REPORT TITLE:
Medical Use of Marijuana


DESCRIPTION:
Allows for the acquisition, possession, and use of marijuana for
medical purposes.  (SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        862
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                   A  BILL  FOR  AN  ACT

RELATING TO MEDICAL USE OF MARIJUANA. 


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

 1      SECTION 1.  The legislature finds that modern medical
 
 2 research has discovered a beneficial use for marijuana in
 
 3 treating or alleviating the pain or other symptoms associated
 
 4 with certain debilitating illnesses such as cancer, glaucoma,
 
 5 human immunodeficiency virus, acquired immune deficiency
 
 6 syndrome, multiple sclerosis, epilepsy, and crohn's disease.
 
 7 There is sufficient medical and anecdotal evidence to support the
 
 8 proposition that these diseases and conditions may respond
 
 9 favorably to a medically controlled use of marijuana.
 
10      The legislature is aware of the legal problems associated
 
11 with the legal acquisition of marijuana for medical use.
 
12 However, the legislature believes that medical scientific
 
13 evidence on the medicinal benefits of marijuana should be
 
14 recognized.  Although federal law expressly prohibits the use of
 
15 marijuana, the legislature recognizes that a number of states are
 
16 taking the initiative in legalizing the use of marijuana for
 
17 medical purposes.  Voter initiatives permitting the medical use
 
18 of marijuana have passed in California, Arizona, Oregon,
 
19 Washington, Alaska, Maine, and the District of Columbia.  
 
20      The legislature intends to join in this initiative for the 
 

 
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 1 health and welfare of its citizens.  However, the legislature
 
 2 does not intend to legalize marijuana for other than medical
 
 3 purposes.  The passage of this Act and the policy underlying it
 
 4 does not in any way diminish the legislature's strong public
 
 5 policy and laws against illegal drug use.
 
 6      Therefore, the purpose of this Act is to ensure that
 
 7 seriously ill people are not penalized by the State for the use
 
 8 of marijuana for strictly medical purposes when the patient's
 
 9 treating physician provides a professional opinion that the
 
10 benefits of medical use of marijuana would likely outweigh the
 
11 health risks for the qualifying patient.  
 
12      SECTION 2.  Chapter 329, Hawaii Revised Statutes is amended
 
13 by adding a new part to be appropriately designated and to read
 
14 as follows:
 
15                           "PART    .
 
16                     MEDICAL USE OF MARIJUANA
 
17      §329-A  Definitions.  As used in this part:
 
18      "Adequate supply" means an amount of marijuana that is not
 
19 more than reasonably necessary to assure, throughout the
 
20 projected course of treatment, the uninterrupted availability of
 
21 marijuana for purposes of treating or alleviating the pain or
 
22 other symptoms associated with a qualifying patient's
 
23 debilitating medical condition or the treatment of such
 

 
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 1 condition; provided that an "adequate supply" shall be between 1
 
 2 ounce and 10.5 ounces, but no more than a sixty-day supply.
 
 3      "Debilitating medical condition" means:
 
 4      (1)  Cancer, glaucoma, positive status for human
 
 5           immunodeficiency virus, acquired immune deficiency
 
 6           syndrome, or the treatment of these conditions;
 
 7      (2)  A chronic or debilitating disease or medical condition
 
 8           or its treatment that produces one or more of the
 
 9           following:  
 
10           (A)  Cachexia or wasting syndrome; 
 
11           (B)  Severe pain; 
 
12           (C)  Severe nausea;
 
13           (D)  Seizures, including those characteristic of
 
14                epilepsy; or 
 
15           (E)  Severe and persistent muscle spasms, including
 
16                those characteristic of multiple sclerosis or
 
17                crohn's disease; or
 
18      (3)  Any other medical condition approved by the department
 
19           of health pursuant to administrative rules in response
 
20           to a request from a physician or qualifying patient.
 
21      "Marijuana" shall have the same meaning as "marijuana" and
 
22 "marijuana concentrate" as provided in sections 329-1 and 712-
 
23 1240.
 

