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.>>