Legal AnalysisLegal AnalysisState medical marijuana laws do not violate federal lawLaw Offices of BONNIE L. WARNKEN March 9, 2000 Delegate Joseph F. Vallario, Jr. Re: House Bill 308 (Marijuana – Exception for Compassionate Use) Dear Chairman Vallario: I am writing to the House Judiciary Committee on behalf of the Marijuana Policy Project (MPP). MPP supports House Bill 308, which, if enacted, would modify Maryland’s laws that prohibit possession of marijuana and related paraphernalia. Under House Bill 308, when a qualifying physician provides written documentation to a patient regarding the medical use of limited quantities of marijuana, Maryland law would render noncriminal the conduct of both the patient and the physician. Preemption: It is my understanding that the Committee has concern as to whether existing federal laws regulating controlled dangerous substances preempt the field, thus prohibiting Maryland’s enactment of the proposed legislation. The answer is no,meaning that federal law in no way limits the Maryland General Assembly’s power to enact the proposed legislation. If Maryland enacts the proposed legislation, both federal law and Maryland law would control the possession of marijuana, but in differing ways. State legislatures have broad police powers to enact legislation in the interest of the health and welfare of their citizens. Congress has the same broad police power when enacting legislation limited to federal enclaves. Congress may also enact legislation that controls conduct in the states, but only when there is either an express constitutional authorization or such legislation is necessary and proper to further an express power — most typically, the Commerce Clause. Thus, both Congress and the Maryland General Assembly have the power to enact legislation regulating the use and possession of marijuana. The preemption issue is whether, under the Supremacy Clause of the United States Constitution, Congress is the only legislative body that may regulate a particular area, i.e., whether Congress has the power to, and intended to, preempt the field. InPennsylvania v. Nelson, 350 U.S. 497, rehearing denied, 351 U.S. 934 (1956), the Supreme Court set forth a three-pronged test to determine whether federal law preempts state law, examining (1) whether the federal regulatory scheme is pervasive, (2) whether federal occupation of the field is necessitated by the need for national uniformity, and (3) whether there is danger of conflict between state laws and the administration of federal programs. It is rare that the courts interpret federal legislation as preempting state law. This is particularly true in the area of criminal law. Legislation to control criminal activity has always been considered to be particularly a state — and not a federal — function, as the courts have noted the importance of the 50 little laboratories in the area of criminal law. Six states and the District of Columbia have enacted laws similar to the proposed Maryland law. I have been unable to find on Westlaw even one reported or unreported decision in any United States District Court or any United States Circuit Court squarely addressing preemption in the context of this type of legislative scheme, i.e., decriminalizing medical use of marijuana under state law when federal law still criminalizes such usage. In fact, the only case to have made reference to preemption supports the understanding that there is no federal preemption involved here. In Turner v. District of Columbia Board of Elections & Ethics, 77 F. Supp. 2d 25, 34 n.5 (D.D.C. 1999), the court stated: [W]hatever else Initiative 59 purports to do, it proposes making local penalties for drug possession narrower that [sic] the comparable federal ones. Nothing in the Constitution prohibits such an action. Thus, although Congress may regulate the possession and use of marijuana, so may the state legislatures, even when the two legislative bodies regulate the area differently. The Interrelationship of the State and Federal Law as to the Patient’s Conduct:Under present law, a patient who uses marijuana for medical purposes violates both federal criminal law and Maryland criminal law. The enactment of H.B. 308 would protect the patient under Maryland law by decriminalizing medical use. At the same time, the patient’s criminal exposure under federal law would be no more or no less than it is without the enactment of H.B. 308. Under the proposed Maryland statute, for a qualifying patient, with a debilitating medical condition, it would not be criminal to use marijuana for medical purposes, in quantities not to exceed an adequate supply for the particular medical need, provided such conduct is pursuant to a physician’s written documentation that the potential benefits of the medical use would likely outweigh the health risks for that patient. H.B. 308 (Md. Ann. Code art. 27, ‘ 292(B)(1) & (C)(1)). At the same time, possession of marijuana is a federal crime under 21 U.S.C. ‘ 841. Although the patient’s conduct would still constitute a federal crime, prosecution is highly unlikely. Among the six jurisdictions with laws like the one proposed for Maryland, I have been unable to find on Westlaw even one reported or unreported decision in any United States District Court or any United States Circuit Court addressing a federal prosecution of a patient for marijuana possession in states that have enacted statutes like the proposed Maryland law. The Interrelationship of the State and Federal Law as to the Physician’s Conduct: Under the proposed Maryland statute, the physician would provide written and signed documentation to the patient, stating that, in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient. H.B. 308 (Md. Ann. Code art. 27, ‘ 292(a)(8)). Under the proposed legislation, the physician’s conduct (1) would not constitute a crime in Maryland, and (2) would not be subject to regulatory discipline in Maryland. H.B. 308 (Md. Ann. Code art. 27, ‘ 292(B)(2) & (C)(2)-(3)). At the same time, federal law authorizes the United States government to register physicians, as dispensers of controlled substances, and to revoke registrations under certain conditions. 