* Special Edition * Winter 2005 * |
On Senate Bill 1085
Legislature
Amends Oregon Medical Cannabis Law
Salem, OR: State
lawmakers passed legislation amending Oregon's six-year-old medical
cannabis law. The law, originally passed by 55 percent of state voters in 1998,
allows state-authorized patients to possess and grow marijuana medicinally for
qualified illnesses.
SB
1085, which previously passed in the Oregon Senate unanimously July 20, and
39-14 in the House after amendments Aug. 2, clarifies some sections and makes
changes to others in the voter-approved Oregon Medical Marijuana Act, which
went into effect Dec. 3, 1998.
Changes to the law offer a mixed bag to
state-qualified patients. Most substantially, the amendments raise the quantity
of cannabis that authorized patients may possess from seven plants (with no
more than three mature) and three ounces of cannabis to six mature cannabis
plants, 18 immature seedlings, and 24 ounces of usable cannabis. However, those
state-qualified patients who possess cannabis in amounts exceeding the new
state guidelines will no longer retain the ability to argue an
"affirmative defense" of medical necessity at trial. Patients who
fail to register with the state, but who possess medical cannabis in amounts
compliant with state law, still retain the ability to raise an
"affirmative defense" at trial.
Other amendments to Oregon's medical marijuana law
redefine "mature plants" to include only those cannabis plants that
are more than 12 inches in height and diameter, and establish a state-registry
for those authorized to produce medical cannabis to qualified patients.
The
purpose of the bill was to clarify some ambiguities in Oregon’s medical
marijuana law. It called for a 24-hour accessible database and clarified size
restrictions on marijuana plants and grow-site definitions, amongother
provisions.
Oregon's
2005 long legislative session finally ended in July, but not before the
legislature passed S.B. 1085, a bill that could substantially change the Oregon
Medical Marijuana Program (OMMP). S.B.
1085 will greatly increase the amount of medicine a patient or caregiver may
grow and possess, but it will remove the cardholder affirmative defense for
possessing more than those amounts.
The
legislation, Senate Bill 1085, makes a series of changes intended to clarify
ambiguous sections of Oregon's voter-approved medical marijuana law that took
effect in 1998.
The
bill "provides the clear, bright lines that law enforcement needs to
enforce the law fairly, without infringement on the rights of those who
legitimately use the product," said Sen. Bill Morrisette, D-Springfield,
the bill's chief sponsor.
Lack
of clarity in the existing law means law officers sometimes "can get into
situations where they're not sure how to proceed," said Kevin Campbell,
executive director of the Oregon Association Chiefs of Police. "The reason
we like the bill is we think it clears up some of the ambiguity. It gives
officers more solid ground to stand on."
The
bill's other main backer, Sen. Jeff Kruse, R-Roseburg, said the bill could not
have moved forward without the work and support of both law enforcement
officials and advocates for users of marijuana.
Four major law
enforcement organizations representing police chiefs, sheriffs, district
attorneys and the Oregon State Police supported the bill because it provides
better guidance for officers confronted with sometimes ambiguous issues
surrounding the law.
To
lawmakers who oppose medical marijuana in principle, Kruse said the question isn't
whether to keep the law, given its popular support, but "how to make it
work better for all involved. This bill does that."
Many
patient advocates support the bill, but there is some division. One view of the basics
of the change is one of increasing the amounts of medicine allowed while
eliminating a majority of the affirmative defense, or AD. Current law permits cardholders and
caregivers - people who grow marijuana for cardholders who can't or don't want
to grow their own - to grow three mature and four immature plants and to
possess up to three ounces of dried marijuana.
The legislation lets cardholders grow up to six
mature plants and 18 seedlings and possess 24 ounces of dried
marijuana. Some say this is a
substantial, significant improvement and worth the cost.
But
in exchange for that provision, law enforcement got something important to
them: elimination of the "affirmative defense" for cardholders who
are found to be growing or possessing more marijuana than permitted under the
law. Currently, in that situation, a patient can argue in court that having
more marijuana than permitted is a medical necessity and therefore permissible.
Some patients and caregivers found to be growing illegal amounts of marijuana
have successfully used this in court.
An
example of an “affirmative defense” would be a patient saying they’re growing
more marijuana than allowed by law because that’s the only way they’ll have
enough medicine. Weather conditions only allow for one annual outdoor harvest
of marijuana, therefore the patient needs to produce enough cannabis in one
harvest to serve as medicine throughout the year.
After
January 1st, “affirmative defense” will be ineffectual, and patients
caught growing more than the permitted amount of cannabis could be convicted
and possibly receive jail time.
That change is one of the reasons that Leland
Berger, a Portland attorney who helped draft the original law and defends
medical marijuana patients, opposed the Senate legislation.
"It
was a really close call whether to support or oppose this legislation," he
said. "I take the position that it's important not to leave anyone behind.
This compromise legislation leaves people and situations behind, and that's why I was opposed to
it,'' Berger said.
Berger
further contends that the increased limits are inadequate, particularly for
outdoor growers who have only one crop a year. And he doesn't like a provision
that restricts caregivers to grow for no more than four patients.
