Can a Felon Get a Medical Card in West Virginia?
Medical cannabis became legal in West Virginia back in 2017 when they passed Senate Bill 386. It should be noted that while cannabis for medicinal purposes is allowed, there are still no provisions for recreational use. When asking yourself whether those with a felony record can use medical marijuana in West Virginia, the answer will probably be yes.
The Direct Answer: Patients Are Not Automatically Disqualified
The West Virginia Office of Medical Cannabis (OMC) operates the program through WV Code §16A-4-1. There are no statutes prohibiting a person with a felony conviction from enrolling in the program as a patient. Background checks are required for caregivers and may also be required for patients who have a history of drug trafficking and violent felonies, according to WV Code §16A-5-1. You should seek legal advice first if your history includes such matters.
The Caregiver Rule: A Five-Year Felony Bar
The requirements for caregivers in West Virginia are quite precise and more lenient than those in many other states in this study. According to WV Code § 16A-5-2, the caregivers will be required to provide fingerprint information for their background check, which will then be submitted by the West Virginia State Police to the FBI. The FBI must deny the caregiver status to applicants who have been convicted in the previous five years for committing crimes related to the felony sale or possession of drugs, narcotics, or controlled substances, or conspiracy thereof.
The requirement is for a period of five years only and not for life; hence, an applicant who has a drug-related conviction, but it happened more than five years ago, can still apply for caregiver status in accordance with West Virginia law.
The bureau may, however, use discretion in rejecting an application if the person has previously abused drugs or engaged in any diversion of the controlled substance, even outside the five-year mandatory period.
Caregivers should be 18 years old and residents of West Virginia. Caregiver assistance can only be extended to five patients, with each patient choosing two caregivers.
Cannabis Industry Employment: A Waiver Option Exists
According to WV Code § 16A-6-3 and § 16A-6-12, a person owning or working for an entity engaged in the lawful activity of cannabis cannot have a felony drug conviction. The unique feature of West Virginia is that there is a provision for such persons to seek a waiver from the bureau. This is something that is not found within this list, making it unique, as there is indeed hope after a drug felony conviction.
Eligibility Requirements for a West Virginia Medical Card
Every patient candidate has to fulfill the following requirements:
- Age: 18 or above (children below 18 can apply for a license, provided there is consent from their parents, who will act as the caregivers)
- Residency: Applicants need to prove that they are legal residents of West Virginia
- Qualifying Disease/Condition: Candidates should have a disease listed among the approved diseases on the list confirmed by a licensed physician.
- Practitioner-Patient Relationship: There should be a practitioner-patient relationship between the certifying physician and the patient seeking approval.
West Virginia currently lists 15 conditions and does not allow physicians to certify other conditions. Qualifying conditions include chronic pain, cancer, PTSD, HIV/AIDS, epilepsy, multiple sclerosis, Parkinson's disease, Crohn's disease, ALS, sickle cell anemia, terminal disease, and severe nausea and vomiting.
Important Product Restrictions in West Virginia
According to WV Code § 16A-3-2, medical cannabis can only be administered in the form of pills, oils, tinctures, topical applications, liquids, or vaporizing and nebulizing devices. Cannabis smoking and consumption of dry leaves/flowers is not permitted. Legislation intended to modify this provision has been unsuccessful. Any excess cannabis needs to be stored in its original dispensing container.
No Employment Protections and No Home Cultivation
Two further limitations make the state of West Virginia's program less flexible than those of other states:
- Employment protection: West Virginia fails to offer employment protection to medical marijuana users. The employees are subjected to drug testing, dismissal, and discrimination despite the card.
- Homegrown cultivation: The residents of the state of West Virginia are not allowed to cultivate the medicine at their homes. The residents are obliged to purchase cannabis from a registered dispensary.
Legal Considerations for Felons
Federal Law
Marijuana is still a Schedule I controlled substance at the federal level. For felons:
- Federal probation/parole: Using marijuana would likely violate federal probation or parole requirements, regardless of a state card.
- Federal housing: HUD and federally assisted housing policies concerning cannabis use are still relevant.
- Federal employment: Agencies and contractors working with the government will have their own drug-free workplace policies independent of state law.
State Probation
Conditions of West Virginia state probation typically mandate that one stay drug-free. The medical card is not an exemption from these probation conditions. It is important to check with your lawyer or probation officer before applying for the card.
How to Get a Medical Marijuana Card in West Virginia
Step 1 - Confirm your qualifying condition
Review the 15 approved conditions and verify your diagnosis qualifies under WV Code § 16A.
Step 2 - See a registered physician via telehealth or in person
Only those doctors who have been certified by the OMC and are part of the training program can certify the patients. Telemedicine certification services are fully operational. Doctors fill out the Patient Certification Form and submit it to the OMC.
Step 3 - Register as a patient through the OMC portal
Register yourself as a patient on the website of the West Virginia Office of Medical Cannabis, provide your certification from a doctor there, and send an application with your West Virginia ID.
Step 4 - Pay the fee and receive your card
The normal fee for a patient card is $50, which is renewed yearly. Fee waivers are provided for patients under Medicaid and other low-income patients by the OMC. After getting approval, you have a card that lasts for one year. You can present it anywhere in the 65 dispensaries throughout the state.
Typical physician fee: $75-$149.
Bottom Line
West Virginia does not have a complete felony ban. The caregiver disqualification rule applies within a look-back period of five years, less extensive than the lifetime prohibitions that exist in places like New Jersey and Vermont. No other industry provides such an option for waiving prohibition based on prior convictions. No smoking, no flowers, no cultivation at home, and a lack of employee protection rights make it one of the more restrictive programs in existence. Federal oversight and conditions of probation are still applicable.
Frequently Asked Questions (FAQs)
Does West Virginia check criminal records when you apply for a medical marijuana patient card?
For patients, the application process depends on the medical condition and certification by a doctor. Nevertheless, under WV Code §16A-5-1, the bureau has some discretion when looking at the criminal history of the applicant. Caregivers undergo a mandatory FBI fingerprint-based background check. In case you have a significant felony in the area of drug trafficking or violence, contact an attorney from West Virginia.
How far back does West Virginia's caregiver felony disqualification go?
According to WV Code § 16A-5-2, the mandatory disqualification for felony convictions involving drugs applies only for the last five years. That means that it is a temporary exclusion based on the time limit of five years. A disqualification is not permanent and does not apply to felony convictions that occurred before five years ago.
Can a felon work at or own a cannabis business in West Virginia?
Without exception. Under WV law, owners and employees cannot hold a felony drug conviction. However, unlike other states, West Virginia provides the option for applicants with a bad record in terms of drug-related convictions to obtain a waiver from the bureau.
Can I smoke or use cannabis flower with my West Virginia medical card?
No. In West Virginia, smoking cannabis and distributing dry leaf or flower is illegal. Medical patients can only use cannabis via medicines, oils, tinctures, topicals, liquids, dermal patches, and certain vaporization and nebulization devices. There have been unsuccessful legislative attempts to amend that prohibition.
Can I use my West Virginia medical card while on probation?
This will depend on your probationary terms. Most state probation programs have drug-free requirements, and the medical card cannot supersede them. The federal probation system will most likely prohibit cannabis use according to federal law. You should always talk to your attorney or probation officer before consuming medical marijuana.
How much does a West Virginia medical marijuana card cost, and how long is it valid?
The typical cost of a medical card is $50 with an annual renewal. Medicaid recipients can get fee waivers, and the same applies to those who prove financial need through the OMC. Physician telehealth certifications usually cost between $75 to $149 each.