21 U.S.C. ” 801-04, 821-28. There is an argument that the physician’s conduct, in providing the written and signed documentation, would make the physician subject to federal licensing disciplinary action, under the theory that such conduct may threaten the public health and safety. 21 U.S.C. ‘ 823(f)(5). Nonetheless, as with the conduct of the patient, I have been unable to find on Westlaw even one reported or unreported decision in any United States District Court or any United States Circuit Court addressing an administrative disciplinary case of a physician who provided the written documentation under a statute similar to the proposed Maryland legislation. In fact, analysis in the United States District Court for the Northern District of California stands for the proposition that federal disciplinary action would not be permissible. In Conant v. McCaffrey, 172 F.R.D. 681, 701 (N.D. Cal. 1997), a federal class action on behalf of physicians who recommend, and patients who use, marijuana for medical purposes, the court enjoined the United States government from revoking [physician] licenses … based upon conduct relating to medical marijuana that does not rise to the level of criminal offense. There is also an argument that the physician’s conduct, in providing the written and signed documentation, would constitute aiding and abetting the patient’s subsequent possession of marijuana. Federal law criminalizes the conduct of anyone who aids, abets, counsels, commands, induces or procures [the] commission of a federal crime. 18 U.S.C. ‘ 2. Section 2 has been interpreted to include the causing of an act that is criminal. In interpreting counsels, the United States Court of Appeals for the Ninth Circuit stated: It is only necessary that the [defendant] counseled and advised the commission of the crime, and that the counsel and advice influenced the perpetration of the crime. United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982) (quoting Workman v. State, 216 Ind. 68, 21 N.E.2d 712, 714 (1939)). Nonetheless, as with the conduct of the patient and the regulation of the physician, I have been unable to find on Westlaw even one reported or unreported decision in any United States District Court or any United States Circuit Court addressing a federal criminal prosecution of a physician who provided the written documentation under a statute similar to the proposed Maryland legislation. In fact, as referenced above,Conant v. McCaffrey, 172 F.R.D. 681, 701 (N.D. Cal. 1997), enjoined the United States government from threatening or prosecuting physicians … based upon conduct relating to medical marijuana that does not rise to the level of criminal offense.The court also noted that the First Amendment protects physician-patient communication up until the point that it becomes criminal … Id. In addition, our federal circuit, the United States Court of Appeals for the Fourth Circuit, has implied that even prescribing for medical purposes is not criminal. Two Fourth Circuit criminal appeals from convictions for prescribing controlled substances distinguish between prescribing for the treatment of a patient and prescribing for non-legitimate purposes. InUnited States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994), the court stated that 21 U.S.C. ‘ 841(a)(1) was violated when the physician’s authority to prescribe controlled substances was being used not for treatment of a patient, but for … dispensing controlled substances for other than a legitimate medical purpose.Accord United States v. Singh, 54 F.3d 1182, 1188-89 (4th Cir. 1995). Conclusion: There are no legal or practical reasons that H.B. 308 should not be enacted, at least based on the issues that I have been asked to address to the members of the committee. If desired by the Committee, I would be available to provide further written or oral input to the Committee. I have enclosed a copy of my curriculum vitae. Thank you for your consideration. Cordially yours, Byron L. Warnken Enclosure cc: Committee members
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Overview and explanation of MPP’s model state medical marijuana bill
Overview and explanation of MPP’s model state medical marijuana bill
The relationship of the model bill and state law to federal law
Although the U.S. Supreme Court ruled on June 6, 2005 (Gonzales v. Raich) that the federal government can prosecute patients in states that removed their criminal penalties for the medical use of marijuana, the court did not question a state’s ability to allow patients to grow, possess, and use medical marijuana under state law.