Also,
he agrees with others that the limitation on what patients can lawfully
reimburse caregivers will limit patient access to medicine. The restrictions will result in the
diminution of supply for patients, he said, in part because the legislation
creates concerns about adequate supplies.
At the same time, by legalizing sharing, and increasing possessory
limits, it creates a possibility for charitable outreach to fill the need.
“I
don't think it will be adequate, but, if not, that gives us something to work
on in the next session, or on the next initiative.”
And
the failure to clarify that being able to present medical necessity evidence
means there is a right to a medical necessity defense and the failure to fix
the availability of the choice of evils defense means that some people who do
not have qualifying medical conditions will be unable to defend themselves in
court if arrested and prosecuted.
“However,
the bill does help hospice care patients (and others in adult foster care
facilities) by protecting (albeit not as far as we wanted, but more than now)
nurses and others in those facilities who dispense to them.” Berger added.
More
than one activist believes patient’s rights are being unduly sacrificed. Some
hold that though parts of the legislation are positive, such as the database,
other provisions are hurting sick people.
“They’re
trying to take our rights with Senate Bill 1085,” said Erin Hildebrandt, a
medical marijuana patient afflicted with Crohn’s Disease, and a member of
Parents Ending Prohibition. “Intended to solve part of the problem, (it) is an
obscene attempt to further degrade our ability to remain law-abiding citizens,”
Hildebrandt said.
“In
the past law there was no limit to the number of growers. Now it’s limited,”
said Jim Greig of Americans for Safe Access, a medical marijuana advocacy
group. “(The politicians) believe if patients grow more, they’ll be
facilitating the black market. But that’s not the case. As it stands now,
patients have to buy (marijuana) from the streets. Why can’t patients help
other patients?”
“Protection
from police raids is the only redeeming quality of state registration that I
can see,” Greig said.
Jacqui
Lomont of the Compassion Center agreed with the Senate’s decision to pass the
bill.
“I
think that overall it is a good thing. It provides clearer definitions of
issues that were a little muddy before. No one ever agrees completely on the
total package, but it passed 30-0 (in the Senate), so that says something,”
Lomont said before the House amendments.
In another example, Oregon NORML (National
Organization for the Reform of Marijuana Laws) backed the bill, with Madeline
Martinez, the group's executive director, calling it a ``great enhancement''
for patients. Martinez said she likes that the bill
defines a marijuana plant - anything over 12 inches high or 12 inches wide - so
there's no confusing seedlings or cuttings with mature plants.
And
the increase in the number of mature plants and amount of dried marijuana that
cardholders are permitted to possess would be a major improvement to the
law. To be allowed to possess and grow
that much would relieve a lot of stress for cardholders, she said.
1. More Medicine. Under 1085, many, many more patients who are
currently illegal at harvest, will be legal. Some who are proficient at
cultivation (or who have found someone proficient to cultivate for them for
free) will produce as much medicine legally as the IND patients receive from
the federal government (4 harvests/yr x 1.5 pounds/harvest = 6 pounds/yr.)
2. Issue; Financial Support and
ReImbursement. The problems
surrounding the sales of medical cannabis which and others have described,
derive both from prohibition (which artificially inflates the value) and from
the lack of regulation. Whether SB1085
helps or hinders remains to be seen.
3. Distribution for the needy;
especially poor, old (etc.) and those that need meds now (terminal). Unless and until there are licensed and
regulated dispensaries, some patients (and especially those recently diagnosed,
who are unconnected to other patients and advocacy organizations, i.e. those
most in need) will be without medicine. County regulated patient resources
could conceivably help with some of this (by creating places where patients can
freely share) but inevitably some patients will be without.
See >> ACTION
This
is a compromise bill, fashioned principly by the state senator who stopped a
bad bill last session and the republican vice chair of his committee.
Those who are familiar with the history of medical cannabis reform in Oregon
view supporting or opposing this bill as a very, very close call.
Understandably, there is a split of opinion with long time local activists taking
up opposing sides. We continue to participate in the process, however, helping
to make sure of things like patients whose cards would be revoked because of
delivery or manufacture convictions would be able to continue to be patients
and participating in other discussions regarding compromise.
On
the one hand it will make a great many more patients legal than currently are
legal. On the other hand, it will limit patient access.
This
is a remarkable step forward which includes the greatest possession limits ever
approved by any state legislature. It will make many, many Oregon patients who
are instantly illegal upon cultivation, now legal, and, overall, it codifies
many significant reforms.
It
also removes an affirmative defense for cultivating or possessing too much. The
affirmative defense for non registrants who could have registered but didn't
remains, and the ability to put on a medical necessity defense for those who do
not qualify also remains. All that is restricted (which was and is law
enforcement's biggest bugaboo) is the quantity. While not as much as it should
be, it clearly is significantly more than our current limits.
The
momentum of the bill derived from the hard work that Senators Bill Morissette
and Jeff Kruse did in forging a compromise. In a building filled with partisan
acrimony, getting two sentators who don't otherwise agree on much to reach a
deal is the kind of thing which results in 30-0 senate votes and, apparently,
last minute deals to keep the bill alive.
