REPORT TITLE:
Medical Use of Marijuana


DESCRIPTION:
Allows for the acquisition, possession, cultivation,
distribution, transportation, administration, and use of
marijuana for medical purposes.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1341       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   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 serious illnesses.  Medical usage of marijuana has
 
 5 been permitted in California, Arizona, Oregon, Washington, and
 
 6 Alaska.  The legislature also finds that allowing the medical use
 
 7 of marijuana could promote Hawaii as being an international
 
 8 center for medical treatment and research.  Finally, although
 
 9 federal law makes this a somewhat gray area, the legislature
 
10 finds that a number of other states are taking the initiative in
 
11 this area and there is no reason why Hawaii should not join in
 
12 this initiative for the health and welfare of its citizens.  The
 
13 legislature further finds, however, that this Act and the policy
 
14 underlying it do not in any way diminish the State's strong
 
15 public policy and laws against illegal drug use.
 
16      The purpose of this Act is to ensure that seriously ill
 
17 patients are not penalized for the use of marijuana for strictly
 
18 medical purposes when the patient's treating physician provides a
 
19 professional opinion certifying that marijuana is medically
 

 
Page 2                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1 necessary for treatment of or to alleviate or manage pain or
 
 2 other symptoms associated with a debilitating medical condition.
 
 3      SECTION 2.  Chapter 329, Hawaii Revised Statutes, is amended
 
 4 by adding a new part to be appropriately designated and to read
 
 5 as follows:
 
 6                "PART   .  MEDICAL USE OF MARIJUANA
 
 7      329-A  Definitions.  As used in this part:
 
 8      "Adequate supply" means an amount of marijuana that is not
 
 9 more than is necessary to ensure, throughout the projected course
 
10 of treatment, the uninterrupted availability of marijuana for
 
11 purposes of treating or alleviating the pain or other symptoms
 
12 associated with a qualifying patient's debilitating medical
 
13 condition or the treatment of such a condition.
 
14      "Debilitating medical condition" means:
 
15      (1)  Cancer, glaucoma, positive status for human
 
16           immunodeficiency virus, acquired immune deficiency
 
17           syndrome, or the treatment of these conditions;
 
18      (2)  A chronic or debilitating disease or medical condition
 
19           or its treatment that produces one or more of the
 
20           following:  cachexia or wasting syndrome; severe pain;
 
21           severe nausea; seizures, including those characteristic
 
22           of epilepsy; or severe and persistent muscle spasms,
 
23           including those characteristic of multiple sclerosis;
 

 
Page 3                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1           or
 
 2      (3)  Any other medical condition approved by the department
 
 3           of health pursuant to administrative rules in response
 
 4           to a request from a physician or qualifying patient.
 
 5      "Marijuana" shall have the same meaning as provided in
 
 6 section 329-1.
 
 7      "Medical use" means the acquisition, possession,
 
 8 cultivation, use, distribution, or transportation of marijuana or
 
 9 paraphernalia relating to the administration of marijuana to
 
10 alleviate or manage the pain or other symptoms associated with a
 
11 qualifying patient's debilitating medical condition or the
 
12 treatment of such a condition.
 
13      "Parent, guardian, or person having legal custody" means the
 
14 custodial mother or father, the legal guardian, or any other
 
15 person having legal custody of the particular qualifying patient
 
16 under the age of eighteen years.
 
17      "Physician" means a person who is licensed under chapter 453
 
18 or 460.
 
19      "Primary caregiver" means a parent, guardian, or person
 
20 having legal custody who has agreed to undertake significant
 
21 responsibility for managing the well-being of the qualifying
 
22 patient with respect to the medical use of marijuana.
 
23      "Qualifying patient" means a person who has been diagnosed
 

 
Page 4                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1 by a physician as having a debilitating medical condition.
 
 2      "Written certification" means a statement signed and
 
 3 maintained by a qualifying patient's physician certifying that,
 
 4 in the physician's professional opinion:
 
 5      (1)  Marijuana is medically necessary for the treatment of
 
 6           or to alleviate pain or other symptoms associated with
 
 7           the patient's debilitating medical condition or
 
 8           treatment of the condition; and
 
 9      (2)  There exists no better legal alternative for this
 
10           purpose.
 
