Appendix Q Model Bill

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MPP's model medical marijuana legislation can be used in your efforts to lobby your state 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 12 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 certain debilitating medical conditions, as found by the National Academy of Sciences' Institute of Medicine in March 1999.

(b) According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, 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.

(c) Although federal law currently prohibits any use of marijuana, the laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, Rhode Island, and Washington permit the medical use and cultivation of marijuana. _ joins in this effort for the health and welfare of its citizens.

(d) 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.

(e) State law should make a distinction between the medical and non-medical use of marijuana. Hence, the purpose of this act is to protect patients with debilitating medical conditions, and 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.

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(f) 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) "Debilitating medical condition" means:

(1) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, Hepatitis C, 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 or chronic 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 and Crohn's disease; agitation of Alzheimer's disease; or

(3) any other medical condition or its treatment approved by the department, as provided for in section 5(a).

(b) "Department" means the successor agency.

Department of Health or its

(c) "Marijuana" has the meaning given that term in

(d) "Medical use" means the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of marijuana to alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the medical condition.

(e) "Practitioner" means a person who is licensed with authority to prescribe drugs under section _.

(f) "Primary caregiver" means a person who is at least 18 years old and who has agreed to assist with a person's medical use of marijuana. A primary caregiver may assist no more than five qualifying patients with their medical use of marijuana.

(g) "Qualifying patient" means a person who has been diagnosed by a practitioner as having a debilitating medical condition.

(h) "Registry identification card" means a document issued by the department that identifies a person as a qualifying patient or primary caregiver.

(i) "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.

(j) "Written certification" means a statement signed by a practitioner, stating that in the practitioner's professional opinion the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. 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 or conditions.

SECTION 4. PROTECTIONS FOR THE MEDICAL USE OF MARIJUANA.

(a) A qualifying patient who has in his or her possession 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, 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.

(b) A primary caregiver who has in his or her possession 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, 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.

(c) No school, employer, or landlord may refuse to enroll, employ, lease to, or otherwise penalize a person solely for his or her status as a registered qualifying patient or a registered primary caregiver.

(d) There shall exist a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marijuana if the qualifying patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marijuana that does not exceed the amount permitted under this act. Such presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the medical condition.

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(e) A primary caregiver may receive reimbursement for costs associated with assisting with a registered qualifying patient's medical use of marijuana. Compensation shall not constitute sale of controlled substances.

(f) 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 a another business or occupational or professional licensing board or bureauDsolely for providing written certifications or for otherwise stating that, in the practitioner's professional opinion, the potential benefits of the medical marijuana would likely outweigh the health risks for a patient.

(g) (1) Any interest in or right to property that is possessed, owned, or used in connection with the medical use of marijuana, or acts incidental to such use, shall not be forfeited.

(2) A law enforcement agency that seizes and does not return usable marijuana to a registered qualifying patient or a registered primary caregiver shall be liable to the cardholder for the fair market value of the marijuana.

(h) No person shall be subject to arrest or prosecution for constructive possession, conspiracy, aiding and abetting, being an accessory, or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this act or for assisting a registered qualifying patient with using or administering marijuana.

(i) A registry identification card, or its equivalent, issued under the laws of another state, U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying patient, or to permit a person to assist with a qualifying patient's medical use of marijuana, shall have the same force and effect as a registry identification card issued by the department.

SECTION 5. DEPARTMENT TO ISSUE REGULATIONS.

(a) Not later than 90 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 those included in 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. 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. The denial of a petition shall not disqualify qualifying patients with that condition if they have a debilitating medical condition. The denial of a petition shall not prevent a person with the denied condition from raising an affirmative defense.

(b) Not later than 90 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 vary the application and renewal fees along a sliding scale that accounts for a qualifying patient's 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 of qualifying patient, if any.

(b) The department shall not issue a registry identification card to a qualifying patient 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) A 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:

(1) name, address, and date of birth of the qualifying patient;

(2) name, address, and date of birth of each primary caregiver of qualifying patient, if any;

(3) the date of issuance and expiration date of the registry identification card;

(4) a random registry identification number; and

(5) a photograph, if the department decides to require one.

(f) (1) A qualifying patient who has been issued a registry identification card shall notify the department of any change in the qualifying patient's name, address, or primary caregiver, or if the 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 person has ceased to suffer from a debilitating medical condition, the card shall be deemed null and void, and the person shall be liable for any other penalties that may apply to the person's non-medical use of marijuana.

(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 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 qualifying patient or primary caregiver notifies the department of any changes listed in this subsection, the department shall issue the registered qualifying patient and each primary caregiver a new registry identification card within 10 days of receiving the updated information and a $10 fee.

(5) When a qualifying patient who possesses a registry identification card changes his or her primary caregiver, the department shall notify the primary caregiver within

10 days. The 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 a 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, 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, or otherwise subject the person or property of the person to inspection by any governmental agency.

(h) (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 solely by confirming the random registry identification number.

(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, the department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

(i) The department shall report annually to the legislature on the number of applications for registry identification cards, the number of qualifying patients and primary caregivers approved, the nature of the debilitating medical conditions of the qualifying patients, the number of registry identification cards revoked, and the number of practitioners providing written certification for qualifying patients. The department shall not provide any identifying information of qualifying patients, primary caregivers, or practitioners.

