated with opponents on the replacement bill the legislature passed.
Schanz said he knows of several instances across Utah where medical cannabis patients are now being prosecuted under anti-marijuana laws. He said without those letters, patients are in limbo until the state sets up a working medical cannabis program.
"There does need to be a little bit of flexibility on the part of prosecutors and law enforcement in this period of limbo," he said.
After FOX 13 contacted the Salt Lake County District Attorney's Office to inquire about Moss' case, a motion was filed to continue Monday's trial. Prosecutors also filed a motion to compel evidence about Moss' medical cannabis claims.
Salt Lake County District Attorney Sim Gill said that in 2017 (when the accident occurred) you could legally have CBD but not anything with an active THC content.
"A medical cannabis card doesn’t get you out of jail free card for the purposes of DUI," he said. "It’s not a commentary about their medical condition, it’s a commentary on impairment. Nothing in the old law or new law absolves a person from responsibility of impairment."
Gill was a staunch supporter of Proposition 2 and said he wanted to review Moss' case.
"I’m a huge supporter of medical cannabis and I’m a huge supporter of patients rights," he told FOX 13. "But just like other prescriptions, you cannot use a medical cannabis card as a justification to drive impaired."
Moss said he is prepared to go to trial, where he faces a potential jail sentence and fines.
"While I don’t want to be prosecuted, I almost consider it an honor to help other patients be able to free themselves from further prosecution and help set the statute for Utah patients to medicate," he said.