My how times have changed. Back when I was a kid, I remember constantly being warned that marijuana was a very dangerous drug. My parents told it to me, and so did my teachers. As part of my anti-drug education in high school, I watched the movie Reefer Madness, and learned about the reported dangers that cannabis posed to those who might dare use it.

Today Reefer Madness is regarded as little more than a cult classic, beloved (by stoners and others) for its ridiculously campy acting. Its original intended message – that all marijuana use is bad – is presently regarded as out-of-date and misinformed. There is in fact growing recognition within the medical community that cannabis and drugs derived from it are useful in treating a wide range of diseases, conditions and symptoms. These include cancer and chemotherapy-related nausea, HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage causing spasticity, epilepsy, inflammatory bowel disease, neuropathies and Huntington’s disease. Today, 29 states and the District of Columbia have enacted medical marijuana laws, and surveys that show large numbers of Americans support the use of marijuana for medicinal purposes.

Not only are there laws on the books that permit people with various medical conditions to use certain forms of marijuana for medical purposes, there are also laws that protect them from being subjected to adverse action as a result. A recent case involving a taxicab driver is illustrative. In Taxi & Limousine Comm’n v. W.R., a driver’s TLC license was revoked after he tested positive for the ingestion of marijuana. The driver had been certified as a medical marijuana patient by the NYS Department of Health, and prescribed marijuana to treat severe debilitating pain cause by his diabetes and his neuropathies. In order to renew his license, the driver took a routine drug test, at which time he informed the TLC that he used medical marijuana. Not unexpectedly, the test detected marijuana in the driver’s system. Thereafter, the TLC took the position that the driver had “failed” the drug test, and thus was not fit to hold a TLC license. While the driver provided a doctor’s prescription, and while the TLC has a practice of reversing positive drug test results if a prescription is provided to its testing company and the company determines that taking the prescribed substance is compatible with the test results, the TLC held firm to its position.

On appeal to the Office of Administrative Trials and Hearings, a judge found the revocation was improper. The judge noted that the rule relied upon by the TLC permitted revocation of a license where the failed drug test was due to “illegal drug use.” The driver at issue, however, obtained the medical marijuana for which he tested positive legally, pursuant to state statute and regulations. The judge concluded that the TLC’s rule was inapplicable, and that by revoking the driver’s license, the TLC had violated New York’s Compassionate Care Act (which protects state-certified medical marijuana users from civil and criminal penalties), and the New York State Human Rights Law (which regards certified medical marijuana users as being disabled, and protects disabled persons against a wide range of discrimination and other adverse action).

Thus, medical marijuana users who happen to also hold TLC licenses can rest assured that the TLC cannot revoke their licenses simply because of a positive test result.

However… That’s not to say that FHV drivers who have been legally prescribed medication – be it medical marijuana or some other drug – can freely get behind the wheel and transport passengers without giving a second thought to their ability to safely operate a vehicle. Regardless of what’s in their system, and regardless of whether it was prescribed by a physician, drivers on medication must always remain vigilant as to their fitness to drive on a given day. This is true with any new medication one takes. All medications can cause side effects, and if those side effects interfere with one’s ability to drive safely, the consequences can be serious.

If use of marijuana impairs a driver’s ability to operate a motor vehicle, a certified medical marijuana user and FHV driver can still be charged with Driving While Ability Impaired by Drugs, or DWAI/Drugs. If convicted of this offense, the penalties are substantially equivalent to those of driving under the influence of alcohol and include fines, possible jail time and suspension of one’s driver’s license, which effectively puts any FHV driver out of business. That’s not the only thing drivers who use this drug need to worry about. An impaired driver is at increased risk of getting into an accident, and accidents as we all know, typically result in increased insurance premiums, not to mention lawsuits. Even if the medical marijuana user and FHV driver was not impaired at the time of the accident, and even if the accident was not his fault, if there’s a lawsuit the FHV driver can expect the other motorist’s attorneys to argue that the medical marijuana impaired the FHV driver’s judgment.

And then there’s no fault issues to consider. Fortunately for medical marijuana users, while New York’s insurance law (section 3216(d)(2)(K)) allows insurance companies to include within their policies an exclusion “for any loss sustained or contracted in consequence of the insured’s being intoxicated or under the influence of any narcotic,” the exclusion is inapplicable if the narcotic was “administered on the advice of a physician.”

In conclusion, medical marijuana prescribed by a physician offers the promise of relief to people suffering from a wide range of medical conditions, inclusive of FHV drivers. In New York (and in other states), these drivers are protected against being terminated, having their license revoked, etc. However, like any drug, drivers who use medical marijuana must be careful that the use does not compromise their ability to safely operate their vehicle. Where medical marijuana use impairs a driver’s ability to transport passengers safely, the driver risks possible DWAI/Drugs charges, customer complaints, causing an accident and a host of other problems.

Finally, even if impairment does not result, I have been informed that just like non-medical marijuana use (which by the way remains unlawful in most states), medical marijuana causes “the munchies,” so for those certified users watching their waistlines, this is yet another consideration that must be kept in mind.

Roberta C. Pike, Esq., Kenneth R. Tuch and Laurence I. Cohen, Esq. are partners with Pike, Tuch & Cohen, LLP, with offices located at 1921 Bellmore Avenue, Bellmore, New York 11710.  The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters, and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation.  You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.

Article by Roberta C. Pike

Roberta C. Pike is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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