Bill Text: MI HB4851 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Health; medical marihuana; definition of "bona fide physician-patient relationship", "enclosed, locked facility", and "primary caregiver"; clarify and condition privilege from arrest on presentation of I.D. Amends secs. 3, 4 & 8 of 2008 IL 1 (MCL 333.26423 et seq.).
Spectrum: Bipartisan Bill
Status: (Passed) 2012-12-31 - Assigned Pa 512'12 With Immediate Effect 2012 Addenda [HB4851 Detail]
Download: Michigan-2011-HB4851-Engrossed.html
HB-4851, As Passed Senate, December 14, 2012
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 4851
A bill to amend 2008 IL 1, entitled
"Michigan medical marihuana act,"
by amending sections 3, 4, and 8 (MCL 333.26423, 333.26424, and
333.26428).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
3. Definitions.
Sec. 3. As used in this act:
(a) "Bona fide physician-patient relationship" means a
treatment or counseling relationship between a physician and
patient in which all of the following are present:
(1) The physician has reviewed the patient's relevant medical
records and completed a full assessment of the patient's medical
history and current medical condition, including a relevant, in-
person, medical evaluation of the patient.
(2) The physician has created and maintained records of the
patient's condition in accord with medically accepted standards.
(3) The physician has a reasonable expectation that he or she
will provide follow-up care to the patient to monitor the efficacy
of the use of medical marihuana as a treatment of the patient's
debilitating medical condition.
(4) If the patient has given permission, the physician has
notified the patient's primary care physician of the patient's
debilitating medical condition and certification for the use of
medical marihuana to treat that condition.
(b) (a)
"Debilitating medical
condition" means 1 or more of
the following:
(1) Cancer, glaucoma, positive status for human
immunodeficiency virus, acquired immune deficiency syndrome,
hepatitis C, amyotrophic lateral sclerosis, Crohn's disease,
agitation of Alzheimer's disease, nail patella, or the treatment of
these conditions.
(2) A chronic or debilitating disease or medical condition or
its treatment that produces 1 or more of the following: cachexia or
wasting syndrome; severe and chronic pain; severe nausea; seizures,
including but not limited to those characteristic of epilepsy; or
severe and persistent muscle spasms, including but not limited to
those characteristic of multiple sclerosis.
(3) Any other medical condition or its treatment approved by
the
department, as provided for in section 5(a).6(k).
(c) (b)
"Department" means the state
department of community
health.department of licensing and regulatory
affairs.
(d) (c)
"Enclosed, locked
facility" means a closet, room, or
other comparable, stationary, and fully enclosed area equipped with
secured locks or other functioning security devices that permit
access only by a registered primary caregiver or registered
qualifying patient. Marihuana plants grown outdoors are considered
to be in an enclosed, locked facility if they are not visible to
the unaided eye from an adjacent property when viewed by an
individual at ground level or from a permanent structure and are
grown within a stationary structure that is enclosed on all sides,
except for the base, by chain-link fencing, wooden slats, or a
similar material that prevents access by the general public and
that is anchored, attached, or affixed to the ground; located on
land that is owned, leased, or rented by either the registered
qualifying patient or a person designated through the departmental
registration process as the primary caregiver for the registered
qualifying patient or patients for whom the marihuana plants are
grown; and equipped with functioning locks or other security
devices that restrict access to only the registered qualifying
patient or the registered primary caregiver who owns, leases, or
rents the property on which the structure is located. Enclosed,
locked facility includes a motor vehicle if both of the following
conditions are met:
(1) The vehicle is being used temporarily to transport living
marihuana plants from 1 location to another with the intent to
permanently retain those plants at the second location.
(2) An individual is not inside the vehicle unless he or she
is either the registered qualifying patient to whom the living
marihuana plants belong or the individual designated through the
departmental registration process as the primary caregiver for the
registered qualifying patient.
(e) (d)
"Marihuana" means that
term as defined in section 7106
of the public health code, 1978 PA 368, MCL 333.7106.
(f) (e)
"Medical use" means the
acquisition, possession,
cultivation, manufacture, use, internal possession, delivery,
transfer, or transportation of marihuana or paraphernalia relating
to the administration of marihuana to treat or alleviate a
registered qualifying patient's debilitating medical condition or
symptoms associated with the debilitating medical condition.
