73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session
Senate
Bill 772
Sponsored by
Senator MORRISETTE
SUMMARY
The following
summary is not prepared by the sponsors of the measure and is not a part of the
body thereof subject to consideration by the Legislative Assembly. It is an
editor’s brief statement of the essential features of the measure as
introduced. Modifies amount
of medical marijuana authorized person or designated primary caregiver may
possess under certain circumstances. Authorizes multiple-person grow site to
produce medical marijuana for up to seven eligible persons. Eliminates
affirmative defense of medical necessity in certain circumstances. Clarifies
meaning of mature plant for purposes of Oregon Medical Marijuana Act.
Authorizes certain licensed health care professionals to administer medical
marijuana to authorized persons in certain circumstances.
Requires Department
of Human Services to develop system to allow authorized law enforcement
personnel to access list of persons issued registry identification cards.
Requires state and local law enforcement personnel to provide identification to
department prior to obtaining information from list of persons issued registry
identification cards. Creates Advisory Committee on Medical Marijuana in
department.
A
BILL FOR AN ACT
Relating to medical
marijuana; creating new provisions; amending ORS 475.306, 475.328 and 475.331.
Be It Enacted by
the People of the State of Oregon:
SECTION 1. ORS 475.306 is amended to read:
475.306. (1) A
person who possesses a registry identification card [issued pursuant to ORS
475.309] may engage in, and a designated primary caregiver of such a person
may assist in, the medical use of marijuana only as justified to mitigate the
symptoms or effects of the person’s debilitating medical condition. Except as
allowed in subsection [(2)] (4) of this section, a registry
identification cardholder and that person’s designated primary caregiver may
not collectively possess, deliver or produce more than the following:
(a) If the person
is present at a location at which marijuana is not produced, including any
residence
associated with that location, one ounce of usable marijuana; and
(b) If the person
is present at a location at which marijuana is produced, including any
residence associated with that location[,]:
(A) Three mature marijuana plants, four immature
marijuana plants and one ounce of usable marijuana per each mature plant;
(B) Seven
marijuana plants of any maturity level and a total of seven ounces of usable
marijuana; or
(C) If only one crop is grown annually at the location, 28 plants of any maturity level and 80 ounces of usable marijuana.
(2) The
Department of Human Services shall record, on the registry identification card
of the person and in the list maintained by the department under ORS 475.331,
whether the person chooses to possess medical marijuana in the amounts
authorized under subsection (1)(b)(B) or (C) of this subsection.
(3) A registry
identification cardholder or a designated primary caregiver may register a grow
site as a multiple-person grow site with the department. A multiple-person grow
site may provide medical marijuana for up to seven cardholders and may grow up
to seven plants and possess up to seven ounces of usable marijuana for each
cardholder.
[(2)] (4)(a)
If [the individuals described in subsection (1) of this section possess,
deliver or produce] a registry identification cardholder or a designated
primary caregiver possesses, delivers or produces marijuana in excess of
the amounts allowed in subsection (1)(a) and (b)(A) of this section, [such
individuals are] the cardholder or the caregiver is not excepted
from the criminal laws of the state but may establish an affirmative defense to
such charges, by a preponderance of the evidence, that the greater amount is
medically necessary to mitigate the symptoms or effects of the [person¢s]
debilitating medical condition of the cardholder.
(b)
Notwithstanding paragraph (a) of this subsection, if a person possessing a
valid registry identification card elects to possess, deliver or produce the
amounts of marijuana authorized under subsection (1)(b)(B) or (C) or (3) of
this section may not assert the affirmative defense provided under this subsection.
[(3)] (5)
The department [of Human Services] shall define by rule when a
marijuana plant is mature and when it is immature for purposes of this section.
The rule shall provide that a plant that has no flowers and is less than 12
inches in height and 12 inches in diameter is a seedling or start and not a
mature plant.
"SECTION 1: ORB 475.302 is amended to read:
"475.302, As used in ORB 475.300 to 475.346:
"(I) ‘Attending physician' means a physician
licensed under ORS chapter 677 who has primary responsibility for the care and
treatment of a person diagnosed with a debilitating medical condition.