 
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 1      "Medical use" means the acquisition, possession,
 
 2 cultivation, use, distribution, or transportation of marijuana or
 
 3 paraphernalia relating to the administration of marijuana to
 
 4 alleviate the symptoms or effects of a qualifying patient's
 
 5 debilitating medical condition.
 
 6      "Physician"  or "treating physician" means a person who is
 
 7 licensed under chapters 453 and 460.
 
 8      "Primary caregiver" means a person, other than the
 
 9 qualifying patient and the qualifying patient's physician, who is
 
10 eighteen years of age or older who has agreed to undertake
 
11 significant responsibility for managing the well-being of no more
 
12 than three qualifying patients at any one time with respect to
 
13 the medical use of marijuana.  In the case of a minor or an adult
 
14 lacking legal capacity, the primary caregiver shall be a parent,
 
15 guardian, or person having legal custody.
 
16      "Qualifying patient" means a person who has been diagnosed
 
17 by a physician as having a debilitating medical condition.
 
18      "Written certification" means the qualifying patient's
 
19 medical records or a statement signed by a qualifying patient's
 
20 physician, stating that in the physician's professional opinion,
 
21 the qualifying patient has a debilitating medical condition and
 
22 the potential benefits of the medical use of marijuana would
 
23 likely outweigh the health risks for the qualifying patient.
 

 
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 1      §329-B  Medical use of marijuana; conditions of use.(a)
 
 2 Notwithstanding any law to the contrary, the medical use of
 
 3 marijuana by a qualifying patient, or the furnishing of marijuana
 
 4 for medical use by the qualifying patient's primary caregiver
 
 5 pursuant to this chapter, shall be permitted only if:
 
 6      (1)  The qualifying patient has been diagnosed by a
 
 7           physician as having a debilitating medical condition;
 
 8      (2)  The qualifying patient's physician has certified in
 
 9           writing that, in the physician's professional opinion,
 
10           the potential benefits of the medical use of marijuana
 
11           would likely outweigh the health risks for the
 
12           particular qualifying patient; and
 
13      (3)  The amount of marijuana does not exceed an adequate
 
14           supply.
 
15      (b)  Subsection (a) shall not apply to a qualifying patient
 
16 under the age of eighteen years, unless:
 
17      (1)  The qualifying patient's physician has explained the
 
18           potential risks and benefits or the medical use of
 
19           marijuana to the qualifying patient and to a parent,
 
20           guardian, or person having legal custody; and
 
21      (2)  A parent, guardian, or person having legal custody
 
22           consents in writing to:
 
23           (A)  Allow the qualified patient's medical use of
 

 
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 1                marijuana; 
 
 2           (B)  Serve as the qualifying patient's primary
 
 3                caregiver; and 
 
 4           (C)  Control the acquisition of the marijuana, the
 
 5                dosage, and the frequency of the medical use of
 
 6                marijuana by the qualifying patient.
 
 7      (c)  The authorization for medical use of marijuana in this
 
 8 section shall not apply to:
 
 9      (1)  Medical use of marijuana that endangers the health or
 
10           well-being of another person;
 
11      (2)  Medical use of marijuana:
 
12           (A)  In a school bus, public bus, or any moving
 
13                vehicle; 
 
14           (B)  In the workplace of one's employment;
 
15           (C)  On any school grounds;
 
16           (D)  At any public park, public beach, public
 
17                recreation center, recreation or youth center; or
 
18           (E)  Other place open to the public; and
 
19      (3)  Use of marijuana by a qualifying patient, parent, or
 
20           primary caregiver for purposes other than medical use
 
21           permitted by this chapter.
 
22      §329-C  Registration requirements.(a) The qualifying
 
23 patient shall register with, and provide a copy of the written
 

 
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 1 certification to, the department of health within ten working
 
 2 days of receipt of the written certification by the treating
 
 3 physician.  The department of health shall issue to the
 
 4 qualifying patient a registration certificate, and may charge a
 
 5 reasonable fee, not to exceed $25.  
 
