HB-5104, As Passed House, December 12, 2013

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5104

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 2008 IL 1, entitled

 

"Michigan medical marihuana act,"

 

by amending sections 3, 4, 7, and 8 (MCL 333.26423, 333.26424,

 

333.26427, and 333.26428), sections 3, 4, and 8 as amended by 2012

 

PA 512, and by adding section 4a.

 

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 medical

 

use of medical marihuana to treat that condition.

 

     (b) "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 6(k).

 


     (c) "Department" means the department of licensing and

 

regulatory affairs.

 

     (d) "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.

 


House Bill No. 5104 (H-2) as amended December 11, 2013

     (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) "Marihuana" means that term as defined in section 7106 of

 

the public health code, 1978 PA 368, MCL 333.7106.

 

     (f) "Marihuana-infused product" means a topical formulation,

 

tincture, beverage, edible substance, or similar product containing

 

any usable marihuana that is intended for human consumption in a

 

manner other than smoke inhalation. [MARIHUANA-INFUSED PRODUCT SHALL NOT

BE CONSIDERED A FOOD FOR PURPOSES OF THE FOOD LAW, 2000 PA 92, MCL 289.1101 TO 289.8111.]

 

     (g) (f) "Medical use of marihuana" means the acquisition,

 

possession, cultivation, manufacture, extraction, use, internal

 

possession, delivery, transfer, or transportation of marihuana,

 

usable marihuana, or paraphernalia relating to the administration

 

of usable marihuana to treat or alleviate a registered qualifying

 

patient's debilitating medical condition or symptoms associated

 

with the debilitating medical condition.

 

     (h) (g) "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.

 

     (i) (h) "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 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.

 

     (j) (i) "Qualifying patient" or "patient" means a person who

 

has been diagnosed by a physician as having a debilitating medical

 

condition.

 

     (k) (j) "Registry identification card" means a document issued

 

by the department that identifies a person as a registered

 

qualifying patient or registered primary caregiver.

 

     (l) (k) "Usable marihuana" means the dried leaves, and flowers,

 

plant resin, or extract of the marihuana plant, and any mixture or

 

preparation thereof, but does not include the seeds, stalks, and

 

roots of the plant.

 

     (m) "Usable marihuana equivalent" means the amount of usable

 

marihuana in a marihuana-infused product that is calculated as

 

provided in section 4(c).

 

     (n) (l) "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.

 

     (o) (m) "Written certification" means a document signed by a

 

physician, stating all of the following:

 

     (1) The patient's debilitating medical condition.

 

     (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 usable marihuana equivalents, 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. 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 usable marihuana and usable marihuana

 

equivalents 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) For purposes of determining usable marihuana equivalency,

 

1 ounce of usable marihuana shall be considered equivalent to the

 

following:

 

     (1) 16 ounces of marihuana-infused product if in a solid form.

 

     (2) 7 grams of marihuana-infused product if in a gaseous form.

 

     (3) 72 fluid ounces of marihuana-infused product if in a

 

liquid form.

 


     (d) (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.

 

     (e) (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 and usable

 

marihuana that does not exceed the amount allowed under this act.

 

The presumption may be rebutted by evidence that conduct related to

 

marihuana and usable 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.

 

     (f) (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.

 

     (g) (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.

 

     (h) (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.

 

     (i) (h) Any marihuana, usable 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.

 

     (j) (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

 

or usable marihuana.

 

     (k) (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.

 

     (l) (k) Any registered qualifying patient or registered primary

 

caregiver who sells marihuana or usable marihuana to someone who is

 

not allowed to use marihuana for medical purposes medical use of

 

marihuana 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.

 

     (m) A person is not subject to arrest, prosecution, or penalty

 

in any manner, and shall not be 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 manufacturing marihuana-infused product if the person

 

is any of the following:

 

     (1) A registered patient, manufacturing for his or her own

 


House Bill No. 5104 (H-2) as amended December 11, 2013

                          as amended December 12, 2013

personal use.

 

     (2) A primary caregiver, manufacturing for the use of a

 

patient to whom he or she is connected through the department's

 

registration process.

 

     (3) A medical marihuana provisioning center.

 

     (n) Except when being manufactured or consumed, any marihuana-

 

infused product must be individually packaged and clearly labeled

 

with all of the following:

 

     (1) The weight of the marihuana-infused product [IN OUNCES. THERE

 SHALL BE A REBUTTABLE PRESUMPTION THAT THE LISTED WEIGHT OF THE MARIHUANA-INFUSED PRODUCT IS TRUE AND CORRECT].

 

     (2) The name of the individual who manufactured the marihuana-

 

infused product.

 

     (3) The date on which the marihuana-infused product was

 

manufactured.

