NOTE:  SB1085 was originally SB772.   The new number for the medical marijuana bill in Sen Rules Committee is SB 1085.   Remember, this is identical to the SB 772-4 amendments.   We do not have any information as to whether or not a hearing is being scheduled for this new bill.

Disposition on SB 1085 (formerly 772-4). This is no longer a patient-friendly bill but has morphed into Frankenstein's monster.  To summarize:   It appears the dash 4's are OK to Law Enforcement and their lackeys in our community.   That means LE and their “activist” allies (a powerful duo as we found out last session) will get their law if it zips through Senator Brown's committee with a "do pass".   Sen. Brown doesn't want to talk about the bill - says it Senator M's.

One suggestion is we really make our opposition to HB 1085 known.   They must have hundreds and hundreds of pages of testimony but still don't seem to "get it".   Everyone write more letters to help educate these under-informed lawmakers.   There is no reason to pass a "bad bill" just so someone feels some sense of accomplishment - that would be ridiculous.   Our fear is the Senators are so busy that we are a very low priority (especially near the end of the session) and we are about to get reminded of it.  There is shock about how passionate and comprehensive our testimony was on the dash 3's and how it seemed to get ignored since the dash 4's were the worse of all the drafts.  It is time to table this bill until the session ends.  If you agree, then let Senator Brown and Senator Morrisette know.  They apparently don't think those who contacted them earlier are serious patient advocates so it may be time to light up their inboxes and telephone lines with nice letters and pleasant thoughts this week.

Here is a link to SB 1085:   www.leg.state.or.us/05reg/measpdf/sb1000.dir/sb1085.intro.pdf

Amendments will be dealt with before a hearing if all goes as usual.  If the result is not a working fix we suspect Sen M will pull the plug or if agreement can not be reached then the request for amendment language will probably not be sent - except for the ones currently being done to fix the problems caused by bad drafting.

Every statement recently made by the senators involved is part of the whole picture - Sen B says essentially she will follow Sen M's lead on his bill - Sen M says he now understands the range and depth of the -4 problems and the fixes needed to serve all patients - and he has allowed as that if the Senate reality does not allow these fixes to be made and House reality allow them to be sustained there, he will stop work on the bill in favor of intersession work.

The Committee will not have the bill before them until Sen B brings it up for a hearing-Sen B will not schedule a hearing until after Sen M consults with his three partner legislators, law enforcement and "other" patient groups regarding the info passed on to him during Monday's meeting and the possibility of reaching agreement on the points made on Monday.  Until that happens, nothing happens. After that, when something happens, it just could be to announce the end of work on 1085

SB1085 has numerous bad provisions.  One concern is that we have not vetted all these ideas thoroughly.  We have discussed the AD at great length but some of the other bad provisions have barely been mentioned.  Below is a list of good, bad and confusing parts of the bill.  Concerns are that we have not had a chance to discuss some of these.  If there is going to be a hearing in the Rules Committee then we can hopefully speak with one voice about the critical provisions.

For example, bad part 4) below prohibiting payments other than for utilities and supplies is a disaster.  These provisions virtually guarantee that a caregiver would have to lose money helping a patient.  How can it help a patient to forbid them from reimbursing a caregiver for rent?  We know of many gardens that are now serving patients that would become illegal if patients couldn't pool their money and rent space for a garden.  How can legitimate caregivers help patients if it is illegal for them to be compensated?  How can medical marijuana ever become legitimate if we pretend it is free?  What are the arguments for prohibiting paying caregivers?  The best we have heard is Scott Heiser talking about the slippery slope of marijuana and money.

After Raich, it is clear that even giving marijuana away violates federal law so what is the reason to prohibit paying for producing medicine?  I think the only reason is to stifle the development of medical marijuana as a legitimate medicine.

Some people have argued that allowing payments for supplies and utitlities is a step forward while others disagree.  OMMA currently allows payment for costs of production.  At worst it is a gray area.  Has there been a caregiver has been prosecuted because their patient reimbursed them for rent?  Clearing up gray areas by making things that might be illegal (if your DA hates mmj)  or definitely illegal (expressly prohibited) is not an improvement.  It is a step backwards.

These provisions in 1085 prohibiting caregiver compensation will make it impossible to do a Multnomah County initiative that would allow dispensaries.

The problem here is that the fear of mixing marijuana and money is irrational.  It is the hysterical reaction of prohibitionists like Scott Heiser.  Apparently it is OK for the Oregon Legislature to take a million dollars of patients' money but it should be a felony for a caregiver growing a lifesaving medicine to be paid for their work like everyone else.  That's crazy.

Bad part 5), punishing patients for marijuana felonies, is poorly drafted.  But the whole idea stinks anyway.  Given the complexity of the system with patients, caregivers, and "persons responsible for registered marijuana gardens" it is unlikely this language can be worked out in the final hours of a frantic legislative session.

Below are some bullet points evaluating SB 1085.  many thanks to all contrbutors.

1) It eliminates both affirmative defenses.

2) Raising the possession limit to 24 ounces is innadequate to trade the over the limit AD.

