PART IX. MEDICAL USE OF CANNABIS

 

Note

 

Part heading amended by L 2017, c 170, 2.

Conforming amendments to title 11 of the Hawaii administrative rules; department of health to make conforming revisions to all documents, letterhead, websites, etc. by December 31, 2019. L 2017, c 170, 3, 4.

Legislative oversight working group; improvement of the medical marijuana dispensary system (ceases to exist June 30, 2018); reports to 2017-2018 legislature. L 2016, c 230, 23.

Medical marijuana alternate tracking system; report to 2018 legislature. L 2017, c 41, 12.

 

Cross References

 

Medical cannabis; economic and other data; collection, see 201-13.9.

Medical cannabis; tenant use; eviction, see 521-39.

Medical cannabis testing and research programs, see 304A-1865.

 

Law Journals and Reviews

 

Gonzales v. Raich: How the Medical Marijuana Debate Invoked Commerce Clause Confusion. 28 UH L. Rev. 261.

 

Case Notes

 

District court erred in re-determining the fact of medical use in contrast to the parties' stipulation that petitioner possessed and transported medical marijuana under a valid Medical Marijuana Registry Patient Identification Certificate, thus preempting consideration of petitioner's affirmative defense; given that the State presented no evidence showing that the marijuana was for any other use other than a medical use, petitioner proved that petitioner was authorized to possess marijuana for medical purposes pursuant to this part for purposes of an affirmative defense under 712-1240.1(2). 129 H. 397, 301 P.3d 607 (2013).

 

329-121 Definitions. As used in this part:

"Adequate supply" means an amount of medical cannabis jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed: ten cannabis plants, whether immature or mature, and four ounces of usable cannabis at any given time. The four ounces of usable cannabis shall include any combination of usable cannabis and manufactured cannabis products, as provided in chapter 329D, with the cannabis in the manufactured cannabis products being calculated using information provided pursuant to section 329D‑9(c).

"Advanced practice registered nurse" means an advanced practice registered nurse with prescriptive authority as described in section 457-8.6 and registered under section 329-32.

"Cannabis" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712-1240.

"Debilitating medical condition" means:

(1) Cancer, glaucoma, lupus, epilepsy, multiple sclerosis, rheumatoid arthritis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(A) Cachexia or wasting syndrome;

(B) Severe pain;

(C) Severe nausea;

(D) Seizures, including those characteristic of epilepsy;

(E) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(F) Post-traumatic stress disorder; or

(3) Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or advanced practice registered nurse or potentially qualifying patient.

"Medical use" means the acquisition, possession, cultivation, use, distribution, or transportation of cannabis or paraphernalia relating to the administration of cannabis to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition. For the purposes of "medical use", the term distribution is limited to the transfer of cannabis and paraphernalia.

"Physician" means a person who is licensed to practice under chapter 453 and is licensed with authority to prescribe drugs and is registered under section 329-32. "Physician" does not include a physician assistant as described in section 453-5.3.

"Primary caregiver" means a person eighteen years of age or older, other than the qualifying patient and the qualifying patient's physician or advanced practice registered nurse, who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of cannabis. In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.

"Qualifying patient" means a person who has been diagnosed by a physician or advanced practice registered nurse as having a debilitating medical condition.

"Usable cannabis" means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for the medical use of cannabis. "Usable cannabis" does not include the seeds, stalks, and roots of the plant.

"Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician or advanced practice registered nurse, stating that in the physician's or advanced practice registered nurse's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of cannabis would likely outweigh the health risks for the qualifying patient. The department of health may require, through its rulemaking authority, that all written certifications comply with a designated form. "Written certifications" are valid for only one year from the time of signing. [L 2000, c 228, pt of 2; am L 2009, c 11, 43 and c 169, 7; am L 2010, c 57, 4; am L 2013, c 178, 2; am L 2015, c 241, 6; am L 2016, c 230, 7; am L 2017, c 41, 2 and c 170, 2]

 

Revision Note

 

Definitions of "adequate supply", "cannabis", "medical use", and "usable cannabis": "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.

 

Case Notes

 

Rule of lenity required the construction, under the specific facts of the case, of 329-122 and 329-125 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under this section, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [329-122(c)(2)(E)]; thus, under 701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability. 129 H. 397, 301 P.3d 607 (2013).

 

 

Previous Vol06_Ch0321-0344 Next