Indeed, the medical marijuana laws that have been passed by voter initiatives in eight states and by four legislatures continue to provide effective legal protection for patients and their primary caregivers because they are carefully worded. MPP’s model bill is based on those laws — primarily the Rhode Island law, because it is the most recent medical marijuana law that received majority support among state legislators.
Of course, the model bill only provides protection against arrest and prosecution by state or local authorities. State laws cannot offer protection against the possibility of arrest and prosecution by federal authorities. Even so, because 99% of all marijuana arrests are made by state and local — not federal — officials, properly worded state laws can effectively protect 99 out of every 100 medical marijuana users who would otherwise face prosecution at the state level.
In truth, changing state law is the key to protecting medical marijuana patients from arrest, as there has not been one documented case where a patient has been convicted in a federal court for a small quantity of marijuana in the 12 states that have effective medical marijuana laws.
Six key principles for effective state medical marijuana laws
In order for a state law to provide effective protection for seriously ill people who engage in the medical use of marijuana, a state law must:
1. define what is a legitimate medical use of marijuana by requiring a person who seeks legal protection to (1) have a medical condition that is sufficiently serious or debilitating and (2) have the approval of his or her medical practitioner (Sec. 3(b) and 3(n));
2. provide legal protection for the primary caregivers of patients who are too ill to provide for their own medical use of marijuana (Sec. 4(b));
3. avoid provisions that would require physicians or government employees to violate federal law in order for patients to legally use medical marijuana;
4. provide a means of obtaining marijuana, which can only be done in the following four ways: permit patients to cultivate their own marijuana; permit primary caregivers to cultivate marijuana on behalf of patients; permit patients or primary caregivers to purchase marijuana from the criminal market (which patients already do illegally); and/or authorize nongovernmental organizations to cultivate and distribute marijuana to patients and their primary caregivers (Sec. 4(a), 4 (b), and the optional section, 12);
5. allow patients and primary caregivers who are arrested anyway to discuss the medical use of marijuana in court (Sec. 8); and
6. implement a series of sensible restrictions, such as prohibiting patients and primary caregivers from possessing large quantities of marijuana, prohibiting driving while under the influence of marijuana, and so forth (Sec. 7).
The importance of precisely worded state laws
Because the medical use of marijuana is prohibited by federal law, state medical marijuana legislation must be worded precisely in order to provide patients and primary caregivers with legal protection under state law. Even changing just one or two words in the model bill can make it symbolic, rather than truly effective.
For example, it is essential to avoid use of the word “prescribe,” since federal law prohibits doctors from prescribing marijuana. Doctors risk losing their federally controlled license to prescribe all medications if they “prescribe” marijuana — which would be useless anyway because pharmacies are governed by the same regulations and cannot fill marijuana prescriptions. Physicians are, however, permitted under federal law to evaluate the relative risks and benefits of the medical use of marijuana. Thus, to establish a patient’s legitimate medical marijuana use, the state law must contain language accepting a physician’s statement that says, “the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana ,” or something similar.
The importance of this seemingly trivial distinction is made clear by the case of Arizona, which passed a ballot initiative (Proposition 200) by 65% of the vote in November 1996. Arizona’s law is dependent upon patients possessing marijuana “prescriptions.” As a result, no patients in Arizona have legal protection for using medical marijuana.
There are numerous other important technical nuances that are impossible to anticipate without having spent several years working on medical marijuana bills and initiatives nationwide. Consequently, it is crucial to discuss ideas and concerns with MPP before changing even one word of the model bill. MPP can also provide a more complete written technical analysis of the model bill.
Optional provision in the model bill
State-sanctioned nonprofit distribution of medical marijuana:
One criticism that has been levied against the existing state medical marijuana laws is that they do not provide a way for patients to obtain a supply of marijuana beyond growing their own, obtaining the help of a caregiver, or purchasing marijuana from the criminal market. This provision authorizes nonprofit organizations to distribute medical marijuana legally under state law without directly involving state and local officials in marijuana distribution.