(j) Any state or local law enforcement official who knowingly cooperates with federal law enforcement agents to arrest, investigate, prosecute, or search a registered qualifying patient or a registered primary caregiver or his or her property for acting in compliance with this act shall have his or her employment suspended or terminated.

SECTION 7. SCOPE OF ACT.

(a) This act shall not permit:

(1) any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;

(2) the smoking of marijuana:

(A) in a school bus or other form of public transportation;

(B) on any school grounds;

(C) in any correctional facility; or

(D) in any public place; and

(3) any person to 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 solely for having marijuana metabolites in his or her system.

(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 medical use of marijuana in any workplace.

(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 and for the non-medical use of marijuana.

SECTION 8. AFFIRMATIVE DEFENSE AND DISMISSAL FOR MEDICAL MARIJUANA.

(a) Except as provided in section 7, a person and a person's primary caregiver, if any, may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana, and such 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 person's medical history and current medical condition made in the course of a bona fide practitioner-patient relationship, the potential benefits of using marijuana for medical purposes would likely outweigh the health risks for the person; and

(2) the person and the person'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 alleviating the person's medical condition or symptoms associated with the 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 defendant shows the elements listed in Section 8(a).

(c) Any interest in or right to property that was possessed, owned, or used in connection with a person's use of marijuana for medical purposes shall not be forfeited if the person or the person's primary caregiver demonstrates the person's medical purpose for using marijuana pursuant to this section.

SECTION 9. ENFORCMENT 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 a court of competent jurisdiction 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.

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(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 qualified patients to submit applications, a notarized statement by a qualified patient containing the information required in an application, pursuant to section 6 (a) (2-5) , and a written certification shall be deemed a valid registry identification card.

that are in conflict

SECTION 10. REPEALER.

All laws and parts of laws in _ with this act are hereby repealed.

SECTION 11. 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 12. DATE OF EFFECT.

This act shall take effect upon its approval. OPTIONAL SECTION. NONPROFIT DISPENSARIES.

(a) "Registered organization" means a nonprofit entity registered with the state under this act that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, or dispenses marijuana, cultivation equipment, related supplies and educational materials, or marijuana seeds to registered qualifying patients and their primary caregivers. A registered organization is a primary caregiver, although it may supply marijuana to any number of registered qualifying patients who have designated it as one of their primary caregivers.

(b) (1) The department shall issue a registered organization license within 20 days to any person who complies with department rules and provides the following:

(A) a fee paid to the department in the amount established by the department, which shall not exceed $1,000;

(B) the name of the registered organization;

(C) the physical addresses of the registered organization and any other real property where marijuana is to be possessed, cultivated, manufactured, supplied, or dispensed relating to the operations of the registered organization; and

(D) the name, address, and date of birth of any person who is an agent of or employed by the registered organization.

(2) The department shall issue each agent and employee of a registered organization a registry identification card for a cost of $10 each within 10 days of receipt of the person's identifying information and the fee. Each card shall specify that the cardholder is an employee or agent of a registered organization.

3) Each license for a registered organization and each employee or agent registry identification card shall expire one year after the date of issuance.

(4) Not later than 90 days after the effective date of this act, the department shall promulgate regulations to implement this section, including the following:

(A) procedures for the oversight of registered organizations, record-keeping and reporting requirements for registered organizations, the potential transference or sale of seized cultivation equipment and related supplies from law enforcement agencies to registered organizations, and procedures for suspending or terminating the registration of registered organizations; and

(B) the form and content of the registration and renewal applications.

(c) Registered organizations shall be subject to reasonable inspection by the department to determine that applicable rules are being followed. Reasonable notice shall be given prior to these inspections.

(d) (1) Registered organizations shall be established as nonprofit entities. They shall be subject to all applicable state laws governing nonprofit entities, but need not be recognized as a 501(c)(3) organization by the Internal Revenue Service;

(2) Registered organizations may not be located within 500 feet of the property line of a public school, private school, or structure used primarily for religious services or worship.

(3) The operating documents of a registered organization shall include procedures for the oversight of the registered organization and procedures to ensure adequate record-keeping.

(e) (1) A registered organization shall notify the department within 10 days of when an employee or agent ceases to work at the registered organization.

(2) The registered organization shall notify the department before a new agent or employee begins working at the registered organization, in writing, and it shall submit a $10 fee for that person's registry identification card.

(f) (1) No registered 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 or occupational or professional licensing board or bureau for acting in accordance with this act and the regulations issued pursuant thereto to assist registered qualifying

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patients to whom it is connected through the department's registration process with the medical use of marijuana, provided that the registered organization possesses an amount of marijuana which does not exceed 12 marijuana plants and two-and-one-half ounces of usable marijuana for each registered qualifying patient.

(2) No employees, agents, or board members of a registered 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 or occupational or professional licensing board or bureau for working for a registered organization in accordance with this act.

(g) The registered organization is prohibited from:

(1) obtaining marijuana from outside the state in violation of federal law;

(2) acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, or dispensing marijuana for any purpose except to assist registered qualifying patients with their medical use of marijuana directly or through the qualifying patients' other primary caregivers.

(h) Except as provided in this act, a municipality may not prevent a registered organization from operating in accordance with this act in an area where zoning permits retail businesses.

(i) If provisions of this act establishing registered organization are enjoined or declared unconstitutional, then enforcing laws against delivery of marijuana for consideration to registered qualifying patients shall be the lowest priority of law enforcement.

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