SF0099 - Supervised medical use of marihuana.
|
2001 |
State of Wyoming |
01LSO-0435 |
SENATE FILE NO. SF0099
Supervised medical use of marihuana.
Sponsored by: Senator(s) Goodenough
A BILL
for
1 AN ACT relating to
public health; allowing supervised
2
medical use of marihuana for seriously ill people;
3 excepting
medical use of marihuana from prosecution;
4
providing for a medical doctor's supervision; reclassifying
5
marihuana as a schedule II controlled substance; providing
6
criminal penalties for fraudulent representations; and
7
providing for an effective date.
8
9 Be It Enacted by the Legislature of the State of Wyoming:
10
11 Section 1. Legislative findings.
12
13 (a) Modern
medical research has discovered a
14 beneficial use for marihuana in treating or
alleviating the
15 pain or other symptoms associated with
certain debilitating
16 medical conditions, as found by the national
academy of
17 sciences' institute of medicine in March,
1999.
Page 1
1
2 (b) The
legislature admits that it would prefer for
3 the
federal government to permit marihuana to be prescribed
4 by
physicians and to be dispensed at pharmacies. However,
5 the
legislature finds that the federal government has shown
6 no
indication that it will change federal policy with
7
regard to medical marihuana, as evidenced by the federal
8
government's reluctance to allow even FDA-approved clinical
9
trials to move forward.
10
11 (c) According
to the United States sentencing
12 commission and the federal bureau of
investigation, more
13 than ninety-nine (99) out of every hundred
(100) marihuana
14 arrests are made under state law rather than
under federal
15 law.
Consequently, the legislature finds that changing
16 state law will have the practical effect of
protecting from
17 arrest the vast majority of seriously ill
people who have a
18 medical need to use marihuana.
19
20 (d) Although
federal law expressly prohibits the use
21 of marihuana, the legislature recognizes
that the laws of
22 Alaska, California, Colorado, Hawaii, Maine,
Nevada, Oregon
23 and Washington permit the medical use and
cultivation of
24 marihuana. The legislature intends to join
in this effort
Page 2
1 for
the health and welfare of its citizens. However, the
2 legislature
does not intend to make marihuana legally
3
available for other than medical purposes.
4
5 (e) The
legislature finds that the state is not
6
required to enforce federal law or prosecute individuals
7 for
engaging in activities prohibited by federal law.
8
Therefore, compliance with this act does not put the state
9 in
violation of federal law.
10
11 (f) The
legislature finds that state law should make
12 a distinction between the medical and
nonmedical use of
13 marihuana. Hence, the purpose of this act is
to ensure that
14 physicians are not penalized for discussing
marihuana as a
15 treatment option with their patients and
seriously ill
16 people who engage in the medical use of
marihuana upon
17 their physicians' advice are not arrested
and incarcerated
18 for using marihuana for medical purposes.
19
20 Section 2. W.S. 35-7-1060 and 35-7-1601
through
21 35-7-1606 are created to read:
22
23 35-7-1060. Exception to provisions.
24
Page 3
1 The
provisions and penalties of this act shall not apply to
2
the medical use of marihuana when used in accordance with
3
the provisions of W.S. 35-7-1601 through 35-7-1606.
4
5 ARTICLE 16
6 SUPERVISED MEDICAL USE OF MARIHUANA
7
8 35-7-1601. Definitions.
9
10 (a) As used in this act:
11
12 (i) "Adequate
supply" means an amount of
13 marihuana collectively possessed between the
qualifying
14 patient and the qualifying patient's primary
caregivers
15 that is not more than is reasonably necessary
to ensure the
16 uninterrupted availability of marihuana for
the purpose of
17 alleviating the symptoms or effects of a
qualifying
18 patient's debilitating medical condition;
19
20 (ii) "Debilitating medical condition" means:
21
22 (A) Cancer,
glaucoma, positive status for
23 human immunodeficiency virus, acquired
immune deficiency
24 syndrome or the treatment of these
conditions;
Page 4
1
2 (B) A chronic
or debilitating disease or
3
medical condition or its treatment that produces one (1) or
4
more of the following: cachexia
or wasting syndrome;