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MPP’s Model State Medical Marijuana Bill
MPP’s Model State Medical Marijuana Bill
MPP’s model medical marijuana legislation can be used in your efforts to lobby your legislature. The model bill is based on laws that have been passed by voters in eight states and by the Hawaii, Rhode Island and Vermont legislatures. It incorporates the lessons learned about the laws by patients, their advocates, physicians, lawyers, and government studies of those laws — including reports by the Vermont Medical Marijuana Study Commission and the U.S. General Accounting Office.
Because 99 percent of all marijuana arrests are made by state and local — not federal — officials, this bill can effectively protect 99 out of every 100 medical marijuana users who would otherwise face prosecution at the state level.
Be it enacted by the people of the state of _____:
Section 1. Title.
Sections 1 through __ of this act shall be known as the _____ Medical Marijuana Act.
Section 2. Findings.
(a) Modern medical research has discovered beneficial uses for marijuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999.
(b) Subsequent studies since the 1999 National Academy of Sciences’ Institute of Medicine report continue to show the therapeutic value of marijuana in treating a wide array of debilitating medical conditions, including increasing the chances of patients finishing their treatments for HIV/AIDS and hepatitis C.
(c) Data from the Federal Bureau of Investigation’s Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marijuana arrests in the U.S. are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana.
(d) Although federal law currently prohibits any use of marijuana except under very limited circumstances, Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington have removed state-level criminal penalties from the medical use and cultivation of marijuana. _____ joins in this effort for the health and welfare of its citizens.
(e) States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. Therefore, compliance with this act does not put the state of _____ in violation of federal law.
(f) State law should make a distinction between the medical and non-medical uses of marijuana. Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their practitioners and primary caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.
(g) The people of the state of _________ declare that they enact this act pursuant to the police power to protect the health of its citizens that is reserved to the state of _________ and its people under the 10th Amendment to the United States Constitution.
Section 3. Definitions.
The following terms, as used in this act, shall have the meanings set forth in this section:
(a) “Cardholder” means a qualifying patient or a primary caregiver who has been issued and possesses a valid registry identification card.
(b) “Debilitating medical condition” means one or more of the following:
(1) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions;
(2) a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis; or
(3) any other medical condition or its treatment approved by the department, as provided for in section 5(a).
(c) “Department” means the _____ Department of Health or its successor agency.
(d) “Enclosed, locked facility” means a closet, room, greenhouse, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.
(e) “Felony drug offense” means a violation of a state or federal controlled substance law that was classified as a felony in the jurisdiction where the person was convicted. It does not include:
(1) an offense for which the sentence, including any term of probation, incarceration, or supervised release, was completed 10 or more years earlier; or
(2) an offense that involved conduct that would have been permitted under this act.
(f) “Marijuana” has the meaning given that term in _____.
(g) “Medical use” means the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the patient’s debilitating medical condition.
(h) “Practitioner” means a person who is licensed with authority to prescribe drugs under section _____.
(i) “Primary caregiver” means a person who is at least 21 years old, who has agreed to assist with a patient’s medical use of marijuana, and who has never been convicted of a felony drug offense. A primary caregiver may assist no more than five qualifying patients with their medical use of marijuana.
(j) “Qualifying patient” means a person who has been diagnosed by a practitioner as having a debilitating medical condition.
(k) “Registry identification card” means a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver.
(l) “Usable marijuana” means the dried leaves and flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant and does not include the weight of other ingredients in marijuana prepared for consumption as food.
(m) “Visiting qualifying patient” means a patient who is not a resident of ____ or who has been a resident of _____ less than 30 days.
(n) “Written certification” means a document signed by a practitioner, stating that in the practitioner’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition. A written certification shall be made only in the course of a bona fide practitioner-patient relationship after the practitioner has completed a full assessment of the qualifying patient’s medical history. The written certification shall specify the qualifying patient’s debilitating medical condition.
Section 4. Protections for the Medical Use of Marijuana.
(a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act, provided that the qualifying patient possesses an amount of marijuana that does not exceed 12 marijuana plants and two-and-one-half ounces of usable marijuana. Said plants shall be kept in an enclosed, locked facility, unless they are being transported because the qualifying patient is moving or if they are being transported to the qualifying patient’s property. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department’s registration process with the medical use of marijuana in accordance with this act, provided that the primary caregiver possesses an amount of marijuana that does not exceed 12 marijuana plants and two-and-one-half ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department’s registration process. Said plants shall be kept in an enclosed, locked facility, unless they are being transported because the primary caregiver is moving or if they are being transported to a primary caregiver’s or a qualifying patient’s property. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount.