For
those who supported the bill, the unanimous support of our state senate marks a
huge victory. People should know that no one in Oregon is funded for this
or any other lobbying activities.
Irrespective
of what action local activists take, long time observers and participants in
legistlative struggles here in Oregon find it hard to imagine the House
agreeing to increase the limits from one ounce per mature plant at the garden
and one ounce away from the garden to a pound and a half anywhere – but that’s
just what happened.
The
important thing was that this bill evolved from a process that involved a
majority of the opposition. Long-time
opponents of issues were considering things they refuse to before. Much progress was made in educating those
who think they are against us.
There
has been a lot of great work done here. There is a differentiation
between plants and cuttings. The addition of the third grower was a bit
of a surprise, but obviously sets the way for dispensaries.
The
medical cannabis law reform community has made significant headway with state
Senate leadership, and although we agree with others that the increase in plant
limits and quantities of medicine is insufficient to justify repealing the
affirmative medical necessity defense for cardholders, we choose not to
disrespect those legislators and activists who have been working with on this bill simply because we
disagrre with them.
Because
we do not support the bill in it's entirety, is not a slap in the face of those
legislators and advocates, who worked so hard on it. we are grateful for
all their hard work trying to reach a compromise between law enforcement, the
program administrators and the patient advocates. Of course however this
turns out, our work won't be over. we have and will continue to testify
and act upon those sections of the bill which we think still need reform.
there
will also be other projects that activists will undertake. we think it
especially important that we all do what we can to network within our
movement. It’s regretable that we don't all see eye to eye, but that
doesn't mean we shouldn't respect each others opinions. we think that taking strident opposition to
people who supported and/or otherwise worked on this bill is contrary to that
effort.
In
short, thanks to everyone who has worked so hard on this bill, those who held
meetings, meetings, meetings and those who wrote email after email and made
multiple phone calls. It is a struggle to keep up with it all and
together we have done a good job. What
is most remarkable about this reform is that we are all of us volunteers. No
funding from any individual or organization caused this reform to occur during
this legislative session.
See >> CONTACTs,
below.
S.B.
1085 will effect several key changes to the OMMP, though two of these deserve
particular note: increase allowable
plants and medicine, for some, and eliminate affirmative defense in some cases.
While
the most significant, these are by no means all of the changes S.B. 1085 makes
to the OMMP. Other changes include limiting the numbers of patients for whom a
caregiver may grow, imposing a new registration system on grow sites, allowing
greater sharing of medicine among patients, and permitting medical
professionals to administer medical marijuana to patients under certain
circumstances.
These are the points as highlighted by the
OMMP. See: OMMP/libry/SB1085_points.htm
Increases
plant numbers. The bill changes the current legal number of
plants allowed per patient from four (4) mature and three (3) immature to six
(6) mature plants. S.B. 1085 will allow
patients and caregivers to possess up to 24 ounces of marijuana, six mature
plants, and 18 seedlings or starters, which are defined as a plant less than 12
inches tall and 12 inches in diameter.
Clarifies
“plant” (life cycle). SB1085 defines plants that have no flowers
and re less than 12” in height and 12” in diameter as considered seedlings or
starts (also “clones”, etc.) and are
NOT to be counted as “mature” plants, which may now number six (6).
Increases
amount of allowable harvested, useable medicine. changes
the current legal amount of marijuana a registrant may possess from four (4)
ounces to twenty-four (24) ounces.
Increases available medicine.
Currently, patients and caregivers can possess three ounces of marijuana
and seven plants, only three of which can be mature. Under this bill medical marijuana cardholders would be allowed to
possess up to 1 1/2 pounds of dried marijuana and six mature plants.
Clarifies
Grow Site person/system. The bill requires the OMMP to establish a
“grow site registration system” to authorize the production of marijuana by the
regeistry cardholder, the designated primary caregiver or a person responsible
for a grow site. Creates new
classifivcation of “grow site registrant” that will add marginal cost to the
registration database.
Defines
number of Patients (4) one can grow for. 1085 limits the number of
patients, for whom a grower can grow marijuana, at a “multiple patient” grow
site, to four (4) patients. Currently
there is no limit.
Penalties. Calls for
growers who are convicted of drug offenses to have their cards revoked for five
years after a first offense and for good after a second offense. The bill
(1.) prohibits a grower from producing marijuana for five (5) years, if
convicted of a drug related offense - and (2.) prohibits a patient from
producing marijuana for five (5) years, if convicted of a drug related offense
AND limits the amount of marijuana a patient may posses to one (1) ounce.
(point to Text)
Card
required for Transporting. 1085 mandates that a person, when
transporting marijuana, must be in possession of a registration card.
Eliminates
AD for some cases. 1085 Removes “affirmative defense” for
possession of marijuana in excess of allowable amounts (this was the key issue
for law enforcement and would have allowed for patients to be in possession of
amounts greater than statute permits).
