Regardless of where you stand on the issue, it's safe to say that the nation's attitudes toward cannabis use are changing. At least 17 states so far have legalized the use of recreational marijuana, with many more likely to follow suit in the years to come. Many other states currently allow marijuana for medicinal purposes only, and even in states where it's still illegal, the laws have been relaxed to the point that you most likely won't be charged with a crime if you possess it or use it.
But the ongoing legalization of cannabis has also created a lot of murky “gray areas” with other aspects of life—especially when it comes to licensed professionals. Take, for example, the growing number of doctors who have had their medical licenses suspended or revoked for using marijuana off-duty—even in states where recreational use is legal. In fact, licensed professionals from many professions are running into similar issues, partaking legally of cannabis on their own time only to find themselves in hot water with their respective licensing boards.
Perhaps you find yourself in this situation. Maybe you're a licensed physician, nurse, social worker, accountant, or insurance broker who thought you were within your rights to use a bit of marijuana on your day off, but now your license—and your livelihood—are in danger because of it. What can you expect to happen? What can you do to defend yourself and rescue your career?
Attorney Joseph D. Lento has extensive experience with professional license defense in New Jersey and New York. Also, having experience in criminal defense law, he has a keen understanding of how legal recreational drug use intersects with professional licensing. The Lento Law firm has compiled the following critical information to help you be informed and to know what to do to protect your career.
Why is there so much confusion and controversy regarding off-duty marijuana use for licensed professionals?
Much of the confusion surrounding this issue stems from the fact that the nation's relationship with marijuana is in transition—which means nothing is consistent right now. The laws are constantly changing at the state and local levels across the country, and the rules about marijuana use may even be different in one town than they are in another town a mile away! Here's a quick snapshot of the variables in play:
- In some states, marijuana is legal for recreational use. People over a certain age (usually 21) may possess it in limited amounts. They may or may not be allowed to use it in public, and landlords and employers may still have a say in whether it is allowed.
- In other states, marijuana is legal for medical use only. You may be given a medical license or permit to possess it in limited amounts to treat certain conditions (the list of ailments also varies from state to state), and you may have to obtain it at licensed dispensaries only.
- In some states, marijuana is still illegal but is “decriminalized.” In other words, it's still against the law to have it or use it, but it's a low-priority offense, so you won't be arrested unless you're suspected of trafficking it.
- In at least three states, marijuana is still fully illegal as of this writing.
- Cities and counties may have their own rules about marijuana. For example, the state may only allow medical marijuana, but if you live in a certain town, recreational use is either legal or decriminalized.
- Meanwhile, the federal government still classifies marijuana as a Schedule 1 drug. It's still a violation of federal law to possess, use, or sell in any capacity.
Now let's look at three examples of how the rules concerning marijuana use are different between states:
In New Jersey:
- As of Feb. 2021, the use of recreational marijuana is decriminalized. People over age 21 can possess it and use it on private property without penalty. There is, as of this publication, no legal way to purchase the drug for recreational use, but lawmakers and regulators are working quickly to remedy that.
- In New York: As of April 2021, recreational marijuana use is now legal.
Can you now understand some of the confusion? The rules are different wherever you go!
But here's what makes it even more confusing: Even in states where recreational marijuana is now legal, many (most) state licensing boards have not changed or adjusted their own rules about whether their licensed professionals can use it on their own time. Thus, for many licensed professionals—depending on the rules of their state and the terms of their license—marijuana use may still be considered “substance abuse,” even in states where it's now legal. So if you're a licensed professional who used marijuana off-duty in a state where it's legal to do so, your license could still be jeopardized if your board considers it a violation of the rules.
What are the risks to my professional license if I use recreational marijuana?
The risks depend on several factors, including the laws of your state, the type of profession you work in (e.g., medicine, counseling, law), and the standards of conduct set forth by the state board that issued your license. Generally speaking, we can break it down as follows:
- If you live in a state where recreational marijuana is illegal…you could certainly face disciplinary action (including losing your license) if you are arrested for marijuana use or possession. You may also face disciplinary action on the grounds of abusing a controlled substance, even if you do not face criminal charges.
- If you live in a state where recreational marijuana is legal or decriminalized…your primary risk is if the licensing board specifically prohibits marijuana abuse (or sometimes, generally, “substance abuse”). If you're reported for using marijuana, you could face suspension or revocation of your license or possibly mandatory treatment.
Can my professional license be legally suspended or revoked if I use marijuana off-duty in a state where it is legal? If so, why?
Yes, it can. Many licensed professionals nowadays have this question. After all, if you're using it on your own time and you're not going in to work for at least a day, why does the board care what you do on your own time?
There are several reasons why it could matter to the licensing board—and why it may be completely legal for them to suspend or revoke your license for it. These reasons may include the following:
- The licensing board hasn't adjusted its rules in accordance with changing marijuana laws. It may be okay with the District Attorney for you to use marijuana off-duty, but it's still prohibited behavior in the eyes of the Board of Medicine, the Board of Counseling Examiners, etc.
- Drug use of any kind may be a particularly sensitive issue for your chosen profession. For example, a doctor using recreational marijuana could have far worse optics than, say, a licensed general contractor—even if both are partaking outside of work.
- Marijuana use may signify a deeper substance abuse problem. Even if this isn't true, it may hurt your credibility with the licensing board.
- The lingering effects of marijuana are still not fully known. Cannabis can be detected in the blood for days after taking it. Even if you feel perfectly sober, in the eyes of the board, there's at least an outside chance it could still be affecting your professional judgment. There is also evidence that ongoing marijuana use could permanently affect cognitive function. In short—the board may believe that marijuana used off duty could still affect your ability to do your job when you're on duty.