(g) (f)
"Physician" means an
individual licensed as a
physician under Part 170 of the public health code, 1978 PA 368,
MCL 333.17001 to 333.17084, or an osteopathic physician under Part
175 of the public health code, 1978 PA 368, MCL 333.17501 to
333.17556.
(h) (g)
"Primary caregiver" or "caregiver" means a person who
is at least 21 years old and who has agreed to assist with a
patient's
medical use of marihuana and who has never been convicted
of
a felony involving illegal drugs.not been convicted of any
felony within the past 10 years and has never been convicted of a
felony involving illegal drugs or a felony that is an assaultive
crime as defined in section 9a of chapter X of the code of criminal
procedure, 1927 PA 175, MCL 770.9a.
(i) (h)
"Qualifying patient" or "patient" means a person who
has been diagnosed by a physician as having a debilitating medical
condition.
(j) (i)
"Registry identification
card" means a document issued
by the department that identifies a person as a registered
qualifying patient or registered primary caregiver.
(k) (j)
"Usable marihuana" means
the dried leaves and flowers
of the marihuana plant, and any mixture or preparation thereof, but
does not include the seeds, stalks, and roots of the plant.
(l) (k)
"Visiting qualifying
patient" means a patient who is
not a resident of this state or who has been a resident of this
state for less than 30 days.
(m) (l) "Written
certification" means a document signed by a
physician,
stating the all of the
following:
(1)
The patient's debilitating medical
condition. and stating
that,
in
(2) The physician has completed a full assessment of the
patient's medical history and current medical condition, including
a relevant, in-person, medical evaluation.
(3) In the physician's professional opinion, the patient is
likely to receive therapeutic or palliative benefit from the
medical use of marihuana to treat or alleviate the patient's
debilitating medical condition or symptoms associated with the
debilitating medical condition.
4. Protections for the Medical Use of Marihuana.
Sec. 4. (a) A qualifying patient who has been issued and
possesses a registry identification card shall not be subject to
arrest, prosecution, or penalty in any manner, or denied any right
or privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or professional
licensing board or bureau, for the medical use of marihuana in
accordance with this act, provided that the qualifying patient
possesses an amount of marihuana that does not exceed 2.5 ounces of
usable marihuana, and, if the qualifying patient has not specified
that a primary caregiver will be allowed under state law to
cultivate marihuana for the qualifying patient, 12 marihuana plants
kept in an enclosed, locked facility. Any incidental amount of
seeds, stalks, and unusable roots shall also be allowed under state
law and shall not be included in this amount. The privilege from
arrest under this subsection applies only if the qualifying patient
presents both his or her registry identification card and a valid
driver license or government-issued identification card that bears
a photographic image of the qualifying patient.
(b) A primary caregiver who has been issued and possesses a
registry identification card shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right or
privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or professional
licensing board or bureau, for assisting a qualifying patient to
whom he or she is connected through the department's registration
process with the medical use of marihuana in accordance with this
act. ,
provided that The privilege
from arrest under this
subsection applies only if the primary caregiver presents both his
or her registry identification card and a valid driver license or
government-issued identification card that bears a photographic
image of the primary caregiver. This subsection applies only if the
primary caregiver possesses an amount of marihuana that does not
exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient
to whom he or she is connected through the department's
registration process; and
(2) for each registered qualifying patient who has specified
that the primary caregiver will be allowed under state law to
cultivate marihuana for the qualifying patient, 12 marihuana plants
kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable
roots.
(c) A person shall not be denied custody or visitation of a
minor for acting in accordance with this act, unless the person's
behavior is such that it creates an unreasonable danger to the
minor that can be clearly articulated and substantiated.
(d) There shall be a presumption that a qualifying patient or
primary caregiver is engaged in the medical use of marihuana in
accordance with this act if the qualifying patient or primary
caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not
exceed the amount allowed under this act. The presumption may be
rebutted by evidence that conduct related to marihuana was not for
the purpose of alleviating the qualifying patient's debilitating
medical condition or symptoms associated with the debilitating
medical condition, in accordance with this act.
(e) A registered primary caregiver may receive compensation
for costs associated with assisting a registered qualifying patient
in the medical use of marihuana. Any such compensation shall not
constitute the sale of controlled substances.