(2) 'Debilitating medical
condition' means:
"(a) Cancer,
glaucoma, positive status for human immunodeficiency virus or acquired immune
deficiency syndrome, or treatment for these conditions;
"(b) A medical
condition or treatment for a medical condition that produces, for a specific
patient, one or more of the following:
"(A) Cachexia;
"(B) Severe pain;
“(C) Severe nausea;
“(D) Seizures, including
but not limited to seizures caused by epilepsy;
or
"(E)
Persistent muscle spasms, including but not limited to spasms caused by
multiple sclerosis; or
"(c)
Any other medical condition or treatment for a medical condition adopted by the
department by rule or approved by the department pursuant to a petition
submitted pursuant to OM 475.334.
"(3)
"Delivery has the meaning given that term in ORS 475.005. Delivery'
does not include transfer of marijuana by a registry identification cardholder
to another registry identification cardholder if no consideration is paid for
the transfer.
"(4) ‘Department' means the Department of Human Services.
"(5)
'Designated primary caregiver' means an individual 18 years of age or older who
has significant responsibility for managing the well-being of a person who has
been diagnosed with a debilitating medical condition and who is designated as
such on that person's application for a registry identification card or in
other written notification to the department. "Designated primary
caregiver does not include the person's attending physician.
"(6)
'Marijuana' has the meaning given that term in ORB 475.005.
‘(7) 'Marijuana grow site means a location
where marijuana is produced
for use by a registry identification cardholder and that is registered under
the provisions of section 8 of this 2005 Act.
"[(7)] (8) 'Medical use of marijuana' means the production,
possession, delivery, or administration of marijuana or paraphernalia used to
administer marijuana, as necessary for the exclusive benefit of a person to
mitigate the symptoms or effects of his or her debilitating medical condition.
"[(8)]
(9) 'Production' has the same meaning given that term in ORB 475.005.
"[(9)]
(10) 'Registry identification card' means a document issued by the department
that identifies a person authorized to engage in the medical use of marijuana
and the person's designated primary caregiver, if any.
"[(10)]
(11) 'Usable marijuana'
means the dried leaves and flowers of the plant Cannabis family Moraceae, and
any mixture or preparation thereof, that are appropriate for medical use as
allowed in ORS 475.300 to 475.346. 'Usable marijuana' does not include the
seeds, stalks and roots of the plant.
"[(11)] (12)
'Written documentation means a statement signed by the attending physician of a
person diagnosed with a debilitating medical condition or copies of the
persons’ relevant medical records.
SECTION 2 ORS 475.306 is amended to read:
"475.306. (I) A person
who possesses a registry identification card issued pursuant to' ORS 475.309
may engage in, and a designated primary caregiver of such a person may assist
in, the medical use of marijuana only as justified to mitigate the symptoms or
effects of the person's debilitating medical condition. [Except as
allowed in subsection (2)
of this section, a
registry identification cardholder and that person's designated primary
caregiver may not collectively possess, deliver or produce more than the
following:]
‘[(a) If the person is present at a location at which marijuana is not
produced, including any residence associated with that location, one ounce of
usable' marijuana; and]
‘[(b) If the person is present at a location
at which marijuana is produced, including any residence associated with that
location" three mature marijuana plants, four immature marijuana plants
and one ounce of usable marijuana per each mature plant.]
"[(2)
If the individuals described in subsection (1) of this section
possess, deliver or produce marijuana in excess of the amounts allowed in subsection (1) of this
section, such individuals are not excepted from the criminal laws of the state
but may establish an affirmative defense to such charges by a preponderance of
the evidence, that the greater amount is medically necessary to mitigate the
symptoms or effects of the person's debilitating medical condition.]
"[(3)] (2) The Department
of Human Services shall define by rule when a marijuana plant is mature and
when it is immature [for purposes of this section]. The rule shall provide
that a plant that has no flowers and is less than 12 inches in height and less
than 12 inches in diameter is a seedling or a start and not a mature plant and
may be possessed in. any number by a registry Identification cardholder, a
designated primary caregiver or a person authorized to produce marijuana for a
cardholder under section 8 of this 2005 Act.
