With her case stayed pending a decision by Oklahoma Court of Criminal Appeals, a Lawton woman sought relief from the Oklahoma Supreme court asking for an intervention.
Accused of abusing medical marijuana during pregnancy, her argument is she’s protected due to its prescription by 2019’s Oklahoma Medical Marijuana and Patient Protection Act (MMPPA).
However, according to a statement from Pregnancy Justice co-counsel Quinn Emanuel Urguhart & Sullivan, LLP, whose attorney K. McKenzie Anderson, a former federal prosecutor, is representing Gonsulus, the state’s highest court declined to resolve the matter, meaning the criminal case is pending.
A felony charge of child neglect was filed in Comanche County District Court against Brittany Michelle Gonsulus, 27, on May 19, 2021.
Gunsolus gave birth to her daughter on Oct. 21, 2020, and the mother and girl tested positive for marijuana, according to the probable cause affidavit. Gunsolus admitted to a DHS case worker that she’d received prenatal care and used marijuana edibles and lotion during her pregnancy.
A DHS investigation of Gunsolus’ home found no evidence of neglect by substance abuse and reported her home was clean and a “safe environment,” according to a statement from Pregnancy Justice communications director Zenovia Earle.
The organization became involved through its intake process and provides criminal defense, defense strategy and partners with local counsel, medical experts and advocates. It’s important that women understand they don’t have to face the criminal legal system alone, according to Earle’s statement. That’s how pro-bono counsel was retained for Gunsolus.
“Ms. Gunsolus engaged in legal conduct, and being pregnant doesn’t turn legal conduct into illegal conduct,” said Pregnancy Justice President Lourdes A. Rivera in a statement. “Being pregnant doesn’t automatically exclude you from the protections of laws, and prosecutors cannot rewrite laws or charge people simply because they dislike certain behaviors.”
After being arrested and charged in court on Feb. 6, 2023, Gunsolus posted $5,000 bond, records indicate. The case was ultimately bound over for trial following a July 25, 2023, preliminary hearing where probable cause was determined. A motion to quash the charge was entered into the court in August 2023 but the court overruled the motion on Aug. 29, 2023.
In the motion, Gunsolus’ counsel alluded that because pregnant women were not included within the MMPPA statute that medical marijuana provisions should be granted to pregnant women under the premise of receiving care under a physician. The statement is asking the court to determine if she would be included or excluded from the provisions.
District Attorney Kyle Cabelka argued that wasn’t consistent with the statutory interpretation utilized by the Oklahoma Court of Criminal Appeals and noted that on the back of the medical marijuana holder’s card it states specifically “do not use medical marijuana if you are pregnant or breastfeeding,” according to the state’s response to the motion to quash.
District Judge Jay Walker denied Gunsolus’ motion to quash and she was arraigned and bound over for trial. She had been slated to appear on the upcoming jury trial docket that begins Jan. 22.
However, Gunsolus took her case to the Oklahoma Court of Criminal Appeals, requesting extraordinary relief and it was first denied Sept. 21, 2023, records indicate.
On Dec. 14, 2023, Gunsolus requested a motion to stay the case pending another appeal through the Oklahoma Court of Criminal Appeals as an application also was made to the Oklahoma Supreme Court to assume jurisdiction and petition for a writ of prohibition and declaratory relief nullifying and rescinding the felony charge.
In that application, Gunsolus’ counsel, Anderson asks for a declaration interpreting the MMPPA as immunizing “medical marijuana patient(s) … in actual possession of a medical marijuana license” from criminal prosecution and to prohibit Cabelka from proceeding in the criminal matter.
If the trial isn’t returned to schedule for the upcoming jury trial docket beginning Jan. 22, records indicate it will be moved to the April/May jury trial docket.
Cabelka told The Constitution this isn’t a new issue since the 2019 passage of medical marijuana legislation.
“I’m actually surprised this has not been ruled on yet,” he said.
While limited on what he can say due to this being an active case, Cabelka said he is going by how the law has been written and looks forward to a resolution. He believes, pending the outcome of the criminal case, it will eventually return to the Oklahoma Supreme Court if there is a conviction.
Speaking for Pregnancy Justice, Earle stated there was disappointment the Oklahoma Supreme Court chose not to resolve the issue.
“We hoped the court would make it clear that the law protects pregnant women who have medical marijuana cards from prosecution for using medicine approved by their doctors,” Earle stated. “Instead, the court’s silence means more Oklahoma women will continue to face the threat of felony child neglect charges, incarceration, and family separation — leaving children without their mothers.”