(f) A physician shall not be subject to arrest, prosecution,
or penalty in any manner, or denied any right or privilege,
including but not limited to civil penalty or disciplinary action
by the Michigan board of medicine, the Michigan board of
osteopathic medicine and surgery, or any other business or
occupational or professional licensing board or bureau, solely for
providing written certifications, in the course of a bona fide
physician-patient relationship and after the physician has
completed a full assessment of the qualifying patient's medical
history, or for otherwise stating that, in the physician's
professional opinion, a patient is likely to receive therapeutic or
palliative benefit from the medical use of marihuana to treat or
alleviate the patient's serious or debilitating medical condition
or symptoms associated with the serious or debilitating medical
condition, provided that nothing shall prevent a professional
licensing board from sanctioning a physician for failing to
properly evaluate a patient's medical condition or otherwise
violating the standard of care for evaluating medical conditions.
(g) A person shall not be subject to arrest, prosecution, or
penalty in any manner, or denied any right or privilege, including
but not limited to civil penalty or disciplinary action by a
business or occupational or professional licensing board or bureau,
for providing a registered qualifying patient or a registered
primary caregiver with marihuana paraphernalia for purposes of a
qualifying patient's medical use of marihuana.
(h) Any marihuana, marihuana paraphernalia, or licit property
that is possessed, owned, or used in connection with the medical
use of marihuana, as allowed under this act, or acts incidental to
such use, shall not be seized or forfeited.
(i) A person shall not be subject to arrest, prosecution, or
penalty in any manner, or denied any right or privilege, including
but not limited to civil penalty or disciplinary action by a
business or occupational or professional licensing board or bureau,
solely for being in the presence or vicinity of the medical use of
marihuana in accordance with this act, or for assisting a
registered qualifying patient with using or administering
marihuana.
(j) A registry identification card, or its equivalent, that is
issued under the laws of another state, district, territory,
commonwealth, or insular possession of the United States that
allows the medical use of marihuana by a visiting qualifying
patient, or to allow a person to assist with a visiting qualifying
patient's medical use of marihuana, shall have the same force and
effect as a registry identification card issued by the department.
(k) Any registered qualifying patient or registered primary
caregiver who sells marihuana to someone who is not allowed to use
marihuana for medical purposes under this act shall have his or her
registry identification card revoked and is guilty of a felony
punishable by imprisonment for not more than 2 years or a fine of
not more than $2,000.00, or both, in addition to any other
penalties for the distribution of marihuana.
8. Affirmative Defense and Dismissal for Medical Marihuana.
Sec.
8. (a) Except as provided in section 7, 7(b), a patient
and a patient's primary caregiver, if any, may assert the medical
purpose for using marihuana as a defense to any prosecution
involving marihuana, and this defense shall be presumed valid where
the evidence shows that:
(1) A physician has stated that, in the physician's
professional opinion, after having completed a full assessment of
the patient's medical history and current medical condition made in
the course of a bona fide physician-patient relationship, the
patient is likely to receive therapeutic or palliative benefit from
the medical use of marihuana to treat or alleviate the patient's
serious or debilitating medical condition or symptoms of the
patient's serious or debilitating medical condition;
(2) The patient and the patient's primary caregiver, if any,
were collectively in possession of a quantity of marihuana that was
not more than was reasonably necessary to ensure the uninterrupted
availability of marihuana for the purpose of treating or
alleviating the patient's serious or debilitating medical condition
or symptoms of the patient's serious or debilitating medical
condition; and
(3) The patient and the patient's primary caregiver, if any,
were engaged in the acquisition, possession, cultivation,
manufacture, use, delivery, transfer, or transportation of
marihuana or paraphernalia relating to the use of marihuana to
treat or alleviate the patient's serious or debilitating medical
condition or symptoms of the patient's serious or debilitating
medical condition.
House Bill No. 4851 as amended December 5, 2012
(b) A person may assert the medical purpose for using
marihuana in a motion to dismiss, and the charges shall be
dismissed following an evidentiary hearing where the person shows
the elements listed in subsection (a).
(c) If a patient or a patient's primary caregiver demonstrates
the patient's medical purpose for using marihuana pursuant to this
section, the patient and the patient's primary caregiver shall not
be subject to the following for the patient's medical use of
marihuana:
(1) disciplinary action by a business or occupational or
professional licensing board or bureau; or
(2) forfeiture of any interest in or right to property.
<<Enacting section 1. This amendatory act takes effect
April 1, 2013.>>