SECTION 3 ORS 475.309 is amended to read:
"475.309. (1) Except as
provided in ORB 475.316 and 475.342 and section 9 of this 2005 Act, a
person engaged in or assisting in the medical use of marijuana is excepted from
the criminal laws of the state for possession, delivery or production of
marijuana, aiding and abetting another in the possession, "delivery or
production of marijuana or any other criminal offense in which possession,
delivery or production of marijuana is an element if the following conditions
have been satisfied:
"(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry identification card
pursuant to sub- section (9) of this section, [or] is the
designated primary caregiver of a cardholder or applicant, or is the
person responsible for a marijuana grow site that is producing marijuana for
the cardholder and is registered under section 8 of this 2005 Act; and
"(b)
The person who has a debilitating medical condition, [and] the
Person’s primary caregiver and the person responsible for a marijuana
grow site that is producing marijuana for the cardholder and is registered
under section 8 of this .2005 Act are collectively in possession of,
delivering or producing marijuana for medical use in [the] amounts
allowed [in ORB 475.306] under section 9 of this 2005 Act.
"(2) The Department of Human Services shall
establish and maintain a program for the issuance of registry identification
cards to persons who meet the requirements of this section. Except as provided
in subsection (3) of this section, the department shall issue a registry
identification card to any person who pays a fee in the amount established by
the department and provides the following:
"(a) Valid, written documentation from the person's attending
physician stating that the person has been diagnosed with a debilitating
medical condition and that the medical use of marijuana may mitigate the
symptoms or effects of the person’s debilitating medical condition:
"(b) The name, address and date of birth of the person;
"(c) The name, address and telephone number of the person's attending physician; [and]
"(d) The name and address of the person's designated primary caregiver, if the person has designated a primary caregiver at the time of application [.]; and
"(e) A written statement that indicates whether
the marijuana used by the cardholder will be produced at a location where the
cardholder or designated primary caregiver is present or at another location.
"(3) The department shall issue a registry identification card to a person who is under 18 years of age if the person submits the materials required under subsection (2) of this section, and the custodial parent qr legal guardian with responsibility for health care decisions for the person under 18 years of age signs a written statement that:
"(a) The attending physician of the person under 18 years of age has explained to that person and to the custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age the possible risks and benefits of the medical use of marijuana;
"(b) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age consents to the use of marijuana by the person under 18 years of age for medical purposes;
"(c) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age agrees to serve as the designated primary caregiver for the person under 18 years of age; and:
'(d) The custodial parent or
legal guardian with responsibility for health care decisions for the person
under 18 years of age agrees to control the acquisition of marijuana and the
dosage and frequency of use by the person under 18 years of age.
"(4) A person applying for a registry identification card pursuant to this section may submit the information required in this section to a county health department for transmittal to the Department of Human Services. A county health department that receives the information pursuant to this subsection shall transmit the information to the Department of Human Services within five days of receipt of the information. Information received by a county health department pursuant to this subsection shall be confidential and not subject to disclosure, except as required to transmit the information to the Department of Human Services.
"(5) The department shall verify the information contained in an application submitted pursuant to this section and shall approve or deny an application within thirty days of receipt of the application.
"(a) The department may deny an application only for the following reasons:
"(A) The applicant did not provide the information required pursuant to this section to establish the applicant's debilitating medical condition and to document the applicant's consultation with an attending physician regarding the medical use of marijuana in connection with such condition, as provided in subsections (2) and (3) of this section; or
"(B) The department determines that the inforn1ation provided was falsified. "(b) Denial of a registry identification card shall be considered a final department action, subject to judicial review. Only the person whose application has been denied, or, in the case of a person under the age of 18 years of age whose application has been denied, the person’s parent or Legal guardian, shall have standing to contest the department's action.
(c) Any person whose application has been denied may not reapply for six months from the date of the denial, unless so authorized by the department or a court of competent jurisdiction.
(6)(a) If
the department has verified the information submitted pursuant to subsections
(2) and (3) of this section and none of the reasons for denial listed in
subsection (5)(a) of this section is applicable, the department shall issue a
serially numbered registry identification card within five days of verification
,of the information. The registry identification card shall state:
"(A) The cardholder's name, address and date of birth;
"(B) The date of issuance and expiration date of the registry identification card;
"(C) The name and address
of the person's designated primary caregiver, if any; [and]
"(D) Whether the marijuana used by the cardholder
will be ,produced at a location where the cardholder or designated primary
caregiver is present or at another
location; and
"[(D)] (E) [Such] Any other information [as] that the department may specify by rule.
"(b) When the person to whom the department has issued a registry identification card pursuant to this section has specified a designated primary caregiver, the department shall issue an identification card to the designated primary caregiver. The primary caregiver's registry identification card shall contain the information provided in paragraph (a) of this subsection.