Currently,
an affirmative defense is available to cardholders who exceed the statutory
limits in some circumstances, in addition to a non-cardholder affirmative
defense that is not bound by the OMMP limits on use or possession. S.B. 1085 will provide an affirmative
defense for non-cardholders, as long as their reason for use and the amount of
marijuana they have in their possession would have been in compliance under the
OMMP.
Hospice
facilities and workers, the “Ken Brown” clause. The bill permits but
does not mandate appropriate health care providers to assist registered
patients in the administration of medical marijuana.
The bill also:
•
Permits patients to reimburse caregivers for their expenses, such as supplies
and utilities, associated with growing.
•
Requires growers to return all marijuana and a grow-site card when they stop
growing for a patient.
•
Requires state officials to issue grow-site cards to qualified persons, and for
those cards to be displayed at all times at grow sites.
24x7
Medical
marijuana patients will no longer have to rely on ID cards and their own verbal
assurances when law enforcement comes calling. A comprehensive online database
of patients is planned to be operational by summer’s end, if SB 1085 becomes
law.
The
bill Mandates the OMMP to provide law enforcement with a verification system
that permits access to information twenty-four (24) hours per day, seven (7)
days per week – referred to as “24/7” and “24x7”. This requires state health officials to establish the 24-hour
accessible database system of registered marijuana grow sites and patients that
will allow police to verify a person is a cardholder at any hour of the day.
Police
will be able to access the database at any time, day or night. But officers
cannot arbitrarily search the system — it can only be accessed when a person
tells police he or she is a registered medical marijuana patient or that a
property is a registered grow site.
The
database has been in Health Services’ plans for more than a year, and passage
of SB 1085 allows these plans to become
a reality. The Oregon Medical Marijuana
Program is a division of the Department of Human Services.
“It
will benefit both sides,” said Pam Salsbury of the state-run Oregon Medical
Marijuana Program. “It’s here to make things easier for the patient, but it
also helps law enforcement.”
The
database will be a component of the Law Enforcement Data System, which is used
by police departments throughout the state. Health Services is working in
conjunction with Oregon State Police in the preliminary stages of testing, but
the database could be used by local departments as well.
“It
would be a great tool for us,” said Sgt. Mike McCarthy of the Springfield
Police Department. “We could pull up a name right away and see whether or not
they have a card.”
The
system was slated to be up-and-running by Aug. 1, but unforeseen complications
at both Health Services and the Oregon State Police pushed the date of
operation back to the end of August. A committee met to iron out differences
between law enforcement, Human Services and advocacy groups.
“It
took a little longer on both ends,” said Salsbury. “Our main concern is
protecting the confidentiality of patients, caregivers and sites.”
Presently,
the database is in the final stages of in-house testing that Human Services
hopes will remove glitches from the server-based system. Testing will soon be
conducted through state police systems as well.
Once
testing of the database is complete, law enforcement officers will be able to
verify whether someone claiming his or her marijuana use is for medical reasons
has current registration with the state. Just a few strikes on the keyboard and
an immediate yes-or-no response will tell officers whether an individual’s
marijuana use is protected by Oregon state law.
The
database will be established in two phases. First, police will be able to check
an individual’s patient status through the system. The second phase will allow
police to check addresses of probable grow sites.
Eugene
police like the idea of 24/7 access, but said this technology won’t
revolutionize how marijuana users are treated in the city.
“There’s
just not going to be much impact on EPD,” said Kerry Delf, of the Eugene Police
Department. “It could be useful, but will probably be more of a small
procedural change.”
The
required establishment of a 24-hour medical marijuana patient identification
system was only one provision in SB 1085, the over-arching purpose of which is
to clear up ambiguous sections of Oregon’s medical marijuana law. Although the
bill has sparked controversy in advocacy groups, the registry is not the source
of most debate.
Not
all patients are thrilled about having their names in a database that can be
accessed by police, but the database should limit uncertainty regarding who is
and isn’t a legal marijuana user or grower.
The
Committee(s)
Committee. 1085
requires the deprtment of human services (DHS) to create an Advisory Committee
on Medical Marijuana to replace the existing Administrative Work Group. to appoint an 11 member advisory committee
(to advise the Director of DHS) 'from persons who possess registry
identification cards, designated primary caregivers of persons who possess
regiatry identification cards and advocates of the Oregon Medical Marijuana
Act.'
SECTION 7.
(1)
There is created the Advisory Committee on Medical Marijuana in the Department
of Human Services, consisting of 11 members appointed by the Director of Human
Services.
(2)
The director shall appoint members of the committee from persons who possess
registry identification cards, designated primary caregivers of persons who possess
registry identification cards and advocates of the Oregon Medical Marijuana
Act.
(3)
The committee shall advise the director on the administrative aspects of the
Oregon Medical Marijuana Program, review current and proposed administrative
rules of the program and provide annual input on the fee structure of the
program.
(4)
The committee shall meet at least four times per year, at times and places
specified by the director.
(5)
The department shall provide staff support to the committee.
(6)
All agencies of state government, as defined in ORS 174.111, are directed to
assist the committee in the performance of its duties and, to the extent
permitted by laws relating to confidentiality, to furnish information and
advice that the members of the committee consider necessary to perform their
duties.
