REPORT TITLE:
***


DESCRIPTION:
***

 
a                                                     HTH-43(99)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1038
THE SENATE                              S.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE MEDICAL USE OF MARIJUANA.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The purposes of this Act are to:
 
 2      (1)  Ensure that severely ill or terminally ill patients are
 
 3           not penalized by the State for obtaining and using
 
 4           marijuana strictly for medical purposes when such a
 
 5           patient's physician provides a written professional
 
 6           opinion which is corroborated by a second physician
 
 7           that marijuana is medically beneficial to the patient.
 
 8      (2)  Ensure that physicians are not penalized by the State
 
 9           for providing their written professional opinions on
 
10           the medical use of marijuana to treat severely ill or
 
11           terminally ill patients.
 
12      (3)  Ensure that compliance with this Act does not put the
 
13           State itself in violation of federal law.
 
14      (4)  Ensure that patients and physicians cannot procure
 
15           marijuana for nonmedical purposes, endanger the public,
 
16           or enable minors to use marijuana for medicinal
 
17           purposes without the written permission of their
 
18           parents or legal guardians.
 
19      (5)  Urge the federal government to modify the federal
 

 
a                                                     HTH-43(99)
Page 2                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           prohibition on the medical use of marijuana.
 
 2      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
 3 a new chapter to be appropriately designated and to read as
 
 4 follows:
 
 5                             "CHAPTER
 
 6                     MEDICAL USE OF MARIJUANA
 
 7      §    -1  Definitions.  As used in this chapter:
 
 8      "Adequate supply" means the possession of no more marijuana
 
 9 than is necessary for the qualifying patient's medical use, not
 
10 exceeding the amount necessary for a sixty-day supply.
 
11      "Department" means the department of public safety.
 
12      "Marijuana" means the seeds, leaves, buds, and flowers of
 
13 the plant (genus) cannabis, and any mixture or preparation
 
14 thereof.  The definition excludes the plant's stalks, stems, and
 
15 roots.
 
16      "Medical use" means the acquisition, possession,
 
17 cultivation, use, distribution, or transportation of marijuana or
 
18 paraphernalia relating to the administration of such marijuana to
 
19 alleviate the symptoms or effects of a qualifying patient's
 
20 severe or terminal illness.
 
21      "Parent" means the custodial mother or father of a
 
22 qualifying patient under the age of eighteen years, a person
 
23 having custody of a qualifying patient under the age of eighteen
 

 
a                                                     HTH-43(99)
Page 3                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1 years, or a person serving as the legal guardian for a qualifying
 
 2 patient under the age of eighteen years.
 
 3      "Physician" means a person who is licensed in the practice
 
 4 of medicine pursuant to chapter 453 and registered to prescribe
 
 5 controlled substances pursuant to chapter 329.
 
 6      "Primary caregiver" means a person, other than the
 
 7 qualifying patient and the qualifying patient's physician, who is
 
 8 eighteen years of age or older and has significant responsibility
 
 9 for managing the well-being of the qualifying patient.
 
10      "Qualifying patient" means a person who has been diagnosed
 
11 by a physician as having a severe or terminal illness.
 
12      "Written documentation" means statements signed by a
 
13 qualifying patient's physician and a corroborating second
 
14 physician, or copies of the qualifying patient's pertinent
 
15 medical records, which state that, in the physicians'
 
16 professional opinions, the potential benefits of the medical use
 
17 of marijuana would likely outweigh the health risks for a
 
18 particular qualifying patient.
 
19      §    -2  Exemption from criminal and civil penalties for the
 
20 medical use of marijuana.(a)  It shall be lawful for any
 
21 qualifying patient, who has obtained written documentation from
 
22 physicians in the context of a bona fide physician-patient
 
23 relationship, to engage in the medical use of marijuana if the
 

 
a                                                     HTH-43(99)
Page 4                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1 quantity of marijuana does not exceed an adequate supply.
 