"(7)(a) A person who possesses a registry identification card shall:
"(A) Notify the department of any change in the person's name, address, attending physician or designated primary caregiver; and
"(B) Annually submit to the department:
"(i) Updated written documentation of the person's debilitating medical condition; and
"{ii) The name of the person's designated primary caregiver if a primary caregiver has been designated for the upcoming year.
"(b}"If a person who possesses a registry identification card fails to comply with this subsection, the card shall be deemed expired. If a registry identification card expires, the identification card of any designated primary caregiver of the cardholder shall also expire.
"(8) A person who possesses a registry identification card pursuant to this section and who has been diagnosed by the person's attending physician as no longer having a debilitating medical condition shall return the registry identification card to the department within seven calendar days of notification of the diagnosis. Any designated primary caregiver shall return the caregiver's identification card within the same period of time.
"(9) A person who has
applied for a registry identification card pursuant to this section but whose
application has not yet been approved or denied and who is contacted by any law
enforcement officer in connection with the person's administration, possession
delivery or production of marijuana for medical use may provide to the law
enforcement officer a copy of the written documentation submitted to the
department pursuant to subsections (2) or (3) of this section and proof of the
date of mailing or other transmission of the documentation to the department.
This documentation shall have the same legal effect as a registry
identification card until such time as the person receives notification that
the application has been approved or denied. ".
On page 2, delete lines 1 through 17.
In line 18, delete "2” and insert "4".
In line 35 delete "3”, and insert "5".
On page 3, line 16, delete “4. Section 5
of this 2005 Act is" and insert "6. Sections 7, 8 and 9 of this
2005 Act are".
In line 18, delete “5” and insert “7".
After line 33, insert:
"SECI'ION 8” (1) The Department ~f Human Services shall
establish by rule a marijuana grow site registration system to authorize production
of marijuana by a registry identification cardholder or that person’s
designated primary caregiver who grows marijuana or by a person who
is-responsible for a marijuana grow site. The marijuana grow site registration
system adopted must require a registry identification cardholder to submit an application to the
department that includes:
"(a) The name of the person responsible for the marijuana grow site;
"(b) The address of
the marijuana grow site;
"(c) The registry
identification card number of the registry cardholder for whom the marijuana is
being produced; and
"(d) Any other
information the department considers necessary.
"(2) The department
shall issue a marijuana grow site registration card to a registry
identification cardholder who has met the requirements of subsection (1) of
this section.
"(3) A person who has been issued a
marijuana grow site registration card under this section must display the
registration card at the marijuana grow site at all times when marijuana is
being produced.
"(4) A marijuana grow site registration
card must be obtained and posted for each registry identification cardholder
for whom marijuana is being produced at a marijuana grow site.
"SECTION 9. "(1)
A registry identification cardholder or the designated primary caregiver of the cardholder
may possess up to six mature marijuana plants and 60 ounces of usable
marijuana.
"(2) If the marijuana
used by the registry identification cardholder is produced at a marijuana grow
site where the cardholder or designated primary caregiver is not present, the person responsible for the
marijuana grow site:
"(a) May produce
marijuana for and deliver marijuana to a registry identification cardholder or
that person's designated primary caregiver as authorized under this section.
"(b) May possess up
to six mature plants and up to, 60 ounces of usable marijuana for each
cardholder or caregiver for which marijuana is being produced.
"(c) May produce marijuana for up to four
registry identification cardholders or designated primary caregivers per year.
“(d) Must obtain and
display a marijuana grow site registration card issued under section 8 of this
.2005 Act for each registry identification cardholder or designated primary
caregiver for which marijuana is being produced.
“(e) Must provide all
marijuana produced for a registry identification cardholder or designated
primary caregiver to the cardholder or caregiver at the time the person
responsible for a marijuana grow site ceases producing marijuana for the
cardholder or caregiver.
"(f) Must return the marijuana grow site
registration card to the registry identification cardholder to whom the card
was issued when requested to do so by the cardholder or when the person
responsible for a marijuana grow site ceases producing marijuana for the
cardholder or caregiver.
"(3) Notwithstanding
subsections (1) and (.2) of this section, a registry identification cardholder,
the designated primary caregiver of the cardholder and the person responsible
for a marijuana grow site producing marijuana for the registry identification
cardholder may possess a combined total of up to six mature plants and 60
ounces of usable marijuana for that registry identification cardholder.