***
Unfortunately this:
“DHS has the power to
allow participative elections.”
is false. The agency's
power is limited by legislative authority. I support the underlying premise
behind this effort,
The
most salient feature of this section is that no one who opposes the OMMA is on
the committee. This is significant because, since its inception, the advisory
committee has included law enforcement, and, because the Legislative Advisory
Committee also included law enforcement.
the
director of DHS, Grant Higginson, has formed a committee to make
recommendations to the director about who to appoint and how to do it. the
director is, of course, free to reject this recommendation and appoint whoever
he wants, so long as the appointments are 'from persons who possess registry
identification cards, designated primary caregivers of persons who possess
regiatry identification cards and advocates of the Oregon Medical Marijuana
Act.'
irrespective
of whomever is appointed to the Advisory Committee, Dr. Higginson (our state
health officer) will allow all to participate. the director could make some
patient and caregiver positions elected (but doesn't have to, but cannot
appoint law enforcement. In addition to patient and caregivers, he has to
appoint other advocates.
this
committee will be merely advisory, and the director, who can reject
recommendations from the committee formed about how he should select advisory
committee members can similarly reject advice from the advisory committee once
it is formed. additionally, advisory committee meetings are likely subject to
Oregon's open meeting laws, so that any interested person can get notice of the
meetings and attend.
To see all of the changes,
you can visit http://www.mpp.org/OR/bill/9730.mpp
and read the final version of S.B. 1085.
__________________
The
Oregon Criminal Defense Lawyers Association has posted an article entitled
"Oregon Medical Marijuana Act Amended; Limits Increased, Some Affirmative
Defenses Repealed, Other Changes Enacted" to its web site (www.ocdla.org - on the home page under 'News
and Issues'). This in depth examination of Oregon's Senate Bill 1085 includes
background and legislative history, a section by section analysis and some
concluding thoughts.
OREGON MEDICAL MARIJUANA ACT AMENDED
Limits
increased, some affirmative defenses repealed, other changes enacted
by
Leland R. Berger, esq. *
Background
and Legislative History1
Win or lose a statewide initiative, some legislative
response seems inevitable. Following passage of the Oregon Medical Marijuana
Act (hereinafter ‘the Act’ or ‘OMMA’) at the November, 1998 General Election,
for example, the 1999 legislature amended the Act at the insistence of law
enforcement, restrained only by legislators who believe that the initiative
power reflects the voice of the people, and by supporters of the Act. The
narrow defeat of Measure 33 at the 2004 general election, combined with the
passage of a bill in the House during the 2003 session that died in the Senate
made some legislation amending the OMMA this session inevitable.
Following the 2003 session, Senator Bill Morissette
(D-Springfield), (the chair of the Senate Health and Human Services Committee
who refused to give the 2003 bill that passed the House a hearing in the
Senate), wrote to Dr. Grant Higginson, the State Health Officer, requesting he
convene an interim legislative advisory committee. This committee, composed of
patients and their advocates, program administrators and law enforcement
representatives met 5 times. Although law enforcement representatives refused
to attend the final meeting to discuss the compromise Dr. Higginson had
drafted, some advocates (including our own Brian Michaels) presented this draft
to Senator Morissette who in turn introduced it as SB772.
Hearings were held before the Senate Health and Human
Services Committee, however, the Committee closed before the bill was finalized.
The bill was re-introduced as SB1085 in the Rules Committee at the request of
Senator Morissette and Senator Jeff Kruse (R-Roseburg, Vice-chair of the Senate
Health and Human Services Committee). Subject to an agreement on amending it in
the House, the Bill passed out of the Senate Rules Committee and, by a
unanimous vote, out of the Senate.
By the time it got to the House, the only Committee
still open was the House State and Federal Law Committee. The previously agreed
upon amendment was added, but also stuffed into the bill was a provision
amending ORS §475.340 in a way which would have allowed employers to
discriminate against patients based solely on their use, and, in doing so,
would have legislatively ‘fixed’ the Court of Appeals’ decision in Washburn
v. Columbia Forest Products, 197 Or App 104, 104 P3d 609, rev.
allowed 339 Or 156 (2005). With these amendments, SB1085
passed back out to the Senate, where it seemed as if it were dead.
During the final all night session of 2005
Legislature, a Senate Conference Committee deleted the offending amendment and
the bill passed out of the Senate, and re-passed in the House. On August 29,
2005 the Governor signed this bill into law. The amendments will become
effective on January 1, 2006.
Section 1 amends the OMMA’s
definitions statute, ORS §475.302, in two ways. It adds to the definition of
‘Delivery’ this sentence: ““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.”
This is somewhat ambiguous as application of this
definition to the term ‘delivery’ as it is used elsewhere in the Act2 can
create a construction contrary to the intent of this legislation. The clear
intent of this section was to codify that cardholders sharing medical marijuana
(including ‘usable marijuana,' seedlings or starts and mature plants) are
protected from state criminal law, so long as they are within the limits, and
not engaging in unprotected activity.