(c) (1) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marijuana in accordance with this act if the qualifying patient or primary caregiver:
(A) is in possession of a registry identification card; and
(B) is in possession of an amount of marijuana that does not exceed the amount allowed under this act.
(2) The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of treating or alleviating the qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act.
(d) A cardholder shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for giving marijuana to a registered qualifying patient or a registered primary caregiver for the registered qualifying patient’s medical use where nothing of value is transferred in return, or to offer to do the same.
(e) No school, employer, or landlord may refuse to enroll or employ or lease to, or otherwise penalize a person solely for his or her status as a registered qualifying patient or a registered primary caregiver, unless failing to do so would put the school, employer, or landlord in violation of federal law or cause it to lose a federal contract or funding.
(f) A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.
(g) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient’s medical use of marijuana, provided that registered primary caregiver is connected to the registered qualifying patient through the department’s registration process. Any such compensation shall not constitute the sale of controlled substances.
(h) A practitioner shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the ______ Medical Board or by any other business or occupational or professional licensing board or bureau, solely for providing written certifications or for otherwise stating that, in the practitioner’s professional opinion, a patient is likely to receive therapeutic benefit from the medical use of marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a practitioner for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care for evaluating medical conditions.
(i) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for providing a registered qualifying patient or a registered primary caregiver with marijuana paraphernalia for purposes of a qualifying patient’s medical use of marijuana.
(j) (1) Any marijuana, marijuana paraphernalia, licit property, or interest in licit property that is possessed, owned, or used in connection with the medical use of marijuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.
(2) A law enforcement agency that seizes and does not return marijuana that is possessed in accordance with this act by a registered qualifying patient or a registered primary caregiver shall be liable to the cardholder for the fair market value of the marijuana.
(k) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, simply for being in the presence or vicinity of the medical use of marijuana as allowed under this act, or for assisting a registered qualifying patient with using or administering marijuana.
(l) A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows the medical use of marijuana by a visiting qualifying patient, shall have the same force and effect as a registry identification card issued by the department.
(m) Any cardholder who sells marijuana to a person who is not allowed to use marijuana for medical purposes under this act shall have his or her registry identification card revoked, and is liable for any other penalties for the sale of marijuana. The department may revoke the registry identification card of any cardholder who violates this act, and the cardholder shall be liable for any other penalties for the violation.
Section 5. Department to Issue Regulations.
(a) Not later than 120 days after the effective date of this act, the department shall promulgate regulations governing the manner in which it shall consider petitions from the public to add debilitating medical conditions to the list of debilitating medical conditions set forth in section 3(b) of this act. In considering such petitions, the department shall include public notice of, and an opportunity to comment in a public hearing upon, such petitions. The department shall, after hearing, approve or deny such petitions within 180 days of submission of the petition. The approval or denial of such a petition shall be considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the _____ Court.
(b) Not later than 120 days after the effective date of this act, the department shall promulgate regulations governing the manner in which it shall consider applications for and renewals of registry identification cards for qualifying patients and primary caregivers. The department’s regulations shall establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this act. The department may establish a sliding scale of application and renewal fees based upon a qualifying patient’s family income. The department may accept donations from private sources in order to reduce the application and renewal fees.
Section 6. Administering the Department’s Regulations.
(a) The department shall issue registry identification cards to qualifying patients who submit the following, in accordance with the department’s regulations:
(1) written certification;
(2) application or renewal fee;
(3) name, address, and date of birth of the qualifying patient, except that if the applicant is homeless, no address is required;
(4) name, address, and telephone number of the qualifying patient’s practitioner; and
(5) name, address, and date of birth of each primary caregiver, if any, of the qualifying patient.
(b) The department shall not issue a registry identification card to a qualifying patient who is under the age of 18 unless:
(1) The qualifying patient’s practitioner has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient; and
(2) The parent, guardian, or person having legal custody consents in writing to:
(A) allow the qualifying patient’s medical use of marijuana;
(B) serve as one of the qualifying patient’s primary caregivers; and
(C) control the acquisition of the marijuana, the dosage, and the frequency of the medical use of marijuana by the qualifying patient.