"(4) A registry identification cardholder, the designated primary caregiver of the cardholder and a person responsible for a marijuana grow site may possess marijuana seedlings or starts as defined by rule of the Department of Human Services in any quantity.
“SECTION 1O. ORS 475.326 is amended to read:
"475.326. No attending physician may be subjected to civil penalty or discipline by the Board of Medical Examiners for:
"(1) Advising a person whom the attending
physician has diagnosed as having a debilitating medical condition, or a person
who the attending physician knows has been so
diagnosed by another physician licensed under ORS chapter 677, about the risks
and benefits of medical use of marijuana or that the medical use of marijuana
may mitigate the symptoms or effects of the person's debilitating medical condition,
provided the advice is based on the attending physician's personal assessment
of the person's medical history and current medical condition; or
"(2)
Providing the written documentation necessary for issuance of a registry
identification card Under ORB 475.300, if the documentation is based on the
attending physician's personal assessment of the applicant's medical history
and current medical condition and the attending physician has discussed
the potential medical risks and benefits of the medical use of marijuana with
the applicant.
"SECTION 11. ORB 475.319 is amended to read:
"475.319.
[(1) Except as provided in ORB 476.816 and 475.342, it is an
affirmative defense to a criminal charge of possession or production of
marijuana, or any other criminal offense in which possession or production of
marijuana is an element, that the person charged with the offense is a person
who:]
[(a) Has been
diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by his
or her attending physician the medical use of marijuana may mitigate the
symptoms or effects of that debilitating medical condition;]
[(b) Is engaged in the medical use of marijuana;
and]
"[(c)
Possesses or produces marijuana only in the amounts allowed in ORS 475.306 (1), or in excess of those amounts if the
person proves by a preponderance of the evidence that the greater amount is
medically necessary as determined by the person's attending physician to
mitigate the symptoms or effects of the person's debilitating medical
condition.]
"[(2) It is- not necessary for a person asserting an
affirmative defense pursuant to this section to have received a registry
identification card in order to assert the affirmative defense established
in this section.]
“[(3)] 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 ORB 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 ORB 475.300 to
475.346.
“[(4) Any defendant proposing to use the affirmative defense
provided for by this section in a criminal action shall, not less than five days
before the trial of the cause, file and serve upon the district, attorney a
written notice of the intention to offer such a defense that
specifically states the reasons why the defendant is entitled to assert and the
factual basis for such affirmative defense. If the defendant fails to file and
serve such notice, the defendant shall not be permitted to assert the
affirmative defense at the trial of the cause unless the court for good cause
orders otherwise.]
SECTION
12. ORS 475.316 is amended
to read:
"475.316. (1) No person
authorized to possess, deliver or produce marijuana for medical use pursuant to
ORB 475.300 to 475.346 shall be excepted
from the criminal laws of this state [or- shall be deemed to have established an affirmative defense to criminal
charges of which possession, delivery or production of marijuana is an element] if the person, in connection with the facts giving rise to such
charges:
“(a)
Drives under the influence of marijuana as provided in ORB 813.010;
"(b)
Engages m the medical use of marijuana m a public place as that term is defined
in ORS 161.015, or in public view, or in a correctional facility as defined in
ORS 162.135 (2) or youth correction facility as defined in ORS 162.135
(6);
SECTION 2. ORS 475.328 is amended to read:
475.328. (1) No
professional licensing board may impose a civil penalty or take other
disciplinary action against a licensee based on the licensee’s medical use of
marijuana in accordance with the provisions of ORS 475.300 to 475.346 or
actions taken by the licensee that are necessary to carry out the licensee’s
role as a designated primary caregiver to a person who possesses a lawful
registry identification card [issued pursuant to ORS 475.309].
(2)(a) A
licensed health care professional may administer medical marijuana to a person
who possesses a registry identification card and resides in a licensed health
care facility if the administration of pharmaceuticals is within the scope of
practice of the licensed health care professional. Administration of medical
marijuana under this subsection may not take place in a public place as defined
in ORS 161.015 or in the presence of a person under 18 years of age. If the
medical marijuana administered under this subsection is smoked, adequate
ventilation must be provided.
(b) Nothing in
this subsection requires:
(A) A licensed
health care professional to administer medical marijuana; or
(B) A licensed
health care facility to make accommodations for the administration of
medical
marijuana.