- There is an ongoing stigma regarding marijuana use. Regardless of conflicting opinions or the science involved, a working professional who uses marijuana could be seen as less credible or competent by the general public. The licensing board may take the position that using the drug damages your public standing as a licensed professional.
What could trigger an investigation by my state licensing board regarding marijuana use?
Depending on your specific profession and the standards of conduct set forth by your state's licensing board, using cannabis recreationally could potentially prompt an investigation under any of the following circumstances:
- You are arrested for or convicted of a drug-related crime. For many professional licenses, a criminal conviction in itself is grounds for suspension or revoking of the license.
- Marijuana is detected by a drug test at your workplace, and your employer reports it to the licensing board.
- Someone accuses you of being under the influence while on the job. If someone detects the smell of marijuana is detected on you or in your office, or if someone believes you are not in full control of your senses while on the job, they might file a complaint alleging that you were using at work—which if true, could result in immediate suspension of your license in some cases.
- Someone observes you using marijuana off-duty (or overhears you talking about it) and reports you.
If someone files a complaint with the licensing board accusing me of marijuana use, what happens next?
Every licensing board in every state will have its specific protocols regarding complaints. However, the basic process will be similar from state to state. If your licensing board receives a complaint alleging that you used recreational marijuana in violation of your license, here's what you can expect:
- Investigation. The board will conduct an investigation to find out whether the complaint against you has merit or is worth pursuing. This process might include subpoenas of documents, interviews with witnesses, and a formal request for you to provide written testimony explaining your side of the story. If there is insufficient evidence to support the complaint, the matter can be resolved at this stage without further action. If the board is not satisfied with your written response or your level of cooperation during the investigation, they may call an inquiry to have you answer some questions in person.
- Consent order. If the board finds sufficient evidence of wrongdoing, they may offer to negotiate a consent order with you as an alternative to going through a formal hearing. A consent order is a legally binding agreement between the state, the board, and you, in which you collectively agree upon a set of prescribed sanctions. This option may sometimes provide an alternative to losing your license, but it is also an admission of guilt and will become a matter of public record.
- Formal hearing. If a consent order cannot be agreed upon, the board will schedule a formal hearing regarding the matter. Depending on the licensing board rules and the laws of your state, this hearing may take place in front of the board directly or in front of an Administrative Law Judge with the board acting similarly to a prosecutor.
- Final determination and penalty. At the conclusion of the hearing, the Judge and/or board will make a final determination regarding disciplinary action to be taken against you.
- Appeal. You have the right to appeal an adverse decision to the appellate courts in your state.
At any point in this process, the board may decide to dismiss the complaint, especially if the evidence against you is insignificant or if you can disprove the claim. Having a professional license attorney in your corner can have a significant impact on this process and improve your chances for a favorable outcome.
What penalties could I face from the licensing board for using cannabis—whether or not it is legal in my state?
If the use of marijuana violates the rules of your state's licensing board—even if it has been legalized or decriminalized in your state—the board may decide to take disciplinary action against you. Actions may include any of the following:
- Revoking your license. The worst possible outcome—the board may revoke your license permanently.
- License suspension. The board may opt to suspend your license for a specified or indefinite period of time.
- License restriction. The board may place restrictions on certain functions you would normally be allowed to perform.
- Fines. The board may impose a monetary fine.
- Imposing conditions. The board may require you to perform certain actions as a condition to keeping your license or avoiding other penalties—for example, mandatory treatment.
- Probation. The board may place you under monitoring or supervision for a time.
- Formal reprimand. In certain cases where the offense is deemed minor, the board may opt to place a formal censure or reprimand in your file.
Could a disciplinary action from the board hurt my career even if I don't lose my license over it?
Yes, it could. Any disciplinary action taken by a licensing board becomes a matter of public record, and anyone who is interested in the status of your license can usually find that information. A negative notation on your record could dissuade an employer or firm from hiring you, discourage a client or patient from coming to you, etc. Thus, even if you are allowed to continue operating professionally, the disciplinary action could have an impact on your career. The best outcome in such cases is to have the complaint dismissed so it doesn't appear on your record.
Am I guaranteed to be disciplined by the licensing board over allegations of marijuana use?
No, it's not a done deal. For one thing, there is a lot of murkiness at this time since the laws concerning marijuana use are changing. Secondly, there are many unanswered questions regarding whether it's appropriate to discipline you for a legal activity done off-duty if there is no evidence that it has affected your performance professionally. It is precisely for this reason that it is so helpful to have a license defense attorney to help you address these allegations. There may be plenty of angles from which to negotiate a better outcome, and an experienced attorney may have more latitude than you think in helping prevent license suspension, revocation, or other types of discipline.
How can a professional license defense attorney help me? When should I hire one?
Hiring a professional license defense attorney can greatly improve your chances for a favorable outcome over marijuana allegations or other complaints—and the sooner you hire the attorney, the better your chances for success. Many people assume you don't need an attorney until the investigation reaches a formal hearing; however, a good attorney can act as your legal representative from the earliest stages of the investigation, interacting and negotiating with the board at multiple stages to hopefully prevent the matter even from making it to the hearing stage. In addition, your attorney will evaluate the circumstances behind the complaint and help you strategize your best defense of the allegations. For best results, you should consider hiring effective legal representation as soon as you are notified of a complaint against you.
Your livelihood depends on your professional license, and having your license threatened over an activity you believed to be legal can be understandably confusing and frightening. However, a simple misunderstanding of the rules or even a temporary lapse in judgment does not have to derail your career. Attorney Joseph D. Lento has extensive experience defending licensed professionals in New Jersey and New York, and he will work tirelessly to ensure you receive fair treatment and the best possible resolution to your case. Call the Lento Law Firm at 888-535-3686 to see how we can help.