The second amendment is to define a “Marijuana grow
site” as ‘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.’ More on this in the discussion on Sections 8 and
9, below.
Section 2 amends ORS §475.306 (the
statute governing limits for cardholders) by repealing the limits (they are
re-defined in Section 9) and also repealing the cardholder affirmative defense
for being over the limit. It enacts a new requirement, at law enforcement’s
request, that cardholders who are ‘using or transporting marijuana in a
location other than the residence of the cardholder’ must possess the registry
identification card when doing so.
More significantly, Section 2 amends the direction to
the Department of Human Services to define by rule when a plant is mature and
when it is immature by enacting this definition: “a plant that has no flowers
and that is less than 12 inches in height and less than 12 inches in diameter
is a seedling or a start and is not a mature plant.” The legislative intent
here was that to constitute a ‘mature plant,’ all three prerequisites must be
met.
Section 3 amends §475.309, the
registry section of the OMMA to include a requirement that a new category of
person (denominated ‘the person responsible for the grow site’) register, and
also requiring that the applicant (i.e. patient)
state in writing “whether the marijuana will be produced at a location where
the cardholder or designated primary caregiver is present or at another
location. It also adds ‘the person responsible for the grow site’ to cardholder
and designated primary caregiver to define which people can collectively
possess the permitted amounts of medical marijuana.
Section 4 extends the protections of
the OMMA to licensed health care professionals in licensed health care
facilities who are administering medical marijuana to a patient who resides in
the facility. Denominated the ‘Ken Brown’ provision, for the Measure 33
co-chief petitioner who was paralyzed from the neck down in an accident
involving a drunk driver, this provision was a part of the legislative advisory
committee proposal. At the request of counsel for the Oregon Medical
Association, this section also clarifies that no licensed health care
professional may be required to administer medical marijuana, and, paralleling
language from §475.340 related to employment, provides that no licensed health
care facility is required ‘to make accommodations for the administration of
medical marijuana.' It also provides that if the method of administration of
the medical marijuana is smoke, that there be adequate ventilation.
Section 5 amends §475.331, relating to
disclosure of registry information to law enforcement. It expands the required
registry to include ‘the address of the authorized marijuana grow sites.’ It
mandates that the Department of Human Services develop a system which would
allow law enforcement to verify, 24 hours a day/7days a week whether a person
is registered as a patient or a designated primary caregiver. It codifies the
current practice of requiring ‘adequate identification, such as a badge number
or similar authentication of authority.’ Most significantly, post-Raich,3 it
prohibits the rerelease or use of this information ‘for any purpose other than
verification’ that the cardholder is a cardholder and that the place is an
authorized marijuana grow site.’ Although Section 5 does not require the
creation of a Person Responsible for a Marijuana Grow Site registry, advocates
for the OMMA anticipate that the Department of Human Services will include such
a registry as a part of the registry required to be created under Section 8 of
this 2005 Act.
Section 6 adds to the OMMA the new
material contained within Sections 7,8,9 and 10 of the 2005 amendment.
Section 7 creates a formal Advisory
Committee to codify the existing process. In the summer of 2002, patients and
their advocates protested the Department’s decision to withhold the issuance of
cards incidental to their discovery of three cards being issued where the
attending physician’s signature was forged. The ad
hoc committee met monthly at first, and has met quarterly
for the last two years. One interesting facet of the new advisory committee is
that the director of the Department of Human Services is required to appoint 11
members ‘from persons who possess registry identification cards, designated
primary caregivers of person who possess registry identification cards and
advocates of the Oregon Medical Marijuana Act.’ As law enforcement has
consistently opposed the Act, presumably the committee will have no law
enforcement representation.
This provision was a part of the legislative advisory
committee’s proposal, originally introduced as SB772.
Section 8 is entirely new, and was the
result of legislative compromise4.
This section mandates that the department create ‘a marijuana grow site
registration system to authorize production of marijuana by a registry
identification cardholder, a designated primary caregiver who grows marijuana
for the cardholder or a person who is responsible for a marijuana grow site.’
The grow site registry card is issued to the registry identification cardholder
(patient), who is required to display the card at the grow site, whenever
marijuana is being produced. If marijuana is being cultivated for more than one
registry identification cardholder (patient) at one grow site, each registry
identification cardholder’s grow site registration card must be posted there.
This section also provides that:
All usable marijuana, plants, seedlings and seeds
associated with the production of marijuana for a registry identification
cardholder by a person responsible for a grow site are the property of the
registry identification cardholder and must be provided to the registry
identification cardholder upon request.
If a patient is convicted of manufacturing or
delivering a Schedule 1 or 2 controlled substance, the patient’s grow site
registration card is restricted in that the patient is prohibited from
cultivating for 5 years. The patient could still designate a person responsible
for a marijuana grow site to cultivate for him or her, but the patient could
not be present at the grow site. A similarly convicted non-patient would also
be so restricted. A second violation results in a lifetime restriction.
Finally, this section authorizes the patient or the
designated primary caregiver to: 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.