 2      (b)  The department shall create and maintain a confidential
 
 3 registry of qualifying patients who have applied for and are
 
 4 entitled to receive a registry identification card according to
 
 5 the following criteria:
 
 6      (1)  No person shall be permitted to gain access to any
 
 7           information about patients in the department's
 
 8           confidential registry, or any information otherwise
 
 9           maintained by the department about physicians and
 
10           primary caregivers, except for authorized employees of
 
11           the State or local law enforcement agencies which have
 
12           stopped or arrested a person who claims to be engaged
 
13           in the medical use of marijuana and is in possession of
 
14           a registry identification card or a copy of the
 
15           completed application form.  Authorized employees of
 
16           State or local law enforcement agencies shall be
 
17           granted access to the information contained within the
 
18           department's confidential registry only for the purpose
 
19           of verifying that an individual who has presented a
 
20           registry identification card to a State or local law
 
21           enforcement official is lawfully in possession of such
 
22           card.
 
23      (2)  In order to be placed on the confidential registry for
 

 
a                                                     HTH-43(99)
Page 5                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           the medical use of marijuana, a patient must reside in
 
 2           Hawaii and shall submit a completed application form
 
 3           adopted by the department, which includes the following
 
 4           information:
 
 5           (A)  The original or a copy of written documentation
 
 6                stating that the patient has been diagnosed with a
 
 7                severe or terminal illness and the physician's
 
 8                opinion, corroborated by a second physician's
 
 9                written opinion that the patient might benefit
 
10                from the medical use of marijuana;
 
11           (B)  The name, address, date of birth, and social
 
12                security number of the patient;
 
13           (C)  The names, addresses, and telephone numbers of the
 
14                patient's physicians; and
 
15           (D)  The name, address, and telephone number of the
 
16                patient's primary caregiver, if one is designated
 
17                at the time of application.
 
18      (3)  Within thirty days of receiving the information, the
 
19           department shall verify medical information contained
 
20           in the patient's written documentation.  The department
 
21           shall notify the applicant that the application for a
 
22           registry identification card has been denied if the
 
23           department's review of such documentation discloses
 

 
a                                                     HTH-43(99)
Page 6                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           that:
 
 2           (A)  The information required has not been provided or
 
 3                has been falsified;
 
 4           (B)  The documentation fails to state that the patient
 
 5                has a severe or terminal illness; or
 
 6           (C)  Either physician is not licensed or registered
 
 7                pursuant to chapters 453 and 329, respectively.
 
 8           Otherwise, not more than five days after verifying such
 
 9           information, the department shall issue one serially
 
10           numbered registry identification card to the qualifying
 
11           patient, stating:
 
12           (A)  The qualifying patient's name, address, date of
 
13                birth, and social security number;
 
14           (B)  That the qualifying patient's name has been
 
15                certified to the department as a person who has a
 
16                severe or terminal illness, whereby the qualifying
 
17                patient may address such condition with the
 
18                medical use of marijuana;
 
19           (C)  The date of issuance of the registry
 
20                identification card and the date of expiration of
 
21                such card, which shall be one year from the date
 
22                of issuance; and
 
23           (D)  The name, address, and telephone number of the
 
24                patient's primary caregiver, if a person is
 
25                designated at the time of application.
 

a                                                     HTH-43(99)
Page 7                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1      (4)  Except for patients under eighteen years of age, where
 
 2           the department, within thirty-five days of receipt of
 
 3           an application, fails to issue a registry
 
 4           identification card or fails to issue verbal or written
 
 5           notice of denial of such application, the patient's
 
 6           application for such card will be deemed to have been
 
 7           approved.  Receipt shall be deemed to have occurred
 
 8           upon delivery to the department, or deposit in the
 
 9           United States mails.  A patient who is questioned by
 
10           any State or local law enforcement official about the
 
11           medical use of marijuana thirty days after an
 
12           application has been delivered to the department, shall
 
13           provide a copy of the application submitted to the
 
14           department, including the written documentation and
 
15           proof of the date of mailing or other transmission of
 
16           the written documentation for delivery to the
 
17           department, which shall be accorded the same legal
 
18           effect as a registry identification card, until such
 
19           time as the patient receives notice that the
 
20           application has been denied.
 
21      (5)  A patient whose application has been denied by the
 
22           department may not reapply during the six months
 
23           following the date of the denial and may not use an
 
24           application for a registry identification card as
 

 
a                                                     HTH-43(99)
Page 8                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           provided in section   -2(b)(4).  The denial of a
 
 2           registry identification card shall be considered a
 
 3           final departmental action.
 