 6      (b)  Upon an inquiry by a law enforcement agency, the
 
 7 department of health shall verify whether the particular
 
 8 qualifying patient has registered with the department and may
 
 9 provide reasonable access to the registry information for
 
10 official law enforcement purposes.
 
11      §329-D  Insurance not applicable.  This part shall not be
 
12 construed to require insurance coverage for the medical use of
 
13 marijuana.
 
14      §329-E  Protections afforded to a qualifying patient or
 
15 primary caregiver. (a)  A qualifying patient or the primary
 
16 caregiver may assert medical use of marijuana as an affirmative
 
17 defense to any prosecution involving marijuana under this chapter
 
18 or chapter 712; provided that the qualifying patient or the
 
19 primary caregiver strictly complied with the requirements of this
 
20 part.
 
21      (b)  No person shall be subject to arrest or prosecution for
 
22 being in the presence or vicinity of the medical use of marijuana
 
23 as permitted under this part.
 

 
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 1      §329-F  Protections afforded to a treating physician.  No
 
 2 physician shall be subject to arrest or prosecution, penalized in
 
 3 any manner, or denied any right or privilege for providing
 
 4 written certification for the medical use of marijuana for a
 
 5 qualifying patient; provided that:
 
 6      (1)  The physician has diagnosed the patient as having a
 
 7           debilitating medical condition, as defined in section
 
 8           329-A;
 
 9      (2)  The physician has explained the potential risks and
 
10           benefits of the medical use of marijuana, as required
 
11           under section 329-B; and
 
12      (3)  The certification is based upon the physician's
 
13           professional opinion after having completed a full
 
14           assessment of the patient's medical history and current
 
15           medical condition made in the course of a bona fide
 
16           physician-patient relationship.
 
17      §329-G  Protection of marijuana and other seized property.
 
18 Marijuana and any property used in connection with the medical
 
19 use of marijuana shall not be subject to search and seizure.
 
20 Marijuana, paraphernalia, or other property seized from a
 
21 qualifying patient or primary caregiver in connection with
 
22 claimed medical use of marijuana under this part shall be
 
23 returned immediately upon the determination by a court that the
 

 
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 1 qualifying patient or primary caregiver is entitled to the
 
 2 protections of this part, as evidenced by a decision not to
 
 3 prosecute, dismissal of charges, or an acquittal; provided that
 
 4 law enforcement agencies seizing live plants as evidence shall
 
 5 not be responsible for the care and maintenance of such plants.
 
 6      §329-H  Fraudulent misrepresentation; penalty.
 
 7 Notwithstanding any other law to the contrary, fraudulent
 
 8 misrepresentation to a law enforcement official of any fact or
 
 9 circumstance relating to the medical use of marijuana in order to
 
10 avoid arrest or prosecution under this part or chapter 712 shall
 
11 be a petty misdemeanor and subject to a fine of $500.
 
12      SECTION 3.  Section 453-8, Hawaii Revised Statutes, is
 
13 amended by amending subsection (a) to read as follows:  
 
14      "(a)  In addition to any other actions authorized by law,
 
15 any license to practice medicine and surgery may be revoked,
 
16 limited, or suspended by the board at any time in a proceeding
 
17 before the board, or may be denied, for any cause authorized by
 
18 law, including but not limited to the following:
 
19      (1)  Procuring, or aiding or abetting in procuring, a
 
20           criminal abortion;
 
21      (2)  Employing any person to solicit patients for one's
 
22           self;
 
23      (3)  Engaging in false, fraudulent, or deceptive
 

 
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 1           advertising, including, but not limited to:
 
 2           (A)  Making excessive claims of expertise in one or
 
 3                more medical specialty fields;
 
 4           (B)  Assuring a permanent cure for an incurable
 
 5                disease; or
 
 6           (C)  Making any untruthful and improbable statement in
 
 7                advertising one's medical or surgical practice or
 
 8                business;
 
