OLR Bill Analysis
AN ACT CONCERNING THE PALLIATIVE USE OF MARIJUANA.
This bill allows a physician to certify an adult patient's use of marijuana after determining that the patient has a specified debilitating condition and could potentially benefit from the palliative use of marijuana. It establishes a procedure for certifying patients. The bill does not require health insurers to cover the palliative use of marijuana.
It allows people suffering from these conditions and their primary caregivers to possess a quantity of marijuana that the bill sets to treat the conditions.
The bill requires the patients and their primary caregivers to register with the Department of Consumer Protection (DCP) and authorizes the department to impose a $ 25 registration fee and other fees. The fees must be deposited in a separate, nonlapsing palliative marijuana administration account the bill establishes. Registry information is available for law enforcement purposes but is otherwise confidential and not subject to disclosure under the Freedom of Information Act.
The bill prohibits physicians, qualifying patients, and their caregivers who comply with its provisions from being arrested, prosecuted, or otherwise punished for certifying, using, or possessing palliative marijuana.
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.
EFFECTIVE DATE: October 1, 2011, except for the provision establishing the palliative marijuana administration account, which is effective July 1, 2011.
§ 2 – USE OF MARIJUANA FOR PALLIATIVE PURPOSES
The bill allows adult patients to use marijuana to treat cancer, glaucoma, HIV, AIDS, Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, cachexia (emaciation often caused by cancer or cardiac diseases), or wasting syndrome. It allows people with these debilitating conditions to possess marijuana, up to the amount permitted for palliative use under the bill—up to four plants, each having a maximum height of four feet, and one ounce of usable marijuana (i. e. , dried marijuana leaves and flowers or mixtures or preparations of flowers and leaves, minus the seeds, stalks, and roots).
Under the bill, “palliative use” means the acquisition and distribution, possession, growth, use, or transportation of marijuana or related paraphernalia to treat the qualifying patient's symptoms or their effects. “Acquisition and distribution” means the transfer of marijuana and marijuana paraphernalia from the primary caregiver to the qualifying patient.
The bill allows a patient or his primary caregiver to possess the usable amount. The caregiver must be at least age 18 and someone other than the patient's doctor who agrees to take responsibility for managing the patient's well-being with respect to his or her palliative use of marijuana. If the patient lacks legal capacity, the caregiver must be the patient's parent, guardian, or legal custodian. Someone convicted of marijuana possession or drug dealing cannot serve as a primary caregiver. The qualifying patient's physician must determine the patient's need for a primary caregiver and document the need in a certification of palliative use. The bill limits patients to one caregiver at a time and limits caregivers to only one patient.
§§ 2, 4 – CERTIFICATION OF MARIJUANA USE
Under the bill, a physician may certify a patient's use of marijuana only after determining that the patient has a debilitating condition and the potential benefits of the palliative use of marijuana would likely outweigh its health risks.
The bill makes the certification valid for one year from the date it is signed. It requires the patient or the primary caregiver to destroy all marijuana plants and usable marijuana that the patient or caregiver possesses for palliative use (1) within 10 days after the certification expires or (2) at any time before that if the patient no longer wishes to possess marijuana for palliative use.
The bill permits DCP to establish in regulations a form physicians must use to certify a patient's palliative use of marijuana.
§§ 3, 4 – REGISTRATION
The bill requires certified patients and their primary caregivers to register with DCP within five business days after the certificate is issued. They must give the department information that sufficiently and personally identifies them and report any change in the information within five business days after it occurs.
The bill requires DCP 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. DCP may charge a reasonable registration fee, up to $ 25. It must turn over any registration fees it collects to the state treasurer for deposit in the palliative marijuana administration account the bill creates.
The bill makes registration information confidential and not subject to disclosure under the Freedom of Information Act. But DCP 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 allows DCP to establish registration procedures in regulations. It requires DCP to establish regulations setting a reasonable fee for patients certified for palliative marijuana use that offsets direct and indirect costs associated with administering the palliative use of marijuana. When they register, patients must pay this fee and any registration fee to the state treasurer for deposit into the palliative marijuana administration account.
§ 10 – PALLIATIVE MARIJUANA ADMINISTRATION ACCOUNT
The bill establishes a separate, nonlapsing palliative marijuana administration account in the General Fund. The account consists of the fees DCP collects for palliative marijuana registration and administration, investment earnings, and any other moneys the law requires to be deposited in it. The legislature can appropriate money in the account only for palliative marijuana administration. Any money remaining in the account at the end of a fiscal year must be carried forward to the next year.