5
severe pain; severe nausea; seizures, including those
6
characteristic of epilepsy; or severe and persistent muscle
7
spasms, including those characteristic of multiple
8
sclerosis or Crohn's disease; or
9
10 (C) Any other
medical condition or its
11 treatment approved by the department, as
provided for in
12 W.S. 35-7-1602.
13
14 (iii) "Department"
means state department of
15 health;
16
17 (iv) "Marihuana"
shall have the same meaning as
18 "marihuana" as provided in W.S. 35-7-1002(a)(xiv);
19
20 (v) "Medical
use" means the acquisition,
21 possession, cultivation, use, transfer,
transportation of
22 marihuana or paraphernalia relating to the
administration
23 of marihuana to alleviate the symptoms or
effects of a
24 qualifying patient's debilitating medical
condition. For
Page 5
1 the
purposes of "medical use," the term "transfer" is
2
limited to the transfer of marihuana and paraphernalia
3
between primary caregivers and qualifying patients;
4
5 (vi) "Physician"
means a person who is licensed
6
pursuant to W.S. 33-26-301 et. seq;
7
8 (vii) "Primary
caregiver" means a person who is
9 at
least eighteen (18) years old and who has agreed to
10 undertake responsibility for managing the
well-being of a
11 patient with respect to the medical use of
marihuana;
12
13 (viii) "Qualifying
patient" means a person who
14 has been diagnosed by a physician as having
a debilitating
15 medical condition;
16
17 (ix) "Written
certification" means the
18 qualifying patient's medical records or a
statement signed
19 by a physician, stating that in the
physician's
20 professional opinion, after having completed
a full
21 assessment of the qualifying patient's
medical history and
22 current medical condition made in the course
of a bona fide
23 physician-patient relationship, the
qualifying patient has
24 a debilitating medical condition and the
potential benefits
Page 6
1 of
the medical use of marihuana would likely outweigh the
2
health risks for the qualifying patient;
3
4 (x) "This
act" means W.S. 36-7-1601 through
5 35-7-1606.
6
7 35-7-1602. Addition of debilitating
medical
8 conditions.
9
10 Not later than June 30, 2001, the
department shall
11 promulgate regulations governing the
manner in which it
12 will consider petitions submitted by
physicians or patients
13 to add debilitating medical
conditions to those included in
14 this act. In considering the
petitions, the department
15 shall include public notice of, and
an opportunity to
16 comment in a public hearing upon,
the petitions. The
17 department shall, after hearing,
approve or deny the
18 petitions within one hundred eighty
(180) days of
19 submission. The approval or denial
of the petition shall be
20 considered a final agency action,
subject to judicial
21 review.
22
23 35-7-1603. Exemption from criminal and
civil
24 penalties for the medical use of marihuana.
Page 7
1
2 (a) A
qualifying patient who has in his possession
3
written certification shall not be subject to arrest,
4
prosecution or penalty in any manner for the medical use of
5
marihuana, provided the quantity of marihuana does not
6
exceed an adequate supply.
7
8 (b) Subsection
(a) of this section shall not apply to
9 a
qualifying patient under the age of eighteen (18) years,
10 unless:
11
12 (i) The
qualifying patient's physician has
13 explained the potential risks and benefits
of the medical
14 use of marihuana to the qualifying patient
and to a parent,
15 guardian or person having legal custody of
the qualifying
16 patient; and
17
18 (ii) A parent,
guardian or person having legal
19 custody consents in writing to:
20
21 (A) Allow the
qualifying patient's medical
22 use of marihuana;
23
Page 8
1 (B) Serve as
the qualifying patient's
2
primary caregiver; and
3
4 (C) Control the
acquisition of the
5 marihuana,
the dosage and the frequency of the medical use
6 of
marihuana by the qualifying patient.
7
8 (c) When the
acquisition, possession, cultivation,
9
transportation or administration of marihuana by a
10 qualifying patient is not practicable, the
legal
11 protections established by this act for a
qualifying
12 patient shall extend to the qualifying
patient's primary
13 caregivers, provided that the primary
caregivers' actions
14 are necessary for the qualifying patient's
medical use of
15 marihuana.
16
17 (d) A physician
shall not be subject to arrest or
18 prosecution, penalized in any manner or
denied any right or
19 privilege for providing written
certification for the
20 medical use of marihuana to qualifying patients.
21
22 (e) Any
property interest that is possessed, owned or
23 used in connection with the medical use of
marihuana or
24 acts incidental to the use shall not be
harmed, neglected,
Page 9
1 injured
or destroyed while in the possession of state or
2
local law enforcement officials, provided that law
3
enforcement agencies seizing live plants as evidence shall
4 not
be responsible for the care and maintenance of
5
marihuana plants. Any property interest shall not be
6
forfeited under any provision of state or local law
7
providing for the forfeiture of property other than as a
8
sentence imposed after conviction of a criminal offense or
9
entry of a plea of guilty to a criminal offense.
