February 18, 2015, Introduced by Senators SHIRKEY, HORN, KNEZEK, YOUNG and ANANICH and referred to the Committee on Judiciary.
A bill to amend 2008 IL 1, entitled
"Michigan medical marihuana act,"
by amending sections 3, 4, 6, 7, and 8 (MCL 333.26423, 333.26424,
333.26426, 333.26427, and 333.26428), sections 3, 4, and 8 as
amended by 2012 PA 512 and section 6 as amended by 2012 PA 514, 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.
(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 is 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 a total of
2.5 ounces of both 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 is
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 a total amount of usable
marihuana and usable
marihuana equivalents that does not exceed any of the following:
(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 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 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 is 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 complies with both of the following:
(1)
is Is in possession of a registry identification card. ;
and
(2)
is Is in possession of an amount of marihuana or usable
marihuana and usable marihuana equivalents that does not exceed the
amount allowed under this act. The presumption may be rebutted by
evidence that conduct related to marihuana or 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 does 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
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) A qualifying patient shall not transfer a marihuana-
infused product to any individual.
(o) 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
registration process.
(p) A medical marihuana provisioning center shall not transfer
a marihuana-infused product to any individual who is not a
qualifying patient or registered caregiver, or provisioning center
agent.
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 from or to a provisioning center 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 30-day calendar period.
6. Administering the Department's Rules.
Sec. 6. (a) The department shall issue registry identification
cards to qualifying patients who submit the following, in
accordance with the department's rules:
(1) A written certification;
(2) Application or renewal fee;
(3) Name, address, and date of birth of the qualifying
patient, except that if the applicant is homeless, no address is
required;
(4) Name, address, and telephone number of the qualifying
patient's physician;
(5) Name, address, and date of birth of the qualifying
patient's primary caregiver, if any;
(6) Proof of Michigan residency. For the purposes of this
subdivision, a person shall be considered to have proved legal
residency in this state if any of the following apply:
(i) The person provides a copy of a valid, lawfully obtained
Michigan driver license issued under the Michigan vehicle code,
1949 PA 300, MCL 257.1 to 257.923, or an official state personal
identification card issued under 1972 PA 222, MCL 28.291 to 28.300.
(ii) The person provides a copy of a valid Michigan voter
registration.
(7) If the qualifying patient designates a primary caregiver,
a designation as to whether the qualifying patient or primary
caregiver will be allowed under state law to possess marihuana
plants for the qualifying patient's medical use.
(b) The department shall not issue a registry identification
card to a qualifying patient who is under the age of 18 unless:
(1) The qualifying patient's physician has explained the
potential risks and benefits of the medical use of marihuana to the
qualifying patient and to his or her parent or legal guardian;
(2) The qualifying patient's parent or legal guardian submits
a written certification from 2 physicians; and
(3) The qualifying patient's parent or legal guardian consents
in writing to:
(A) Allow the qualifying patient's medical use of marihuana;
(B) Serve as the qualifying patient's primary caregiver; and
(C) Control the acquisition of the marihuana, the dosage, and
the frequency of the medical use of marihuana by the qualifying
patient.
(c) The department shall verify the information contained in
an application or renewal submitted pursuant to this section, and
shall approve or deny an application or renewal within 15 business
days of receiving it. The department may deny an application or
renewal only if the applicant did not provide the information
required pursuant to this section, or if the department determines
that the information provided was falsified. Rejection of an
application or renewal is considered a final department action,
subject to judicial review. Jurisdiction and venue for judicial
review are vested in the circuit court for the county of Ingham.
(d) The department shall issue a registry identification card
to the primary caregiver, if any, who is named in a qualifying
patient's approved application; provided that each qualifying
patient can have no more than 1 primary caregiver, and a primary
caregiver may assist no more than 5 qualifying patients with their
medical use of marihuana.
(e) The department shall issue registry identification cards
within 5 business days of approving an application or renewal,
which shall expire 2 years after the date of issuance. Registry
identification cards shall contain all of the following:
(1) Name, address, and date of birth of the qualifying
patient.
(2) Name, address, and date of birth of the primary caregiver,
if any, of the qualifying patient.
(3) The date of issuance and expiration date of the registry
identification card.
(4) A random identification number.
(5) A photograph, if the department requires one by rule.
(6) A clear designation showing whether the primary caregiver
or the qualifying patient will be allowed under state law to
possess the marihuana plants for the qualifying patient's medical
use, which shall be determined based solely on the qualifying
patient's preference.
(f) If a registered qualifying patient's certifying physician
notifies the department in writing that the patient has ceased to
suffer from a debilitating medical condition, the card shall become
null and void upon notification by the department to the patient.
(g) Possession of, or application for, a registry
identification card shall not constitute probable cause or
reasonable suspicion, nor shall it be used to support the search of
the person or property of the person possessing or applying for the
registry identification card, or otherwise subject the person or
property of the person to inspection by any local, county or state
governmental agency.