Section 8a clarifies that the grow site
restrictions incidental to MCS/DCS convictions only applies if the conviction
relates to a ‘violation of ORS 475.992(1)(a) or (b) that occurred on or after
the effective date of this 2005 Act.’ The intent here was that the offense post
date the act, not just the date of the conviction, so as to avoid ex
post facto problems.
Section 9 sets the new limits for
production and possession under the OMMA. Patients can have up to 6 mature
plants, 18 marijuana starts or seedlings and up to 24 ounces of usable
marijuana. Unlike current law, there is no distinction in amounts depending on
whether one is at the marijuana grow site or away from the garden. Patients
whose cards are restricted by virtue of an MCS/DCS conviction are limited to possessing
one ounce.
Multi-patient gardens are more complicated.
If the patient, or the patient’s designated primary
caregiver is not present at the garden, the
‘person responsible for the marijuana grow site’ may produce up to 6 mature
plants, 18 starts or seedlings and may possess up to 24 ounces of usable
marijuana for up to four registry identification cardholders or their
designated primary caregivers per year. Thus, a total of 24 mature plants, 76
seedlings or starts and 6 pounds of usable marijuana may be present at such a
location. When the garden ceases producing marijuana, or upon request from the
patient or the patient’s designated primary caregiver, the person responsible
for the grow site must provide all marijuana produces to the patient or the
cardholder’s designated primary caregiver.
What is less clear are the different permutations
which currently exist. For example, in a multi-patient dwelling, where all are
present at the garden site, it would follow that there could be 6 mature
plants, 18 starts or seedlings and 24 ounces for each patient. As there is no
restriction in the OMMA as to the number of patients for whom a person can be
the ‘designated primary caregiver’5, it
should follow that such a caregiver actually present at the grow site should be
able to cultivate 6 mature plants, 18 starts or seedlings and possess 24 ounces
for each patient for whom the person is providing care. There was some
discussion during the hearings on SB772, however, suggesting that the
legislature reads the statutory definition of ‘designated primary caregiver’
less broadly than do the advocates of the law.
OMMA advocates hope and expect that these scenarios
will be clarified through administrative rulemaking.
Section 10 codifies the current
practice in many counties limiting the number of plants or quantity of usable
marijuana seizable by law enforcement to those plants or seedlings or usable
marijuana ‘that are in excess of the amount or number authorized.’ This would
prohibit the practice of other counties where law enforcement have a scorched
earth policy of taking all the medicine.
Section 11 corrects an oversight in the
section protecting physicians by clarifying that the physicians who are
protected are the ‘attending’ physicians. See,
ORS 475.302(1), OAR 333-008-0010 (1).
Section 12 repeals the that portion of
the affirmative defense for non-cardholders which allowed medical necessity
evidence to explain possession or cultivation outside of the statutory limits.
It does not repeal the overall defense, and leaves intact the choice of evils
defense and the ability to present medical necessity evidence.
The 2005 legislative amendments to the OMMA are
principally predicated on three premises. The first, articulated by Stormy Ray,
(a co-chief petitioner of the 1998 initiative) during a hearing before the
Senate Health and Human Services Committee is that the production of
therapeutic cannabis for patients is a charitable event. The second,
articulated repeatedly by Stormy Ray Foundation board member Jerry Wade is that
the patient owns the medicine. The third, explained in some detail on the SRF
website6 is the ability to produce a perpetual supply of
therapeutic grade cannabis using 18 starts and six mature plants.
The fundamental flaw here is two-fold. First, although
this system may work for Stormy and Jerry, it will not work for all patients.
Most simply stated, it presupposes that codifying the ability to share medicine
will make up for crop failure. Second, for many outdoor annual patients and
their growers, the limits are inadequate to provide for a year’s supply. And
lastly, those for whom more medical cannabis is medically necessary will be
unable to defend against MCS/DCS/PCS charges, and will be left only to argue
mitigation at sentencing.
On the other hand, many, many patients who are
currently outside the protection of the OMMA will be able to come within the
protection. The new limits are higher than any other state legislature has
approved. Codification of 24/7 access for verification and the restriction on
the redistribution of the patient verifying information will greatly help
patients. And the legislative mandate that convicted patients be restricted
only as to cultivation creates an additional argument why probationers should
be allowed to use this medicine while on probation.
* OCDLA Sustaining member Leland Berger practices
statewide from his home in NE Portland.
The assistance of . . .
Attorneys Anthony L. Johnson and Brian L.
Michaels, and OMMA Advocates Dr. Rick Bayer (Co-chief Petitioner, OMMA (1998)),
Madeline Martinez (Executive Director, Oregon NORML), Alicia Williamson (Board
Member, Oregon NORML), John Sajo (Voter Power, Co-chief petitioner and
spokesman for Measure 33 (2004)), and Laird Funk (Volunteer Lobbyist)
. . . in the drafting of this article is
gratefully acknowledged.
1 Legislative History of SB 772 from Oregon Legislature’s
website:
SB 772 By Senator MORRISETTE -- Relating to medical
marijuana.
2-21(S) Introduction and first reading. Referred to
President's desk.
2-23 Referred to Human Services, then Ways and Means.