 

     (4) If the patient received the marihuana-infused product from

 

his or her primary caregiver or a medical marihuana provisioning

 

center, the date on which the transaction occurred.

 

     (5) If the patient received the marihuana-infused product from

 

his or her primary caregiver or a medical marihuana provisioning

 

center, the name of the primary caregiver or medical marihuana

 

provisioning center.

 

     (o) Each of the following is a [FELONY PUNISHABLE BY IMPRISONMENT

 

FOR NOT MORE THAN 2 YEARS, A FINE OF UP TO $2,000.00], or both:

 

     (1) A qualifying patient shall not transfer a marihuana-

 

infused product to any individual.

 

     (2) A registered caregiver shall not transfer a marihuana-

 

infused product to any individual who is not a qualifying patient

 

to whom he or she is connected through the department's

 


House Bill No. 5104 (H-2) as amended December 12, 2013

registration process.

 

     (3) A medical marihuana provisioning center shall not transfer

 

a marihuana-infused product to any individual who is not a

 

qualifying patient or registered caregiver.

     [(p) In a public place, the privilege from arrest under subsection (a) or (b) does not apply unless all of the following apply:

     (1) The usable marihuana and marihuana-infused product are packaged and each package is labeled with the weight of the usable marihuana.

     (2) The total weight indicated on the package labels is not more than the amount permitted under subsection (a) or (b). The indicated weight is presumed to be true and correct. however, this presumption does not prohibit a law enforcement official from arresting an individual if there is an articulable suspicion that the indicated weight is not correct and the total weight is greater than the amount permitted under subsection (a) or (b).]

     Sec. 4a. (1) This section does not apply unless the medical

 

marihuana provisioning center regulation act is enacted into law.

 

     (2) [A                      ] person is not subject to

 

arrest, prosecution, or criminal penalty for a transfer or use of

 

marihuana or usable marihuana equivalents in an amount authorized

 

by law and in conformity with any restrictions in this act or the

 

medical marihuana provisioning center regulation act. [HOWEVER, A

QUALIFYING PATIENT OR REGISTERED CAREGIVER SHALL NOT TRANSFER MORE THAN 50 OUNCES OF USABLE MARIHUANA TO A MEDICAL MARIHUANA PROVISIONING CENTER DURING A 60-CALENDAR-DAY PERIOD.]

 

     7. Scope of Act.

 

     Sec. 7. (a) The medical use of marihuana is allowed under

state law to the extent that it is carried out in accordance with

the provisions of this act.

     (b) This act shall not permit any person to do any of the

following:

     (1) Undertake any task under the influence of marihuana, when

doing so would constitute negligence or professional malpractice.

     (2) Possess marihuana or usable marihuana, or otherwise engage

in the medical use of marihuana:

     (A) in a school bus;

 

     (B) on the grounds of any preschool or primary or secondary

 

school; or

 

     (C) in any correctional facility.

 

     (3) Smoke marihuana:

 

     (A) on any form of public transportation; or

 


     (B) in any public place.

 

     (4) Operate, navigate, or be in actual physical control of any

 

motor vehicle, aircraft, or motorboat while under the influence of

 

marihuana.

 

     (5) Use marihuana or usable marihuana if that person does not

 

have a serious or debilitating medical condition.

 

     (c) Nothing in this act shall be construed to require:

 

     (1) A government medical assistance program or commercial or

 

non-profit health insurer to reimburse a person for costs

 

associated with the medical use of marihuana.

 

     (2) An employer to accommodate the ingestion of marihuana or

 

usable marihuana in any workplace or any employee working while

 

under the influence of marihuana or usable marihuana.

 

     (d) Fraudulent representation to a law enforcement official of

 

any fact or circumstance relating to the medical use of marihuana

 

to avoid arrest or prosecution shall be punishable by a fine of

 

$500.00, which shall be in addition to any other penalties that may

 

apply for making a false statement or for the use of marihuana or

 

usable marihuana other than use undertaken pursuant to this act.

 

     (e) All other acts and parts of acts inconsistent with this

 

act do not apply to the medical use of marihuana as provided for by

 

this act.

 

     8. Affirmative Defense and Dismissal for Medical Marihuana.

 

     Sec. 8. (a) Except as provided in section 7(b), a patient and

 

a patient's primary caregiver, if any, may assert the medical

 

purpose for using marihuana or usable marihuana as a defense to any

 

prosecution involving marihuana or usable 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 and

 

usable marihuana that was not more than was reasonably necessary to

 

ensure the uninterrupted availability of marihuana or usable

 

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, usable 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.medical use of marihuana.

 

     (b) A person may assert the medical purpose for using

 

marihuana or usable 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 or usable

 

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.