10 Marihuana, paraphernalia or other property
seized from a
11 qualifying patient or primary caregiver in
connection with
12 the claimed medical use of marihuana shall
be returned
13 immediately upon the determination by a
court or prosecutor
14 that the qualifying patient or primary
caregiver is
15 entitled to the protections of this act, as
may be
16 evidenced by a decision not to prosecute,
the dismissal of
17 charges or an acquittal.
18
19 (f) The
provisions and penalties of the Wyoming
20 Controlled Substance Act of 1971 shall not
apply to the
21 medical use of marihuana when used in
accordance with the
22 provisions of this act.
23
Page 10
1 (g) No person
shall be subject to arrest or
2
prosecution for "constructive possession,"
"conspiracy" or
3 any
other offense for simply being in the presence or
4
vicinity of the medical use of marihuana as permitted under
5
this act.
6
7 35-7-1604. Prohibitions, restrictions
and limitations
8 regarding the medical use
of marihuana.
9
10 (a) The
authorization for the medical use of
11 marihuana in this act shall not apply to:
12
13 (i) The medical
use of marihuana that endangers
14 the health or well-being of another person,
such as driving
15 or operating heavy machinery while under the
influence of
16 marihuana;
17
18 (ii) The smoking of marihuana:
19
20 (A) In a school
bus, public bus or other
21 public vehicle;
22
23 (B) In the workplace of one's employment;
24
Page 11
1 (C) On any school grounds;
2
3 (D) In any correctional facility; or
4
5 (E) At any
public park, public beach,
6
public recreation center or youth center.
7
8 (iii) The use of
marihuana by a qualifying
9
patient, primary caregiver or any other person for purposes
10 other than medical use permitted by this
act.
11
12 (b) Insurance
coverage shall not be required for the
13 medical use of marihuana.
14
15 (c) Notwithstanding
any law to the contrary,
16 fraudulent representation to a law
enforcement official of
17 any fact or circumstance relating to the
medical use of
18 marihuana to avoid arrest or prosecution
shall be a
19 misdemeanor and subject to a fine of not
more than five
20 hundred dollars ($500.00). This penalty
shall be in
21 addition to any other penalties that may
apply for the
22 nonmedical use of marihuana.
23
Page 12
1 35-7-1605. Establishing a defense in
court for
2 patients and primary
caregivers.
3
4 (a) A patient
or primary caregiver may assert the
5
medical use of marihuana as a defense to any prosecution
6
involving marihuana, and this defense shall be presumed
7
valid where the evidence shows that:
8
9 (i) The
patient's medical records indicate, or a
10 physician has stated that, in the
physician's professional
11 opinion, after having completed a full
assessment of the
12 patient's medical history and current
medical condition
13 made in the course of a bona fide
physician-patient
14 relationship, the potential benefits of the
medical use of
15 marihuana would likely outweigh the health
risks for the
16 patient;
17
18 (ii) The patient
and the patient's primary
19 caregiver were collectively in possession of
a quantity of
20 marihuana that does not exceed an adequate
supply.
21
22 35-7-1606. Severability of this act.
23
Page 13
1 If
any provision of this act or the application thereof to
2
any person or circumstance is held invalid, the invalidity
3
does not affect other provisions or applications of the act
4
which can be given effect without the invalid provision or
5
application, and to this end the provisions of this act are
6
severable.
7
8 Section 3. W.S.
35-7-1002(a)(xxviii) and 37-7-1016(g)
9
by creating a new paragraph (iii) are amended to read:
10
11 35-7-1002. Definitions.
12
13 (a) As used in this act:
14
15 (xxviii) "This
act" means W.S. 35-7-1001 through
16 35-7-1059 35-7-1060.
17
18 35-7-1016. Substances included in Schedule II.
19
20 (g) Hallucinogenic substances:
21
22 (iii) Marihuana.
23
Page 14
1 Section 4. W.S. 35-7-1014(d)(xiii) is repealed.
2
3 Section 5. This act is effective
immediately upon
4
completion of all acts necessary for a bill to become law
5 as
provided by Article 4, Section 8 of the Wyoming
6
Constitution.
7
8 (END)
Page 15