(h) The following confidentiality rules shall apply:
(1) Subject to subdivisions (3) and (4), applications and
supporting information submitted by qualifying patients, including
information regarding their primary caregivers and physicians, are
confidential.
(2) The department shall maintain a confidential list of the
persons to whom the department has issued registry identification
cards. Except as provided in subdivisions (3) and (4), individual
names and other identifying information on the list are
confidential and are exempt from disclosure under the freedom of
information act, 1976 PA 442, MCL 15.231 to 15.246.
(3) The department shall verify to law enforcement personnel
whether a registry identification card is valid, without disclosing
more information than is reasonably necessary to verify the
authenticity of the registry identification card.
(4) A person, including an employee, contractor, or official
of the department or another state agency or local unit of
government, who discloses confidential information in violation of
this act is guilty of a misdemeanor, punishable by imprisonment for
not more than 6 months, or a fine of not more than $1,000.00, or
both. Notwithstanding this provision, department employees may
notify law enforcement about falsified or fraudulent information
submitted to the department.
(i) The department shall submit to the legislature an annual
report that does not disclose any identifying information about
qualifying patients, primary caregivers, or physicians, but does
contain, at a minimum, all of the following information:
(1) The number of applications filed for registry
identification cards.
(2) The number of qualifying patients and primary caregivers
approved in each county.
(3) The nature of the debilitating medical conditions of the
qualifying patients.
(4) The number of registry identification cards revoked.
(5) The number of physicians providing written certifications
for qualifying patients.
(j) The department may enter into a contract with a private
contractor to assist the department in performing its duties under
this section. The contract may provide for assistance in processing
and issuing registry identification cards, but the department shall
retain the authority to make the final determination as to issuing
the registry identification card. Any contract shall include a
provision requiring the contractor to preserve the confidentiality
of information in conformity with subsection (h).
(k) Not later than 6 months after the effective date of the
amendatory act that added this subsection, the department shall
appoint a panel to review petitions to approve medical conditions
or treatments for addition to the list of debilitating medical
conditions under the administrative rules. The panel shall meet at
least twice each year and shall review and make a recommendation to
the department concerning any petitions that have been submitted
that are completed and include any documentation required by
administrative rule.
(1) A majority of the panel members shall be licensed
physicians, and the panel shall provide recommendations to the
department regarding whether the petitions should be approved or
denied.
(2) All meetings of the panel are subject to the open meetings
act, 1976 PA 267, MCL 15.261 to 15.275.
(l) The Michigan medical marihuana fund is created within the
state treasury. All fees collected under this act shall be
deposited into the fund. The state treasurer may receive money or
other assets from any source for deposit into the fund. The state
treasurer shall direct the investment of the fund. The state
treasurer shall credit to the fund interest and earnings from fund
investments. Money in the fund at the close of the fiscal year
shall remain in the fund and shall not lapse to the general fund.
The department of licensing and regulatory affairs shall be the
administrator of the fund for auditing purposes. The department of
licensing and regulatory affairs shall expend money from the fund,
upon appropriation, for the operation and oversight of the Michigan
medical marihuana program and for the creation and maintenance of
the statewide database required under section 14 of the medical
marihuana provisioning center regulation act.
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 does 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 at any of the following locations:
(A)
in In a school bus.
;
(B)
on On the grounds of any preschool or primary or secondary
school. ;
or
(C)
in In any correctional facility.
(3) Smoke marihuana at any of the following locations:
(A)
on On any form of public transportation. ;
or
(B)
in 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 any of
the following:
(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 is punishable by a fine of
$500.00,
which shall be is 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 or
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.
(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 are not be subject to any of the
following
for the patient's medical use of marihuana:
(1)
disciplinary Disciplinary action by a business or
occupational
or professional licensing board or bureau. ; or
(2)
forfeiture Forfeiture of any interest in or right to
property.
Enacting section 1. This amendatory act takes effect July 1,
2015.
Enacting section 2. This amendatory act clarifies ambiguities
in the law in accordance with the original intent of the people, as
expressed in section 2(b) of the Michigan medical marihuana act,
2008 IL 1, MCL 333.26422:
"(b) Data from the Federal Bureau of Investigation Uniform
Crime Reports and the Compendium of Federal Justice Statistics show
that approximately 99 out of every 100 marihuana arrests in the
United States are made under state law, rather than under federal
law. Consequently, changing state law will have the practical
effect of protecting from arrest the vast majority of seriously ill
people who have a medical need to use marihuana.". [Emphasis
added.]
This amendatory act is curative and applies retroactively as
to the following: clarifying the quantities and forms of marihuana
for which a person is protected from arrest, precluding an
interpretation of "weight" as aggregate weight, and excluding an
added inactive substrate component of a preparation in determining
the amount of marihuana, medical marihuana, or usable marihuana
that constitutes an offense.