3-10 Public Hearing held.
4-28 Public Hearing held.
6-1 Work Session held.
8-5 In committee upon adjournment. Legislative History of
SB1085 from Oregon Legislature’s website: SB 1085 By COMMITTEE ON RULES (at the
request of Senator Bill Morrisette and Senator Jeff Kruse) -- Relating to
medical marijuana.
6-23(S) Introduction and first reading. Referred to
President's desk.
6-27 Referred to Rules, then Budget.
7-1 Public Hearing and Work Session held.
7-8 Recommendation: Do pass with amendments and be referred
to Budget by prior reference. (Printed A-Eng.)
7-14 Work Session held.
7-19 Recommendation: Do pass the A-Eng. bill. Second
reading.
7-20 Third reading. Carried by Kruse, Morrisette. Passed.
Ayes, 30. Carter, absent, granted unanimous consent to be recorded as voting
aye.
7-21(H) First reading. Referred to Speaker's desk. Referred
to State and Federal Affairs.
7-29 Public Hearing and Work Session held.
7-30 Recommendation: Do pass with amendments and be printed
B-Engrossed.
8-1 Rules suspended. Second reading.
8-2 Third reading. Carried by Flores. Passed. Ayes, 39;
Nays, 14--Ackerman, Avakian, Barnhart, Beyer, Buckley, Dingfelder, Hansen,
Holvey, Kropf, Merkley, Nolan, Rosenbaum, Shields, Wirth; Excused, 2--Barker,
Brown; Excused for Business of the House, 5--Farr, Greenlick, Kitts, March,
Thatcher. Vote explanation(s) filed by Tomei.
8-3(S) Rules suspended. Senate refused to concur in House
amendments. Ayes, 19; Nays, 11--Atkinson, Beyer, Ferrioli, Kruse, Morse,
Nelson, Starr, B., Starr, C., Westlund, Whitsett, Winters. 8-3(H)
Representatives Flores, Olson, Macpherson appointed House conferees.
8-4(S) Senators Prozanski, Atkinson, Morrisette, appointed
Senate conferees. Work Session held.
Conference Committee Recommendation: The Senate concur in House
amendments dated 07-30 and B-Engrossed bill be further amended and repassed.
(Amendments distributed.)
8-4(H) Conference Committee Report read in House.
8-4(S) Rules suspended. Senate adopted Conference Committee
Report and repassed bill. Ayes, 26;
Absent, 1--Whitsett; Attending Legislative Business, 3--Deckert, Devlin,
Westlund.
8-4(H) Rules suspended. House adopted Conference Committee
Report.
2 The term delivery is included in the definition of “Medical
use of marijuana” in §475.302(7) (post 1/1/06, 475.302(8)), in explaining the
scope of exception from state criminal law in §475.309(1), in §475.316(1)(c)
and (1)(d) in explaining what conduct takes one out of the protection of the
law (delivery to a noncardholder or delivery to anyone for consideration) and
in §475.342, explaining generally that what is not authorized by the OMMA is
not protected from criminal prosecution.
3 Gonzales v. Raich, 542 US ___,
125 S. Ct 2195, 162 LEd2d ___ (2005) (Holding that congress’ commerce clause
power authorizes the federal criminalization of the personal, intrastate
cultivation, non-commercial distribution and medical use of therapeutic
cannabis.)
4 In addition to Senators Morrisette and Kruse, Senator Floyd
Prozanski (D-Eugene) and Representative Steve March (D-Portland) were closely
involved in the drafting of this bill.
5 Although not central to her ruling in the case, Senior
Klamath County Judge Karla Knieps opined, in a Clackamas County case, that as
there is no statute or administrative rule authorizing a designated primary
caregiver to provide care to more than one patient, there was no protection
under the OMMA for those who did so. DHS raised a similar argument in the
defense of a declaratory judgment action.
6 www.stormyray.org/ommaway/patient_garden.htm
But
Wait, There’s More!
What's
just as remarkable is that S.B. 1085 almost allowed employers to fire medical
marijuana patients for going to work sober.
On
Friday, July 29, 2005 the House Committee on State and Federal Affairs made a
surprise amendment to S.B. 1085 — a bill dealing with medical
marijuana plant limits — that would allow employers to fire Oregon's
medical marijuana patients for going to work sober.
That's
right, with less than a day to go in the session, S.B. 1085 still contained a
provision that would have allowed employers to fire medical marijuana patients
simply for testing positive for marijuana metabolites. No actual impairment on
the job would have been required.
Under
the amended bill, patients need not even be under the influence to lose their
jobs, they must simply have marijuana metabolites in their system. The
Republican-controlled House committee added the employment provision to S.B.
1085, which mirrors language in H.B. 2693, a bill that languished and died in
the Senate Rules Committee, then passed S.B. 1085 to the House floor. Agencies like the ACLU were fuming.
“When
this bill passed the Senate it represented a carefully crafted compromise.
Unfortunately, the House State and Federal Affairs Committee added a divisive
amendment pushed by some employers that undermines the fragile balance of the
bill,” the ACLU said in a floor statement to members of the House.