(c) The department shall verify the information contained in an application or renewal submitted pursuant to this section, and shall approve or deny an application or renewal within 15 days of receiving it. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified. Rejection of an application or renewal is considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the _____ Court.
(d) The department shall issue a registry identification card to each primary caregiver, if any, who is named in a qualifying patient’s approved application, up to a maximum of two primary caregivers per qualifying patient.
(e) The department shall issue registry identification cards within five days of approving an application or renewal, which shall expire one year after the date of issuance. Registry identification cards shall contain all of the following:
(1) Name, address, and date of birth of the qualifying patient;
(2) Name, address, and date of birth of each primary caregiver, if any, of the qualifying patient;
(3) The date of issuance and expiration date of the registry identification card;
(4) A random identification number that is unique to the cardholder; and
(5) A photograph, if the department decides to require one.
(f) (1) A registered qualifying patient shall notify the department of any change in the registered qualifying patient’s name, address, or primary caregiver, or if the registered qualifying patient ceases to have his or her debilitating medical condition, within 10 days of such change.
(2) A registered qualifying patient who fails to notify the department of any of these changes is responsible for a civil infraction, punishable by a fine of no more than $150. If the registered qualifying patient’s certifying practitioner notifies the department in writing that the registered qualifying patient has ceased to suffer from a debilitating medical condition, the card shall become null and void upon notification by the department to the qualifying patient.
(3) A registered primary caregiver shall notify the department of any change in his or her name or address within 10 days of such change. A registered primary caregiver who fails to notify the department of any of these changes is responsible for a civil infraction, punishable by a fine of no more than $150.
(4) When a registered qualifying patient or registered primary caregiver notifies the department of any changes listed in this subsection, the department shall issue the registered qualifying patient and each registered primary caregiver a new registry identification card within 10 days of receiving the updated information and a $10 fee.
(5) When a registered qualifying patient changes his or her registered primary caregiver, the department shall notify the primary caregiver within 10 days. The registered primary caregiver’s protections as provided in this act shall expire 10 days after notification by the department.
(6) If a registered qualifying patient or registered primary caregiver loses his or her registry identification card, he or she shall notify the department and submit a $10 fee within 10 days of losing the card. Within five days after such notification, the department shall issue a new registry identification card with a new random identification number.
(g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card.
(h) The following confidentiality rules shall apply:
(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and practitioners, are confidential.
(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list shall be confidential, exempt from the _____ Freedom of Information Act, and not subject to disclosure, except to authorized employees of the department as necessary to perform official duties of the department.
(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
(4) It shall be a crime, punishable by up to 180 days in jail and a $1,000 fine, for any person, including an employee or official of the department or another state agency or local government, to breach the confidentiality of information obtained pursuant to this act. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department, so long as the employee who suspects that falsified or fraudulent information has been submitted confers with his or her supervisor (or at least one other employee of the department) and both agree that circumstances exist that warrant reporting.
(i) The department shall submit to the legislature an annual report that does not disclose any identifying information about qualifying patients, primary caregivers, or practitioners, but does contain, at a minimum, all of the following information:
(1) The number of applications and renewals filed for registry identification cards.
(2) The number of qualifying patients and primary caregivers approved in each county.
(3) The nature of the debilitating medical conditions of the qualifying patients.
(4) The number of registry identification cards revoked.
(5) The number of practitioners providing written certifications for qualifying patients.
(j) Where a state-funded or locally funded law enforcement agency encounters an individual who, during the course of the investigation, credibly asserts that he or she is a registered qualifying patient or registered primary caregiver, the law enforcement agency shall not provide any information from any marijuana-related investigation of the person to any law enforcement authority that does not recognize the protection of this act and any prosecution of the individual for a violation of this act shall be conducted pursuant to the laws of this state.
Section 7. Scope of Act.
(a) This act shall not permit any person to do any of the following:
(1) Undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;
(2) Possess marijuana, or otherwise engage in the medical use of marijuana:
(A) in a school bus;
(B) on the grounds of any preschool or primary or secondary school; or
(C) in any correctional facility.
(3) Smoke marijuana:
(A) on any form of public transportation; or
(B) in any public place.