 9      (4)  Being habituated to the excessive use of drugs or
 
10           alcohol; or being addicted to, dependent on, or a
 
11           habitual user of a narcotic, barbiturate, amphetamine,
 
12           hallucinogen, or other drug having similar effects;
 
13      (5)  Practicing medicine while the ability to practice is
 
14           impaired by alcohol, drugs, physical disability, or
 
15           mental instability;
 
16      (6)  Procuring a license through fraud, misrepresentation,
 
17           or deceit or knowingly permitting an unlicensed person
 
18           to perform activities requiring a license;
 
19      (7)  Professional misconduct, hazardous negligence causing
 
20           bodily injury to another, or manifest incapacity in the
 
21           practice of medicine or surgery;
 
22      (8)  Incompetence or multiple instances of negligence,
 
23           including, but not limited to, the consistent use of
 

 
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 1           medical service which is inappropriate or unnecessary;
 
 2      (9)  Conduct or practice contrary to recognized standards of
 
 3           ethics of the medical profession as adopted by the
 
 4           Hawaii Medical Association or the American Medical
 
 5           Association;
 
 6     (10)  Violation of the conditions or limitations upon which a
 
 7           limited or temporary license is issued;
 
 8     (11)  Revocation, suspension, or other disciplinary action by
 
 9           another state or federal agency of a license,
 
10           certificate, or medical privilege for reasons as
 
11           provided in this section;
 
12     (12)  Conviction, whether by nolo contendere or otherwise, of
 
13           a penal offense substantially related to the
 
14           qualifications, functions, or duties of a physician,
 
15           notwithstanding any statutory provision to the
 
16           contrary;
 
17     (13)  Violation of chapter 329, the uniform controlled
 
18           substances act, or any rule adopted thereunder[;]
 
19           except as provided in section 329-B;
 
20     (14)  Failure to report to the board, in writing, any
 
21           disciplinary decision issued against the licensee or
 
22           the applicant in another jurisdiction within thirty
 
23           days after the disciplinary decision is issued; or
 

 
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 1     (15)  Submitting to or filing with the board any notice,
 
 2           statement, or other document required under this
 
 3           chapter, which is false or untrue or contains any
 
 4           material misstatement or omission of fact."
 
 5      SECTION 4.  Section 712-1240.1, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "§712-1240.1  Defense to promoting.  (1) It is a defense to
 
 8 prosecution for any offense defined in this part that the person
 
 9 who possessed or distributed the dangerous, harmful, or
 
10 detrimental drug did so under authority of law as a practitioner,
 
11 as an ultimate user of the drug pursuant to a lawful
 
12 prescription, or as a person otherwise authorized by law.
 
13      (2) It is an affirmative defense to prosecution for any
 
14 marijuana-related offense defined in this part that the person
 
15 who possessed or distributed the marijuana was authorized to
 
16 possess or distribute the marijuana for medical purposes pursuant
 
17 to part    of chapter 329."
 
18      SECTION 5.  This Act shall not affect rights and duties that
 
19 matured, penalties that were incurred, and proceedings that were
 
20 begun, before its effective date.
 
21      SECTION 6.  If any provision of this Act, or the application
 
22 thereof to any person or circumstance is held invalid, the
 
23 invalidity does not affect other provisions or applications of
 

 
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 1 the Act which can be given effect without the invalid provision
 
 2 or application, and to this end the provisions of this Act are
 
 3 severable.
 
 4      SECTION 7.  In codifying the new sections added section 2,
 
 5 and referred to in sections 3 and 4 of this Act, the revisor of
 
 6 statutes shall substitute the appropriate section numbers for the
 
 7 letters used in designating the new sections of this Act.
 
 8      SECTION 8.  Statutory material to be repealed is bracketed.
 
 9 New statutory material is underscored.
 
10      SECTION 9.  This Act shall take effect upon its approval.
 
11