Medical Use of Marijuana

Allows for the acquisition, possession, and use of marijuana for
medical purposes.  (SB862 HD1)

THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 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.  There is sufficient medical
 5 and anecdotal evidence to support the proposition that these
 6 diseases and conditions may respond favorably to a medically
 7 controlled use of marijuana.
 8      The legislature is aware of the legal problems associated
 9 with the legal acquisition of marijuana for medical use.
10 However, the legislature believes that medical scientific
11 evidence on the medicinal benefits of marijuana should be
12 recognized.  Although federal law expressly prohibits the use of
13 marijuana, the legislature recognizes that a number of states are
14 taking the initiative in legalizing the use of marijuana for
15 medical purposes.  Voter initiatives permitting the medical use
16 of marijuana have passed in California, Arizona, Oregon,
17 Washington, Alaska, Maine, Nevada, and the District of Columbia.  
18      The legislature intends to join in this initiative for the
19 health and welfare of its citizens.  However, the legislature
20 does not intend to legalize marijuana for other than medical

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 1 purposes.  The passage of this Act and the policy underlying it
 2 does not in any way diminish the legislature's strong public
 3 policy and laws against illegal drug use.
 4      Therefore, the purpose of this Act is to ensure that
 5 seriously ill people are not penalized by the State for the use
 6 of marijuana for strictly medical purposes when the patient's
 7 treating physician provides a professional opinion that the
 8 benefits of medical use of marijuana would likely outweigh the
 9 health risks for the qualifying patient.  
10      SECTION 2.  Chapter 329, Hawaii Revised Statutes, is amended
11 by adding a new part to be appropriately designated and to read
12 as follows:
13              "PART    .  MEDICAL USE OF MARIJUANA
14      329-A  Definitions.  As used in this part:
15      "Adequate supply" means an amount of marijuana jointly
16 possessed between the qualifying patient and the primary
17 caregiver that is not more than is reasonably necessary to assure
18 the uninterrupted availability of marijuana for the purpose of
19 alleviating the symptoms or effects of a qualifying patient's
20 debilitating medical condition; provided that an "adequate
21 supply" shall not exceed three mature marijuana plants, four
22 immature marijuana plants, and one ounce of usable marijuana per
23 each mature plant.

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 1      "Debilitating medical condition" means:
 2      (1)  Cancer, glaucoma, positive status for human
 3           immunodeficiency virus, acquired immune deficiency
 4           syndrome, or the treatment of these conditions;
 5      (2)  A chronic or debilitating disease or medical condition
 6           or its treatment that produces one or more of the
 7           following:  
 8           (A)  Cachexia or wasting syndrome; 
 9           (B)  Severe pain; 
10           (C)  Severe nausea;
11           (D)  Seizures, including those characteristic of
12                epilepsy; or 
13           (E)  Severe and persistent muscle spasms, including
14                those characteristic of multiple sclerosis or
15                Crohn's disease;
16           or
17      (3)  Any other medical condition approved by the department
18           of health pursuant to administrative rules in response
19           to a request from a physician or potentially qualifying
20           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.  For the purposes of "medical
 6 use", the term distribution is limited to the transfer of
 7 marijuana and paraphernalia from the primary caregiver to the
 8 qualifying patient.
 9      "Physician" means a person who is licensed under
10 chapters 453 and 460, and is licensed with authority to prescribe
11 drugs and is registered under section 329-32.  "Physician" does
12 not include physician's assistant as described in section 453-
13 5.3.
14      "Primary caregiver" means a person, other than the
15 qualifying patient and the qualifying patient's physician, who is
16 eighteen-years-of-age or older who has agreed to undertake
17 responsibility for managing the well-being of the qualifying
18 patient with respect to the medical use of marijuana.  In the
19 case of a minor or an adult lacking legal capacity, the primary
20 caregiver shall be a parent, guardian, or person having legal
21 custody.
22      "Qualifying patient" means a person who has been diagnosed
23 by a physician as having a debilitating medical condition.

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 1      "Usable marijuana" means the dried leaves and flowers of the
 2 plant Cannabis family Moraceae, and any mixture of preparation
 3 thereof, that are appropriate for the medical use of marijuana.
 4 "Usable marijuana" does not include the seeds, stalks, and roots
 5 of the plant.
 6      "Written certification" means the qualifying patient's
 7 medical records or a statement signed by a qualifying patient's
 8 physician, stating that in the physician's professional opinion,
 9 the qualifying patient has a debilitating medical condition and
10 the potential benefits of the medical use of marijuana would
11 likely outweigh the health risks for the qualifying patient.  The
12 department of public safety may require, through its rulemaking
13 authority, that all written certifications comply with a
14 designated form.  "Written certifications" are valid for only one
15 year from the time of signing.
16      329-B  Medical use of marijuana; conditions of use.(a)
17 Notwithstanding any law to the contrary, the medical use of
18 marijuana by a qualifying patient shall be permitted only if:
19      (1)  The qualifying patient has been diagnosed by a
20           physician as having a debilitating medical condition;
21      (2)  The qualifying patient's physician has certified in
22           writing that, in the physician's professional opinion,
23           the potential benefits of the medical use of marijuana

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 1           would likely outweigh the health risks for the
 2           particular qualifying patient; and
 3      (3)  The amount of marijuana does not exceed an adequate
 4           supply.
 5      (b)  Subsection (a) shall not apply to a qualifying patient
 6 under the age of eighteen years, unless:
 7      (1)  The qualifying patient's physician has explained the
 8           potential risks and benefits of the medical use of
 9           marijuana to the qualifying patient and to a parent,
10           guardian, or person having legal custody of the
11           qualifying patient; and
12      (2)  A parent, guardian, or person having legal custody
13           consents in writing to:
14           (A)  Allow the qualifying patient's the 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, the
19                dosage, and the frequency of the medical use of
20                marijuana by the qualifying patient.
21      (c)  The authorization for the medical use of marijuana in
22 this section shall not apply to:

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 1 \    (1)  The medical use of marijuana that endangers the health
 2           or well-being of another person;
 3      (2)  The medical use of marijuana:
 4           (A)  In a school bus, public bus, or any moving
 5                vehicle; 
 6           (B)  In the workplace of one's employment;
 7           (C)  On any school grounds;
 8           (D)  At any public park, public beach, public
 9                recreation center, recreation or youth center; or
10           (E)  Other place open to the public;
11           and
12      (3)  The use of marijuana by a qualifying patient, parent,
13           or primary caregiver for purposes other than medical
14           use permitted by this chapter.
15      329-C  Registration requirements.(a) Physicians who issue
16 written certification shall register the names, addresses,
17 patient identification numbers, and other identifying information
18 of the patients issued written certifications with the department
19 of public safety.
20      (b)  Qualifying patients shall register with the department
21 of public safety.  Such registration shall be effective until the
22 expiration of the certificate issued by the physician.  Every
23 qualifying patient shall provide sufficient identifying

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 1 information to establish personal identity of the qualifying
 2 patient and the primary caregiver.  Qualifying patients shall
 3 report changes in information within five working days.  Every
 4 qualifying patient shall have only one primary caregiver at any
 5 given time.  The department shall then issue to the qualifying
 6 patient a registration certificate, and may charge a reasonable
 7 fee not to exceed $25.
 8      (c)  Primary caregivers shall register with the department
 9 of public safety.  Every primary caregiver shall be responsible
10 for the care of only one qualifying patient at any given time.
11      (d)  Upon an inquiry by a law enforcement agency, the
12 department of public safety shall verify whether the particular
13 qualifying patient has registered with the department and may
14 provide reasonable access to the registry information for
15 official law enforcement purposes.
16      329-D  Insurance not applicable.  This part shall not be
17 construed to require insurance coverage for the medical use of
18 marijuana.
19      329-E  Protections afforded to a qualifying patient or
20 primary caregiver. (a)  A qualifying patient or the primary
21 caregiver may assert the medical use of marijuana as an
22 affirmative  defense to any prosecution involving marijuana under
23 this chapter or chapter 712; provided that the qualifying patient

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 1 or the primary caregiver strictly complied with the requirements
 2 of this part.
 3      (b)  Any qualifying patient or primary caregiver not
 4 complying with the permitted scope of the medical use of
 5 marijuana shall not be afforded the protections against searches
 6 and seizures pertaining to the misapplication of the medical use
 7 of marijuana.
 8      (c)  No person shall be subject to arrest or prosecution for
 9 simply being in the presence or vicinity of the medical use of
10 marijuana as permitted under this part.
11      329-F  Protections afforded to a treating physician.  No
12 physician shall be subject to arrest or prosecution, penalized in
13 any manner, or denied any right or privilege for providing
14 written certification for the medical use of marijuana for a
15 qualifying patient; provided that:
16      (1)  The physician has diagnosed the patient as having a
17           debilitating medical condition, as defined in section
18           329-A;
19      (2)  The physician has explained the potential risks and
20           benefits of the medical use of marijuana, as required
21           under section 329-B;
22      (3)  The written certification is based upon the physician's
23           professional opinion after having completed a full

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 1           assessment of the patient's medical history and current
 2           medical condition made in the course of a bona fide
 3           physician-patient relationship; and
 4      (4)  The physician has complied with the registration
 5           requirements of section 329-C.
 6      329-G  Protection of marijuana and other seized property.
 7 Marijuana, paraphernalia, or other property seized from a
 8 qualifying patient or primary caregiver in connection with a
 9 claimed medical use of marijuana under this part shall be
10 returned immediately upon the determination by a court that the
11 qualifying patient or primary caregiver is entitled to the
12 protections of this part, as evidenced by a decision not to
13 prosecute, dismissal of charges, or an acquittal; provided that
14 law enforcement agencies seizing live plants as evidence shall
15 not be responsible for the care and maintenance of such plants.
16      329-H  Fraudulent misrepresentation; penalty.(a)
17 Notwithstanding any law to the contrary, fraudulent
18 misrepresentation to a law enforcement official of any fact or
19 circumstance relating to the medical use of marijuana to avoid
20 arrest or prosecution under this part or chapter 712 shall be a
21 petty misdemeanor and subject to a fine of $500.
22      (b)  Notwithstanding any law to the contrary, fraudulent
23 misrepresentation to a law enforcement official of any fact or

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 1 circumstance relating to the issuance of a written certificate by
 2 a physician not covered under section 329-F for the medical use
 3 of marijuana shall be a misdemeanor.  This penalty shall be in
 4 addition to any other penalties that may apply for the non-
 5 medical use of marijuana.  Nothing in this section is intended to
 6 preclude the conviction of any person under section 710-1060 or
 7 for any other offense under part V of chapter 710.
 8      SECTION 3.  Section 453-8, Hawaii Revised Statutes, is
 9 amended by amending subsection (a) to read as follows:  
10      "(a)  In addition to any other actions authorized by law,
11 any license to practice medicine and surgery may be revoked,
12 limited, or suspended by the board at any time in a proceeding
13 before the board, or may be denied, for any cause authorized by
14 law, including but not limited to the following:
15      (1)  Procuring, or aiding or abetting in procuring, a
16           criminal abortion;
17      (2)  Employing any person to solicit patients for one's
18           self;
19      (3)  Engaging in false, fraudulent, or deceptive
20           advertising, including[,] but not limited to:
21           (A)  Making excessive claims of expertise in one or
22                more medical specialty fields;

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

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