(4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana. However, a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.
(b) Nothing in this act shall be construed to require:
(1) A government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana; or
(2) An employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana, provided that a qualifying patient shall not be considered to be under influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.
(c) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a fine of $500, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this act.
Section 8. Affirmative Defense and Dismissal for Medical Marijuana.
(a) Except as provided in section 7, a patient and a patient’s primary caregiver, if any, may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana, and this defense shall be presumed valid where the evidence shows that:
(1) A practitioner has stated that, in the practitioner’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide practitioner-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the patient’s serious or debilitating medical condition; and
(2) The patient and the patient’s primary caregiver, if any, were collectively in possession of a quantity of marijuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms associated with the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the patient’s serious or debilitating medical condition.
(b) A person may assert the medical purpose for using marijuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).
(c) If a patient or a patient’s primary caregiver demonstrates the patient’s medical purpose for using marijuana pursuant to this section, the patient and the patient’s primary caregiver shall not be subject to the following for the patient’s use of marijuana for medical purposes:
(1) disciplinary action by a business or occupational or professional licensing board or bureau; or
(2) forfeiture of any interest in or right to property.
Section 9. Enforcement of this Act.
(a) If the department fails to adopt regulations to implement this act within 120 days of the effective date of this act, a qualifying patient may commence an action in ____ court to compel the department to perform the actions mandated pursuant to the provisions of this act.
(b) If the department fails to issue a valid registry identification card in response to a valid application or renewal submitted pursuant to this act within 20 days of its submission, the registry identification card shall be deemed granted, and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.
(c) If at any time after the 140 days following the effective date of this act the department is not accepting applications, including if it has not created regulations allowing qualifying patients to submit applications, a notarized statement by a qualifying patient containing the information required in an application, pursuant to section 6 (a)(2-5) together with a written certification shall be deemed a valid registry identification card.
Section 10. Severability.
Any section of this act being held invalid as to any person or circumstances shall not affect the application of any other section of this act that can be given full effect without the invalid section or application.
Section 11. Date of Effect.
This act shall take effect upon its approval.
[Optional Section 12.] Medical Marijuana Organization
(a) Definition. For purposes of this section, “medical marijuana organization” means an entity registered under this section that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, or dispenses marijuana, or related supplies and educational materials, to registered qualifying patients and their registered primary caregivers. A medical marijuana organization is a primary caregiver. All provisions of this act pertaining to a primary caregiver shall apply to a medical marijuana organization unless they conflict with a provision contained in this section. A medical marijuana organization shall supply marijuana to any number of registered qualifying patients who have designated it as one of their primary caregivers.
(b) Registration requirements.
(1) The department shall register a medical marijuana organization and issue a registration certificate within 20 days to any person or entity that provides:
(A) A fee paid to the department in the amount of $5,000.00;
(B) The legal name of the medical marijuana organization;
(C) The physical address of the medical marijuana organization and the physical address of one additional location, if any, where marijuana will be cultivated;
(D) The name, address, and date of birth of each principal officer and board member of the medical marijuana organization;
(E) The name, address, and date of birth of any person who is an agent of or employed by the medical marijuana organization.
(2) The department shall track the number of registered qualifying patients who designate each medical marijuana organization as a primary caregiver, and issue a written statement to the medical marijuana organization of the number of qualifying patients who have designated the medical marijuana organization to serve as a primary caregiver for them. This statement shall be updated each time a new registered qualifying patient designates the medical marijuana organization or ceases to designate the medical marijuana organization and may be transmitted electronically if the department’s regulations so provide. The department may provide by regulation that the updated written statements will not be issued more frequently than twice each week.
(3) The department shall issue each principal officer, board member, agent, and employee of a medical marijuana organization a registry identification card within 10 days of receipt of the person’s name, address, date of birth, and a fee in an amount established by the department. Each card shall specify that the cardholder is a principal officer, board member, agent, or employee of a medical marijuana organization and shall contain the following:
(A) The name, address, and date of birth of the principal officer, board member, agent or employee;
(B) The legal name of the medical marijuana organization to which the principal officer, board member, agent, or employee is affiliated;
(C) A random identification number that is unique to the cardholder;
(D) The date of issuance and expiration date of the registry identification card; and
(E) A photograph, if the department decides to require one.
