October 29, 2013, Introduced by Reps. Kowall, Shirkey, Callton, Goike, Daley, Crawford, Irwin, McMillin, Cavanagh, LaVoy, Lipton, Geiss, Bumstead, Singh, Switalski and Barnett and referred to the Committee on Judiciary.
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.
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 medical 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.
(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) "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.
(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.
(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.
(i) "Qualifying patient" or "patient" means a person who has
been diagnosed by a physician as having a debilitating medical
condition.
(j) "Registry identification card" means a document issued by
the department that identifies a person as a registered qualifying
patient or registered primary caregiver.
(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 or any inactive substance used as a delivery
medium for usable marihuana.
(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.
(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, 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 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 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.
(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, 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.
(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.
(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 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.
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.