 4      (6)  When there has been a change in the name, address,
 
 5           physician or physicians, or primary caregiver of a
 
 6           patient who has qualified for a registry identification
 
 7           card, that patient must notify the department in
 
 8           writing of any such change within ten days.  A patient
 
 9           who has not designated a primary caregiver at the time
 
10           of application to the department may do so in writing
 
11           at any time during the effective period of the registry
 
12           identification card, and the primary caregiver may act
 
13           in this capacity after such designation.  To maintain
 
14           an effective registry identification card, a qualifying
 
15           patient must annually resubmit, at least thirty days
 
16           prior to the expiration date stated on the registry
 
17           identification card, updated written documentation to
 
18           the department, as well as the name, address, and
 
19           telephone number of the patient's primary caregiver, if
 
20           a person is designated at such time.
 
21      (7)  Authorized employees of state or local law enforcement
 
22           agencies shall immediately notify the department when
 
23           any person in possession of a registry identification
 

 
a                                                     HTH-43(99)
Page 9                                                     1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           card has been determined by a court of law to have
 
 2           willfully violated the provisions of this section or
 
 3           its implementing legislation, or has pled guilty to
 
 4           such offense.
 
 5      (8)  A patient who no longer has a severe or terminal
 
 6           illness shall return his or her registry identification
 
 7           card to the department within twenty-four hours of
 
 8           receiving such diagnosis by his or her physician.
 
 9      (9)  The department may determine and assess reasonable fees
 
10           to pay for any direct or indirect costs incurred to
 
11           administer this chapter.
 
12      (c)  When the acquisition, possession, cultivation,
 
13 distribution, transportation, or administration of marijuana by a
 
14 qualifying patient is not practicable, the legal protections
 
15 established by this section for a qualifying patient shall extend
 
16 to the patient's primary caregiver.  Such protections for the
 
17 primary caregiver extend only insofar as the caregiver's actions
 
18 are necessary for the qualifying patient's medical use of
 
19 marijuana, and such actions shall be subject to the restrictions
 
20 listed in section    -5.
 
21      (d)  No physician shall be subject to arrest or prosecution,
 
22 penalized in any manner, or denied any right or privilege, for
 
23 providing a written professional opinion or written documentation
 

 
a                                                     HTH-43(99)
Page 10                                                    1038
                                     S.B. NO.           
                                                        
                                                        

 
 1 to a person, whom the physician has diagnosed as having a severe
 
 2 or terminal illness, about the potential risks and benefits of
 
 3 the medical use of marijuana; provided that the written
 
 4 professional opinion is based upon the physician's assessment of
 
 5 the person's medical history and current medical condition made
 
 6 in the course of a bona fide physician-patient relationship.
 
 7      (e)  In any legal proceeding in which rights or defenses
 
 8 created by this chapter are asserted, a physician called as a
 
 9 witness shall be permitted to testify before a judge in camera.
 
10 Such testimony, when introduced in a public proceeding, if the
 
11 physician witness so requests, shall have the name of the
 
12 physician redacted and the court shall maintain the name and
 
13 identifying characteristics of the physician under seal.
 
14      (f)  Any property interest that is possessed, owned, or used
 
15 in connection with the medical use of marijuana or acts
 
16 incidental to such use, shall not be harmed, neglected, injured,
 
17 or destroyed while in the possession of state law enforcement
 
18 officials where such property has been seized in connection with
 
19 the claimed medical use of marijuana.  Any such property interest
 
20 shall not be forfeited under any provision of state law providing
 
21 for the forfeiture of property other than as a sentence imposed
 
22 after conviction of a criminal offense.  Marijuana,
 

 
a                                                     HTH-43(99)
 
Page 11                                                    1038
                                     S.B. NO.           
                                                        
                                                        

 
 1 paraphernalia, and other property seized by state law enforcement
 
 2 officials from a qualifying patient or primary caregiver in
 
 3 connection with the claimed medical use of marijuana shall be
 
 4 returned immediately upon the determination of the court that the
 
 5 qualifying patient or primary caregiver is entitled to the
 
 6 protections contained in this chapter.
 
 7      (g)  No person shall be prosecuted for conspiracy or any
 
 8 other criminal offense solely for being in the presence or
 
 9 vicinity of the medical use of marijuana.
 
