OLR Bill Analysis

sHB 5355

AN ACT CONCERNING THE MEDICAL USE OF MARIJUANA

SUMMARY:

This bill:

1. allows the Department of Agriculture and Consumer Protection (DACP) to license physicians to prescribe, possess, and supply marijuana for the treatment of various debilitating conditions, rather than just glaucoma and the effects of chemotherapy;

2. correspondingly allows patients and their primary caregivers to possess the prescribed quantity for treating these conditions;

3. establishes the circumstances when physicians may certify their patients' use of marijuana;

4. requires patients who use marijuana for medical purposes and their primary caregiver to register with the DACP;

5. protects from criminal and civil punishment patients who use marijuana for medical treatment, the doctors who certify the drug's use, and caregivers who possess the drug for the patients' use;

6. allows patients or caregivers who strictly comply with the bill to assert the medical use of marijuana as an affirmative defense to the state's drug-related criminal laws;

7. prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for medical use;

8. requires law enforcement officers to return seized marijuana or marijuana paraphernalia intended for medical use, but does not make them responsible for the care or maintenance of seized marijuana plants; and

9. makes it a misdemeanor for anyone to lie to a law enforcement officer about using marijuana for medical purposes or about being issued a doctor's certification to use marijuana for such purposes.

EFFECTIVE DATE: October 1, 2004

USE OF MARIJUANA FOR MEDICAL PURPOSES

By law, the DACP commissioner can license physicians to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy. The law explicitly allows people suffering from these conditions to possess the marijuana these physicians prescribe.

The bill extends the conditions of licensure to include the treatment of adults suffering from (1) cancer, HIV, AIDS, or side effects of treatment of such conditions; (2) a chronic or debilitating disease or medical condition, or the effects of treatment of such conditions, that causes wasting syndrome, severe pain, severe nausea, seizures, or severe and persistent muscles spasms; or (3) any other medical condition the Department of Public Health approves by regulations requested by a physician or patient with a debilitating medical condition. And just as with people with glaucoma or receiving chemotherapy, the bill allows people with the debilitating conditions listed above to possess marijuana, up to the amount permitted for medical use.

The bill allows a patient's primary caregiver to possess the same amount. The caregiver must be at least age 18 and someone other than the patient's doctor who assists the patient in his use of marijuana for medical purposes. If the patient lacks legal capacity, the caregiver must be his parent, guardian, or legal custodian. The bill limits patients to one caregiver at a time and caregivers to only one patient.

CERTIFICATION OF MARIJUANA USE

Under the bill, a physician may certify a patient's use of marijuana only after he has determined that the patient is over 18 and has a debilitating condition (i. e. , the patient is a qualifying patient) and the potential benefits of medical marijuana would likely outweigh its health risks. The bill makes the certification valid for one year from the date it is signed. "Medical use" means the acquisition, distribution, possession, growth, use, or transportation of marijuana or marijuana paraphernalia to treat the symptoms or effects of a qualifying patient's symptoms. "Acquisition" and "distribution" mean the transfer of marijuana and marijuana paraphernalia from the primary caregiver to the qualifying patient.

The bill does not require health insurers to cover the medical use of marijuana.

REGISTRATION

The bill requires patient-recipients of the certification and their primary caregiver to register with DACP, providing it with information that sufficiently and personally identifies them. The patient or caregiver must report any change in the information they provide not later than five business days after it occurs.

The bill requires DACP to issue the patient and the primary caregiver a registration certificate that is valid for the same period as the written certification from the physician, up to one year. DACP may charge any reasonable registration fee, up to $ 25.

The bill makes registration information confidential and not subject to disclosure under the Freedom of Information Act. But DACP can verify for any law enforcement agency that asks whether a patient or primary caregiver is registered and provide the agency with reasonable access to registry information for law enforcement purposes. The bill permits DACP to establish in regulations (1) a form physicians must use to certify a patient's medical use of marijuana and (2) registration requirements.