3) For people in most counties, it actually lowers the plant number from 7 to 6.

4) It expressly prohibits payment for any expense other than supplies or ultilities.  Payment for labor, rent, security, accounting, etc are prohibited

5) Section 8 (6)(a) revokes the marijuana grow site registration (MGSR) card of a patient convicted of violating 475.992   This part is rather unclear.  It doesn't say a conviction occuring after the patient obtains a card.  (6)(b) says... "may" not be issued a MGSR card within 5 years of conviction.  (6)(c) says "a person" convicted more than once "may" not be issued a garden card.  So does that mean (c) is the only part that covers caregivers or persons responsible for a marijuana grow site (PRMGS)

We don't see where this would revoke the MGRS card of a caregiver or grower who violated 475.992 until their second offense, which would bar them for life.

We doubt this part does exactly what was intended.  It seems to punish the patient more than the caregiver.  It doesn't say a patients couldn't obtain a registry identification card, it just says they can't be issued the MGRS card that they need to produce their medicine.  Does this mean a convicted patient would get an OMMA card but would be reduced to begging for their supply?  Would they be able to possess one ounce?  Or does the fact that they can't designated a grow site mean that OMMP will deny their application?

6) We don't think the Ken Brown clause is in the bill.  According to informed sources the language in the original 772 was way off base and merely protected nurses who happened to be cardholders.

7) NO reciprocity

8) What has been said about Choice of Evils basically being useless unless imminence is removed.

The good parts:

1) 24 is more than 3

18 seedlings is more than 0

3) 6 is more than 3 for people in Josephine County.  (The other counties mostly just count to 7 don't they?)

4) In this case LE only confiscating amounts over the limits is temporarily good - until you are convicted (with no AD that is a given) and then you lose the card completely.

5) Explicity authorizing payments for anything is good.  Hmmm.  But don't we realisticly have this except for Heiser?  Convince us this is good!

The unclear parts:

1) Section 9 (2) (c) limits PRMGS to growing for 4 patients.  It seems that Section 8 requires someone be the PRMGS for every garden.  If there is no new person we guess it must be the patient or caregiver.  There also does not seem to be a limit on garden size.  These amendments just require a distinct PRMGS for every four patients.  This seems like more ambiguous gray area producing language that will be disinterpreted in the worst counties.

NOTE: in the opinions of experinced activists, trying to fix 1085 at this stage is dangerous.  But if there is going to be a hearing, lets communicate as clearly as possible on what the problems are with this bill.

LTL (Letters-To-yer-Legislator) Examples -

First, what "they" say . . . Dear Xxxx, DHS does do some very questionable things and I objected when they look the money from the MMJ account for their rebalance.  I have been involved with the MMJ program since its inception.  I helped create the first set of rules for the administration of the program.  We knew at the time we did not have a perfect program and adjustments would need to be made. We have had many work groups and proposals presented over the last four years and have had some very good debate from all sides.  I have been part of the work group that created SB 772, which is now being amended to become SB 1085.  I believe it is a good product, although it too is not perfect.  It does, however, have the support of both law enforcement and the patient advocacy groups.  At this point the only real objections seem to be coming from the legalization folks, and that is not our intention.  In light of the recent Supreme Court decision we think it is even more important for us to further define our program.  SB1085 will be coming up for a vote and I will be supporting it. Thank you for your letter and please keep me informed on any further concerns. Sincerely, Senator Jeff Kruse

LTL Example #1 - To: sen.jeffkruse@state.or.us Sent: Friday, June 24, 2005 7:28 AM Subject: SB 1085 support base Dear Senator: While I am certain you are aware of my gratitude towards you for working hard on issues important to Oregon's Medical Marijuana Community I need to make you aware of my concern regarding your statement by email to a colleague that SB772/1085 was supported by "patient advocacy groups" and only opposed by the "legalization folks". Jeff for the record, you are absolutely and unequivocally wrong!  I have heard NO "patient advocacy groups" support this bill in its current form but have heard all but Stormy's group actively express opposition to it.  I can only assume from your comments that XXX's group supports the bill, but you may be the only one they have shared that with if so, because in spite of polite requests from their colleague patient advocates, XXX has never responded with their views. It would be a tremendous disservice to thousands of OMMP registrants if you maintain the view you have seemingly developed through your clearly friendly relations with XXX, that those people are "patient advocates" and the hundreds of other persons working in some degree on this issue are of some other category of citizen.  As the person who started work in the legislature on medical marijuana issue, I must inform you in the strongest possible terms that that view is in error and that no one involved in medical marijuana issues is being so involved as part of a grander scheme of "legalization," but are working as "patient advocates" exactly as and perhaps with even more effectiveness than XXX and their group. In closing Jeff, I wish to thank you again for you work on our behalf and leave you with a reminder that while XXX may be an effective spokesperson for the need for medical marijuana, when it comes to representing patients, they are in no way near the "be all and end all" when it comes to that role.   They are but one of dozens of such persons doing the same work thought their groups and XXX speaks for no one but their group. Thank you for your attention. Xxxxx Xxxx