10      §    -3  Affirmative defense.  Any qualifying patient or
 
11 primary caregiver charged with a violation of state law related
 
12 to the claimed medical use of marijuana may raise as an
 
13 affirmative defense to the charge that the medical use is
 
14 authorized by section    -2 of this chapter and the affirmative
 
15 defense shall be presumed to be valid where the evidence shows
 
16 that:
 
17      (1)  The qualifying patient was diagnosed by a physician as
 
18           having a severe or terminal illness;
 
19      (2)  The physician, in the context of a bona fide physician-
 
20           patient relationship, has stated in writing that in the
 
21           physician's professional opinion as corroborated with a
 
22           second physician's written opinion, the potential
 
23           benefits of the medical use of marijuana would likely
 
24           outweigh the health risks for the particular qualifying
 

 
a                                                     HTH-43(99)
Page 12                                                    1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           patient; and
 
 2      (3)  The qualifying patient and primary caregiver were
 
 3           collectively in possession of a quantity of marijuana
 
 4           that does not exceed an adequate supply.
 
 5      §    -4  Additional restrictions.  In addition to meeting
 
 6 the conditions established in section    -3, qualifying patients
 
 7 under eighteen years of age may engage in the medical use of
 
 8 marijuana, provided the following conditions are met:
 
 9      (1)  The physician has explained the potential risks and
 
10           benefits of the medical use of marijuana to the
 
11           qualifying patient and at least one of the qualifying
 
12           patient's parents;
 
13      (2)  At least one of the qualifying patient's parents
 
14           affirms in writing that the parent consents to the
 
15           qualifying patient's medical use of marijuana; and
 
16      (3)  One of the qualifying patient's parents agrees in
 
17           writing to serve as the qualifying patient's primary
 
18           caregiver, and this primary caregiver controls the
 
19           acquisition of the marijuana and the dosage and
 
20           frequency of the medical use of marijuana by the
 
21           qualifying patient.
 
22      §    -5  Prohibitions, restrictions, and limitations.(a)
 
23 No qualifying patient shall engage in the medical use of
 

 
a                                                     HTH-43(99)
Page 13                                                    1038
                                     S.B. NO.           
                                                        
                                                        

 
 1 marijuana in a way that endangers the health or well-being of
 
 2 another person.
 
 3      (b)  No governmental, private, or any other health insurance
 
 4 provider shall be required to be liable for any claim for
 
 5 reimbursement for the medical use of marijuana.
 
 6      (c)  The accommodation of the medical use of marijuana shall
 
 7 not be required in any place of employment, in any school bus or
 
 8 on the grounds of any school or child care facility, or in any
 
 9 recreation or youth center.
 
10      (d)  Notwithstanding the foregoing provisions, no person,
 
11 including a qualifying patient or primary caregiver, shall be
 
12 entitled to the protections of this chapter for acquisition,
 
13 possession, cultivation, use, distribution, transportation, or
 
14 administration of marijuana for any use other than medical use."
 
15      SECTION 3.
 
16      (1)  The legislature finds that the State is not required to
 
17           enforce federal law or prosecute individuals for
 
18           engaging in activities prohibited by federal law.
 
19           Therefore, compliance with this Act does not put the
 
20           State in violation of federal law.
 
21      (2)  The State respectfully requests the United States
 
22           Congress and the President to enact appropriate
 
23           legislation to permit marijuana to be prescribed by
 

 
a                                                     HTH-43(99)
Page 14                                                    1038
                                     S.B. NO.           
                                                        
                                                        

 
 1           physicians and to allow the states to develop
 
 2           regulations to ensure a safe, affordable, and
 
 3           controlled supply of marijuana for medical use.
 
 4      (3)  Notice of the passage of this Act shall be transmitted
 
 5           within sixty days of enactment to the President and
 
 6           Vice President of the United States, to the Speaker of
 
 7           the United States House of Representative, and to the
 
 8           members of Hawaii's congressional delegation.
 
 9      SECTION 4.  If any provision of this Act, or the application
 
10 thereof to any person or circumstance is held invalid, the
 
11 invalidity does not affect other provisions or applications of
 
12 the Act which can be given effect without the invalid provision
 
13 or application, and to this end the provisions of this Act are
 
14 severable.
 
15      SECTION 5.  This Act shall take effect upon its approval.
 
16 
 
17                           INTRODUCED BY: ________________________
 

 
a                                                     HTH-43(99)