PUNISHMENT FOR MARIJUANA CERTIFICATION, USE, AND POSSESSION

Physician

The bill prohibits any physician from being arrested, prosecuted, or otherwise penalized, including being denied any right or privilege, or being disciplined by the Connecticut Medical Examining Board or any other professional licensing board, for writing a certification for marijuana if he:

1. diagnosed a qualifying patient with a debilitating condition;

2. explained the risks and benefits of using marijuana for medicinal purposes to any such patient or the parent, guardian, or legal custodian of any such patient that lacks legal capacity; and

3. based his written certification on his professional opinion after fully assessing the patient's medical history and current medical condition in the course of a physician-patient relationship.

Qualifying Patients

The bill prohibits qualifying patients from being arrested, prosecuted, denied any right or privilege, or otherwise punished for using marijuana if:

1. they are diagnosed with a debilitating condition;

2. their physician has issued a written certification for the patient's medical use of marijuana after prescribing, or determining it is against the patients' best interest to prescribe, prescription drugs to address the symptoms the marijuana is supposed to treat;

3. the amount jointly possessed by the patient and his primary caregiver does not exceed five marijuana plants and one ounce of usable marijuana (see definition under Primary Caregiver); and

4. the marijuana is cultivated in a secure indoor facility.

The protection against punishment does not apply if a patient uses marijuana:

1. in a way that endangers another person's health or well-being; and

2. on a motor or school bus, in any moving vehicle, at work, on school grounds, or at a public park, beach, recreation or youth center, or any other public place; or

3. within the direct line of sight of anyone under age 18 or in any way that exposes the person to second-hand marijuana smoke, or both.

Primary Caregiver

The bill prohibits registered, primary caregivers from being arrested, prosecuted, denied any right or privilege, or otherwise penalized for acquiring, distributing, possessing, growing, or transporting a small amount of marijuana or marijuana paraphernalia for a qualifying patient. The amount of marijuana cannot exceed five plants and one ounce of usable marijuana (i. e. , dried marijuana leaves and flowers or preparation or mixture of flowers and leaves, minus the seeds, stalks, and roots).

The protection against punishment for distribution applies only when the drug or paraphernalia is transferred from the caregiver to the patient.

MEDICAL USE OF MARIJUANA AND CRIMINAL PROCEDURE

The bill permits patients and primary caregivers who comply with its requirements to assert that fact as an affirmative defense to (i. e. , a way to avoid) any state prosecution involving marijuana or marijuana paraphernalia. The bill prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for medical use.

The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a patient or primary caregiver who complies with its provisions immediately after a court determines that they were entitled to have it. Under the bill, entitlement is evidenced by a prosecutor's decision to dismiss the charges or not to prosecute, or the patient or caregiver's acquittal.

The law absolves law enforcement officials of any responsibility for the care and maintenance of live marijuana plants seized as evidence.

The bill makes anyone who lies to a law enforcement officer about acquiring, possessing, cultivating, using, distributing, or transporting marijuana for medical use in order to avoid arrest or prosecution for a drug-related offense guilty of a class C misdemeanor, punishable by up to three months' imprisonment, a $ 500 fine, or both. It makes anyone who lies to the officer about the issuance of a written certification for the medical use of marijuana guilty of a class A misdemeanor, punishable by up to one year in prison, a $ 2,000 fine, or both.

BACKGROUND

Marijuana is a Controlled Substance

Federal law classifies marijuana as a Schedule I controlled substance. With two exceptions, the law prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense Schedule I drugs. The U. S. Attorney General can register manufacturers and distributors, using statutorily specified criteria. Licensed practitioners, including pharmacies, can use Schedule I substances in government-approved research projects. The penalty for violations varies depending on the amount of drugs involved (21 USCA 812, 823, and 841 (a)(1)).

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute

Yea

24

Nay

15