LTL Example #2 - To: sen.billmorrisette@state.or.us, sen.jeffkruse@state.or.us , sen.floydprozanski@state.or.us , rep.stevemarch@state.or.us Subject: SB772-4/1085 URGENT CHANGES NEEDED Date: Fri, 24 Jun 2005 04:59:58 Dear Senators Morrisette, Kruse, Prosanski and Representative March: Thank you again for all your hard work in trying to find a workable compromise to amend the Oregon Medical Marijuana Act (OMMA) in a way which will help patients and caregivers. Thank you Senator Morrisette for meeting with a delegation of advocates regarding some of the concerns we have with the dash 4 amendments. Thank you Senator Prozanski for returning my phone call. And thank you Senators Morrissette, Prozanski and Kruse for voting against HB5077 and for trying to get some of the funds taken from the OMMP account by DHS returned to it. I write concerning two changes in the dash 4 amendments of especial concern to me as a lawyer who has worked hard since before the OMMA to keep patients and their caregivers out of the criminal justice system. In addition to the concerns raised in Dr. Bayer’s letter and by the delegation who visited with Senator Morrisette, these concerns ought be considered ‘deal breakers’ in terms of a workable compromise for this session. The first concerns the repeal of the affirmative defenses and, more specifically, the need to amend the provision relating to the ability to present medical necessity evidence and to put on the choice of evils defense. More specifically, if there is to be no affirmative defense for non-cardholders, then in light of a recent decision from our Court of Appeals, a legislative fix is necessary to protect non-cardholding patients. Currently the provision (ORS §475.319(3), set forth in the dash 4 amendments at page 13, lines 4-12) provides: No person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is charged with a crime pertaining to such use of marijuana shall be precluded from presenting a defense of choice of evils, as set forth in ORS 161.200, or from presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition, provided that the amount of marijuana at issue is no greater than permitted under [ORS 475.306] section 9 of this 2005 Act and the patient has taken a substantial step to comply with the provisions of ORS 475.30 to 475.346. There are two problems with this statute. The first is the ambiguity surrounding the phrase ‘presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition’ specifically as to whether this is legislative authorization for a medical necessity defense. Brian Michaels from Eugene reports that a Linn County trial judge has so construed it, but, again, there has not been any appellate guidance. The second and more pressing problem concerns the Court of Appeals’ decision in State v. Miles, 197 Or. App. 86, 104 P3d 604 (2005). Although the Court correctly noted that prior to the OMMA there was no right to present this defense (State v. Ownbey, 165 Or App 132 996 P2d 510, adh'd to on recons, 168 Or App 525, 7 P3d 653 (2000), rev den, 331 Or 584 (2001)), the Court affirmed the trial court’s denial of the choice of evils defense. Having drafted this section (prior to the limitations added during the 1999 session) I can assure you that the intent of the provision was to let the jury and not the judge decide whether the facts of the case met the defense. This was undenaibly the will of the people when they enacted the OMMA in 1998. One solution to these problems would be to substitute this language in a dash 5 amendment: No person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is charged with a crime pertaining to such use of marijuana shall be precluded from presenting a defense of choice of evils, as set forth in ORS 161.200, and no judge is authorized to deny this defense to such a person. Nor shall any person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is charged with a crime pertaining to such use of marijuana be precluded from presenting a defense of medical necessity including the ability to present evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition, provided that the amount of marijuana at issue is no greater than permitted under [ORS 475.306] section 9 of this 2005 Act and the patient has taken a substantial step to comply with the provisions of ORS 475.30 to 475.346. Without these or similar changes, the bill should die and an interim legislative advisory committee, which includes legislators, should be convened, consistent with Dr. Bayer’s letter. The second problem concerns material which is new to the dash 4 amendments relating to the reimbursement of cardholders. This is found in subsection (7) of Section 8 of the bill, on page 10 at lines 3-9: (7) A registry identification cardholder or the designated primary caregiver of the cardholder may reimburse the person responsible for a marijuana grow site for the costs of supplies and utilities associated with the production of marijuana for the registry identification cardholder. No other costs associated with the production of marijuana for the registry identification cardholder, including the cost of labor may be reimbursed. I’m not sure where this language comes from but I can help with the history of the idea. Stormy Ray held a series of roundtable discussions with advocates and law enforcement, as I recall, in between the 1999 and 2001 sessions. Dale Penn, who was then both the Marion County District Attorney and the ODAA representative to the roundtable discussions agreed that the law as it existed then and now did not prevent a patient from reimbursing a caregiver for all costs related to the production of the medicine, excepting only labor. I am unaware of any prosecutions anywhere within the state where a prosecutor has alleged that the transfer of medical marijuana was unprotected by the OMMA because the patient paid all costs other than labor. Had such a prosecution occurred, I assure you I would have heard about it. The solution here is much simpler. All that is needed is to delete the words ‘supplies and materials’ from the dash 4 amendment to achieve a codification of the status quo. Thank you again for all of your hard work and for this opportunity to comment on the proposed amendments. Sincerely, Xxx Xxxxxx, Portland

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