§§ 2, 7 – PROTECTIONS FROM PUNISHMENT FOR MARIJUANA USE, POSSESSION, AND CERTIFICATION
The bill prohibits qualifying patients from being arrested, prosecuted, otherwise penalized, including being subject to civil penalties, or denied any right or privilege, including being disciplined by a professional licensing board, for palliative marijuana use if:
1. a physician diagnoses the patient with a debilitating condition;
2. the patient's physician has issued a written certification for the patient's palliative use of marijuana after prescribing, or determining it is against the patient's best interest to prescribe, prescription drugs to address the symptoms or effects the marijuana is supposed to treat;
3. the combined amount possessed by the patient and his or her primary caregiver for palliative use does not exceed four marijuana plants, each having a maximum height of four feet, and one ounce of usable marijuana; 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;
2. on a motor or school bus, in any moving vehicle, at work, on school grounds or college or university property, in a public or private school or dormitory, 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, in any way that exposes that person to second-hand marijuana smoke, or both.
The bill prohibits any physician from being arrested, prosecuted, or otherwise penalized, including being subject to civil penalties or denied any right or privilege, including being disciplined by the Connecticut Medical Examining Board or any other professional licensing board, for writing a certification for palliative marijuana use if he or she:
1. diagnosed a qualifying patient with a debilitating condition;
2. explained the potential risks and benefits of using marijuana for palliative purposes to any such patient or the parent, guardian, or legal custodian of such a patient who lacks legal capacity; and
3. based the written certification on his or her professional opinion after fully assessing the patient's medical history and current medical condition in the course of a bona fide physician-patient relationship.
The bill specifies that it does not apply to physician assistants.
The bill prohibits registered primary caregivers from being arrested, prosecuted, otherwise penalized, including being subject to civil penalties, or denied any right or privilege, including being disciplined by a professional licensing board, for acquiring, distributing, possessing, growing, or transporting a small amount of marijuana or related paraphernalia for a qualifying patient. The amount of marijuana, along with the amount the patient possesses, cannot exceed four plants, each having a maximum height of four feet, and one ounce of usable marijuana.
The protection against punishment for distribution applies only when the drug or paraphernalia is transferred from the caregiver to the patient.
§§ 6, 8, 9 – PALLIATIVE USE OF MARIJUANA AND CRIMINAL PROCEDURE
The bill permits qualifying 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 related paraphernalia. It prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, distributed, possessed, cultivated, used, or transported for palliative use.
The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a qualifying patient or primary caregiver who complies with its provisions immediately after a court determines that they were entitled to have it. Under the bill, such an entitlement is evidenced by a prosecutor's decision not to prosecute, the dismissal of the charges, or the patient or caregiver's acquittal.
The bill absolves law enforcement officials of any responsibility for the care and maintenance of live marijuana plants seized as evidence.
Under the bill, someone who lies to a law enforcement official about acquiring, possessing, cultivating, using, distributing, or transporting marijuana or related paraphernalia for palliative use in order to avoid arrest or prosecution for any crime is guilty of a class C misdemeanor. Someone who lies to the official about the issuance, contents, or validity of a (1) written certification for the palliative use of marijuana or (2) document purporting to be a written certification, is guilty of a class A misdemeanor.
A class C misdemeanor is punishable by up to three months' imprisonment, up to a $ 500 fine, or both. A class A misdemeanor is punishable by up to one year's imprisonment, up to a $ 2,000 fine, or both.
Marijuana as a Controlled Substance
Federal law classifies marijuana as a Schedule I controlled substance. With one exception, the law prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense Schedule I drugs. 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 U. S. C. §§ 812, 823, and 841 (a) (1)).
State law prohibits anyone from purchasing, acquiring, transporting, or importing marijuana or controlled substances into the state and imposes a tax on violators (CGS § 12-651).
sSB 952, reported favorably by the Judiciary Committee, makes a number of changes to the laws that enhance the penalties for illegal drug activities near schools, day care centers, and public housing projects, including (1) allowing the court to suspend the enhanced penalty, (2) reducing the size of the zones around the locations from 1,500 to 200 feet in cities with populations of more than 60,000, and (3) eliminating the zones around public housing projects.
sSB 1014, reported favorably by the Judiciary Committee, reduces the penalty for possessing less than one half ounce of marijuana from a crime to an infraction for a first offense. It makes a subsequent offense punishable by a fine of $ 200 to $ 500. The bill also reduces the penalty for using drug paraphernalia from a crime to an infraction when the use relates to less than one half ounce of marijuana. The bill requires the motor vehicle commissioner to suspend the driver's license of anyone under age 21 who is convicted of one of these violations.
HB 6293, reported favorably by the Planning and Development Committee, allows a municipality with a population under 25,000 to collect unpaid taxes on marijuana and controlled substances when they are seized during an arrest or found during a search. The bill provides that any unpaid taxes of this nature owed to a municipality constitute a lien against any property the dealer has in the municipality and are treated similarly to a property tax lien.