11      329-B  Medical use of marijuana; conditions of use.(a)
 
12 Notwithstanding any law to the contrary, the medical use of
 
13 marijuana by a qualifying patient, or the furnishing of marijuana
 
14 for medical use by the qualifying patient's primary caregiver, as
 
15 appropriate, shall be permitted if:
 
16      (1)  The qualifying patient has been diagnosed by a treating
 
17           physician as having a debilitating medical condition;
 
18      (2)  The physician has certified in writing that, in the
 
19           physician's professional opinion;
 
20           (A)  Marijuana is medically necessary for the treatment
 
21                of or to alleviate pain or other symptoms
 
22                associated with the qualifying patient's
 
23                debilitating medical condition or treatment of the
 

 
Page 5                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1                condition; and
 
 2           (B)  There exists no better legal alternative for this
 
 3                purpose.
 
 4      (3)  The amount of marijuana does not exceed an adequate
 
 5           supply.
 
 6      (b)  Subsection (a) shall not apply to a qualifying patient
 
 7 under the age of eighteen years, unless:
 
 8      (1)  The qualifying patient's physician has explained the
 
 9           potential risks and benefits of the medical use of
 
10           marijuana to the qualifying patient and to a parent,
 
11           guardian, or person having legal custody; and
 
12      (2)  A parent, guardian, or person having legal custody
 
13           consents in writing to:
 
14           (A)  Allow the qualified patient's medical use of
 
15                marijuana;
 
16           (B)  Serve as the qualifying patient's primary
 
17                caregiver; and
 
18           (C)  Control the acquisition of the marijuana and the
 
19                dosage and frequency of the medical use of
 
20                marijuana by the qualifying patient.
 
21      (c)  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 section.
 

 
Page 6                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1      (d)  The authorization for medical use of marijuana in this
 
 2 section shall not apply to:
 
 3      (1)  Medical use of marijuana that endangers the health or
 
 4           well-being of the qualifying patient or another person;
 
 5      (2)  Medical use of marijuana:  in a school bus or public
 
 6           bus; on any school grounds; or at any public park,
 
 7           public beach, public recreation center, recreation or
 
 8           youth center, or other place open to the public; and
 
 9      (3)  Use of marijuana by a qualifying patient, primary
 
10           caregiver, or parent, guardian, or person having legal
 
11           custody for purposes other than medical use as
 
12           certified to by the patient's physician.
 
13      329-C  Insurance not applicable.  This part shall not be
 
14 construed to require insurance coverage for the medical use of
 
15 marijuana.
 
16      329-D  Protections afforded treating physician.(a)  No
 
17 physician shall be subject to arrest or prosecution, penalized in
 
18 any manner, or denied any right or privilege for providing
 
19 written certification for medical use of marijuana for a
 
20 qualifying patient; provided that:
 
21      (1)  The physician has diagnosed the patient as having a
 
22           debilitating medical condition, as defined in section
 
23           329-A;
 

 
Page 7                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1      (2)  The physician has explained about the potential risks
 
 2           and benefits of the medical use of marijuana, as
 
 3           required under section 329-B(b)(1), if applicable; and
 
 4      (3)  The certification is based upon the physician's
 
 5           professional opinion after having completed a full
 
 6           assessment of the patient's medical history and current
 
 7           medical condition made in the course of a bona fide
 
 8           physician-patient relationship.
 
 9      (b)  In any criminal proceeding involving rights or defenses
 
10 created by this part in which a physician is called to testify,
 
11 upon the request of the physician:
 
12      (1)  Testimony by the physician shall be given in camera;
 
13           and
 
14      (2)  If the testimony is subsequently used in a public
 
15           proceeding, whether criminal or civil, the name of the
 
16           physician shall not be disclosed.
 
17      329-E  Protection of marijuana and other property.
 
18 Marijuana and any property used in connection with the medical
 
19 use of marijuana shall not be subject to search or seizure.
 
20 Marijuana, paraphernalia, or other property seized from a
 
21 qualifying patient or primary caregiver in connection with
 
22 claimed medical use under this part shall be returned immediately
 
23 upon the determination by a court that the qualifying patient or
 

 
Page 8                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1 primary caregiver is entitled to the protections of this part, as
 
 2 evidenced by a decision not to prosecute, dismissal of charges,
 
 3 or an acquittal.
 
 4      329-F  Affirmative defense.  A qualifying patient or
 
 5 primary caregiver may assert medical use of marijuana as an
 
 6 affirmative defense to any prosecution involving marijuana under
 
 7 this chapter or chapter 712; provided that:
 
 8      (1)  There was strict compliance with this part;
 
 9      (2)  The qualifying patient's physician, in the context of a
 
10           bona fide physician-patient relationship, has certified
 
11           in writing that, in the physician's professional
 
12           opinion:
 
13           (A)  Marijuana is medically necessary for the treatment
 
14                of or to alleviate pain or other symptoms
 
15                associated with the qualifying patient's
 
16                debilitating medical condition or treatment of the
 
17                condition; and
 
18           (B)  There exists no better legal alternative for this
 
19                purpose.
 
