Diane E. Hoffmann, J.D., M.S. University of Maryland School of Law

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1 Diane E. Hoffmann, J.D., M.S. University of Maryland School of Law

2 States that have decriminalized medical marijuana

3 Characteristics of State Laws Allow patients to use and possess (and in most states cultivate) small quantities of marijuana for medical purposes Allow a patient s caregiver to possess (and in most cases cultivate), but NOT to use marijuana.

4 What is a Qualified Patient? Must be a resident in 13 out of 17 states and DC Must be diagnosed as having a: Debilitating medical condition Michigan, Montana, Arizona, Delaware, Nevada, New Jersey, New Mexico, Oregon, Vermont Serious Medical Condition Alaska, CA Qualifying Medical Condition DC Must have a written recommendation by a by a from a physician

5 What is a Qualified Patient? Might benefit from the medical use of marijuana Alaska, California, Colorado, Maine Potential benefits of medical use of marijuana likely to outweigh the health risk Hawaii, Montana, New Jersey, New Mexico, Rhode Island Likely to receive a therapeutic or palliative benefit Michigan, Delaware, Maryland, Arizona Marijuana may mitigate symptoms Nevada, Oregon

6 What is a Qualified Patient? Some states also require a bona fide physician patient relationship: The physician has taken a medical history of the patient and conducted a physical examination Alaska, Colorado, D.C., Maine, Montana, New Jersey, Rhode Island, Vermont The physician has considered other treatments before recommending medical marijuana Alaska, DC, NJ, MD

7 Conditions for Medical Marijuana HIV/AIDs Cachexia Cancer (or cancer treatment) Glaucoma Epilepsy and other seizure disorders Severe nausea Muscle spasms Chronic or severe pain Arthritis & migraines

8 Conditions for Medical Marijuana Agitation due to Alzheimer s Disease Michigan, Oregon, Arizona, Delaware Hepatitis C -New Mexico, Michigan, Rhode Island, Washington, Arizona, Delaware ALS -New Mexico, Delaware, Arizona and New Jersey Muscular Dystrophy New Jersey Terminal Illness, Hospice Patients New Jersey, New Mexico PTSD New Mexico, Delaware

9 Conditions for Medical Marijuana California: any other chronic or persistent medical condition if the condition substantially limits the ability of the patient to conduct one or more major life activities as defined by the ADA, or, if the condition is not alleviated, may compromise the patient s safety or cause serious harm to the patient s physical or mental health.

10 Definition of Caregiver Generally a caregiver must be: At least 18 (CO, DC, HI, ME, MT, OR, WA) Or 21 in some states (AK, DE, AZ, MI, RI, VT) Responsible for the well-being (health and safety) of the patient (CA, CO, NV, OR) In some states, the caregiver: Must be a member of the patient s family (ME) Never have been convicted of a felony (AK, AZ, DE) Or felony involving illegal drugs (MI, NJ, VT)

11 Legal Legal Possession Limit By By State State ounces mature plants immature plants DC 2 ounces, Delaware 6 ounces & Maryland 1 ounce

12 Limits Under the California Law Original Ballot Initiative (1996) Limit No limit (1996) An amount reasonably related to the patient s medical needs (1997, People v. Trippet) Statute (2003) 6 mature plants 12 immature plants 8 oz. Protection Affirmative Defense if prosecuted (2010, People v. Kelly) From arrest if registration card and within limits

13 Registration Most states have some type of registration and those who have a registration card are generally protected from arrest Other states allow for a patient to assert an affirmative defense of the medical use of marijuana In applying for a card, a patient must provide his or her name and address as well as contact information for his caregiver and physician

14 Affirmative Defense Defense against criminal charges available if User shows compliance with state law (WA) Patient does not have an ID card (CA, RI, Montana, MI, OR) Patient does not have an ID card and possesses amounts above specified amounts (Colorado, Nevada) Patients are using for a medical condition that is not enumerated in the law (Michigan)

15 Access to Marijuana Patient or caregiver can cultivate marijuana in most states (except NJ, DE, DC, and MD) About half of the states authorize some kind of dispensary by statute; other states are silent as to whether dispensaries are permitted. In many states, patients may have to resort to obtaining the drug from an illegal source

16 Concerns About Dispensaries

17 Los Angeles In 2007, City Council adopted moratorium on new dispensaries. No enforcement 500 to 1,000 dispensaries in city. In 2010, city limited number of dispensaries to 70 with specific limits and requirements. Lottery to choose which dispensaries continue to operate.

18 Montana Billings City Council approved temporary moratorium on new marijuana storefronts. Kalispell City Council banned new medical marijuana stores following attack.

19 STATES California Alaska Oregon Washington Maine Colorado Hawaii Nevada Montana Vermont Rhode Island New Mexico Michigan New Jersey Washington, DC Arizona Delaware Maryland Variation of State Medical Marijuana Laws DISPENSARIES ESTABLISEHD BY STATUTE? Allows for establishment of collectives and cooperatives No No No Allows for establishment of nonprofit dispensaries No No No No No Allows for compassion centers that can dispense marijuana No No Allows for up to six alternative treatment centers Allows for as many as eight facilities to dispense marijuana Allows for state-licensed nonprofit dispensaries Allows for registered nonprofit compassion centers No

20 Pushback by Dept. of Justice Numerous letters to governors in states that have decriminalized marijuana from regional US Attorneys Letters state that licensing schemes for the establishment of dispensaries or grow houses are illegal under CSA DoJ would consider civil and criminal legal remedies against those involved in such schemes and those engaging in such activities

21 Other Restrictions in State Laws Patients cannot use medical marijuana If it might endanger another person In plain view or in general public Where smoking is prohibited In close proximity of schools On a school bus While operating a vehicle In the workplace In a correctional facility

22 Americans with Disabilities Act (ADA) and Medical Marijuana Is the Employee a qualified individual with a disability? Must have a condition that substantially limits a major life activity, e.g., chronic pain Many conditions under state medical marijuana laws would probably meet the criteria May not actually be disabled but be regarded as disabled Individuals taking medical marijuana might meet the definition of regarded as disabled under the law

23 ADA Eligibility Is the person qualified to do the job? Must have the skills, experience, education necessary Must be able to perform the essential functions of the position Need to distinguish between using marijuana on the job and off the job May not be able to perform essential job functions if currently using May not pose a direct threat to the health or safety of other individuals in the workplace

24 Testing Positive on Drug Screen May be able to perform essential functions of the job if not using during work hours but test positive on drug test. Current illegal drug use is prohibited by ADA. Illegal drug use defined as the use of drugs which are unlawful under the CSA but does not include drugs taken under supervision by a licensed health care professional

25 ADA Cases Johnson v. Columbia Falls Aluminum Company (Supreme Court of Montana, 2009) Court relied on state Medical Marijuana Act which states that an Employer is not required to accommodate an employee s use of medical marijuana Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (Supreme Court of Oregon, 2010) Court determined that the portion of the State Medical Marijuana law that authorized its use was preempted by the CSA.

26 January 19, 2010 Researchers Find Study of Medical Marijuana Discouraged The more it becomes clear to people that the federal government is blocking efforts to move forward on rescheduling marijuana the more people are willing to defect by using politics instead of science to legalize medicinal uses at the state level. By GARDINER HARRIS

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