(4) The department shall not issue a registry identification card to any principal officer, board member, agent, or employee of a medical marijuana organization who has been convicted of a felony drug offense. The department may conduct a background check of each principal officer, board member, agent, or employee in order to carry out this provision. The department shall notify the medical marijuana organization in writing of the purpose for denying the registry identification card. However, the department shall grant such person a registry identification card if the department determines that the person’s conviction was for the medical use of marijuana or assisting with the medical use of marijuana.
(c) Authority of the Department. Not later than 120 days after the effective date of this act, the department shall promulgate regulations governing the manner in which it shall consider applications for and renewals of registration certificates for medical marijuana organizations, including rules governing:
(1) The form and content of registration and renewal applications;
(2) Minimum oversight requirements for medical marijuana organizations;
(3) Minimum record-keeping requirements for medical marijuana organizations;
(4) Minimum security requirements for medical marijuana organizations; and
(5) Procedures for suspending or terminating the registration of medical marijuana organizations that violate the provisions of this section or the regulations promulgated pursuant to this subsection.
(d) Expiration. A medical marijuana organization registration certificate and the registry identification card for each principal officer, board member, agent, or employee shall expire one year after the date of issuance. The department shall issue a renewal medical marijuana organization registration certificate and renewal registry identification cards within 10 days to any person who complies with the requirements contained in subsection (b) of this section.
(e) Inspection. Medical marijuana organizations are subject to reasonable inspection by the department. The department shall give reasonable notice of an inspection under this subsection.
(f) Medical marijuana organization requirements.
(1) A medical marijuana organization may not be located within 500 feet of the property line of a preexisting public or private school.
(2) A medical marijuana organization shall notify the department within 10 days of when a principal officer, board member, agent, or employee ceases to work at the medical marijuana organization.
(3) A medical marijuana organization shall notify the department in writing of the name, address, and date of birth of any new principal officer, board member, agent, or employee and shall submit a fee in an amount established by the department for a new registry identification card before a new agent or employee begins working at the medical marijuana organization.
(4) A medical marijuana organization shall implement appropriate security measures to deter and prevent the unauthorized entrance into areas containing marijuana and the theft of marijuana.
(5) The operating documents of a medical marijuana organization shall include procedures for the oversight of the medical marijuana organization and procedures to ensure accurate record keeping.
(6) A medical marijuana organization is prohibited from acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, or dispensing marijuana for any purpose except to assist registered qualifying patients with the medical use of marijuana directly or through the qualifying patients’ other primary caregiver.
(7) All principal officers and board members of a medical marijuana organization must be residents of the state of _______.
(g) Immunity.
(1) No registered medical marijuana organization shall be subject to prosecution, search, seizure, or penalty in any manner or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity, solely for acting in accordance with this section to assist registered qualifying patients to whom it is connected through the department’s registration process with the medical use of marijuana.
(2) No principal officers, board members, agents, or employees of a registered medical marijuana organization shall be subject to arrest, prosecution, search, seizure, or penalty in any manner or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity, solely for working for or with a medical marijuana organization in accordance with this act.
(h) Prohibitions.
(1) A medical marijuana organization may not possess an amount of marijuana that exceeds the total of the allowable amounts of marijuana for the registered qualifying patients for whom the medical marijuana organization is a registered primary caregiver.
(2) a medical marijuana organization may not dispense, deliver, or otherwise transfer marijuana to a person other than a qualifying patient who has designated the medical marijuana organization as a primary caregiver or to such patient’s primary caregiver.
(3) a medical marijuana organization may not obtain marijuana from outside the state of ________.
(4) a person convicted of violating paragraph (2) of this subsection may not be an employee, agent, principal officer, or board member of any medical marijuana organization, and such person’s registry identification card shall be immediately revoked.
(5) No person who has been convicted of a felony drug offense may be the principal officer, board member, agent, or employee of a medical marijuana organization unless the department has determined that the person’s conviction was for the medical use of marijuana or assisting with the medical use of marijuana and issued the person a registry identification card as provided under subsection (b)(3). A person who is employed by or is an agent, principal officer, or board member of a medical marijuana organization in violation of this section is guilty of a civil violation punishable by a fine of up to $1,000. A subsequent violation of this section is a gross misdemeanor.
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