20      (3)  The quantity of marijuana involved did not exceed a
 
21           adequate supply.
 
22      329-G  Fraudulent misrepresentation; penalty.  Fraudulent
 
23 misrepresentation to a law enforcement officer of any fact or
 

 
Page 9                                                     
                                     H.B. NO.1341       
                                                        
                                                        


 1 circumstance relating to medical use of marijuana to avoid arrest
 
 2 or prosecution under this chapter or chapter 712 is a petty
 
 3 misdemeanor, provided the maximum fine imposed shall be $500.
 
 4 This penalty shall be in addition to any other penalties that may
 
 5 apply for the non-medical use of marijuana.  Nothing in this
 
 6 section is intended to preclude the conviction of any person
 
 7 under section 710-1060 or for any other offense under part V of
 
 8 chapter 710."
 
 9      SECTION 3.  Chapter 712, Hawaii Revised Statutes, is amended
 
10 by adding a new section to part IV, to be appropriately
 
11 designated and to read as follows:
 
12      "712-    Medical use of marijuana.  No provision of this
 
13 part that applies to marijuana shall be construed to be violated
 
14 due to the medical use of marijuana in strict accordance with
 
15 part      of chapter 329."
 
16      SECTION 4.  Section 453-8, Hawaii Revised Statutes, is
 
17 amended by amending subsection (a) to read as follows:
 
18      "(a)  In addition to any other actions authorized by law,
 
19 any license to practice medicine and surgery may be revoked,
 
20 limited, or suspended by the board at any time in a proceeding
 
21 before the board, or may be denied, for any cause authorized by
 
22 law, including but not limited to the following:
 
23      (1)  Procuring, or aiding or abetting in procuring, a
 

 
Page 10                                                    
                                     H.B. NO.1341       
                                                        
                                                        


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

 
Page 11                                                    
                                     H.B. NO.1341       
                                                        
                                                        


 1           bodily injury to another, or manifest incapacity in the
 
 2           practice of medicine or surgery;
 
 3      (8)  Incompetence or multiple instances of negligence,
 
 4           including, but not limited to, the consistent use of
 
 5           medical service which is inappropriate or unnecessary;
 
 6      (9)  Conduct or practice contrary to recognized standards of
 
 7           ethics of the medical profession as adopted by the
 
 8           Hawaii Medical Association or the American Medical
 
 9           Association;
 
10     (10)  Violation of the conditions or limitations upon which a
 
11           limited or temporary license is issued;
 
12     (11)  Revocation, suspension, or other disciplinary action by
 
13           another state or federal agency of a license,
 
14           certificate, or medical privilege for reasons as
 
15           provided in this section;
 
16     (12)  Conviction, whether by nolo contendere or otherwise, of
 
17           a penal offense substantially related to the
 
18           qualifications, functions, or duties of a physician,
 
19           notwithstanding any statutory provision to the
 
20           contrary;
 
21     (13)  Violation of chapter 329, the uniform controlled
 
22           substances act, or any rule adopted thereunder[;],
 
23           except as provided under part      of chapter 329;
 

 
Page 12                                                    
                                     H.B. NO.1341       
                                                        
                                                        


 1     (14)  Failure to report to the board, in writing, any
 
 2           disciplinary decision issued against the licensee or
 
 3           the applicant in another jurisdiction within thirty
 
 4           days after the disciplinary decision is issued; or
 
 5     (15)  Submitting to or filing with the board any notice,
 
 6           statement, or other document required under this
 
 7           chapter[, which] that is false or untrue or contains
 
 8           any material misstatement or omission of fact."
 
 9      SECTION 5.  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 6.  In codifying the new sections added by section 2
 
16 of this Act, the revisor of statutes shall substitute appropriate
 
17 section numbers for the letters used in the new sections
 
18 designated in this Act.
 
19      SECTION 7.  Statutory material to be repealed is bracketed.
 
20 New statutory material is underscored.
 
21      SECTION 8.  This Act shall take effect upon its approval.
 
22 
 
23                              INTRODUCED BY:______________________
 

 
Page 13                                                    
                                     H.B. NO.1341       
                                                        
                                                        


 1