File No. 420

House of Representatives, April 10, 2007

The Committee on Judiciary reported through REP. LAWLOR of the 99th Dist., Chairperson of the Committee on the part of the House, that the substitute bill ought to pass.

AN ACT CONCERNING THE PALLIATIVE USE OF MARIJUANA.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2007) As used in sections 1 to 9, inclusive, of this act, unless the context otherwise requires:

(1) "Debilitating medical condition" means cancer, glaucoma, positive status for human immunodeficiency virus or acquired immune deficiency syndrome, Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, cachexia or wasting syndrome;

(2) "Marijuana" has the same meaning as provided in section 21a-240 of the general statutes;

(3) "Palliative use" means the acquisition and distribution, possession, cultivation, use or transportation of marijuana or paraphernalia relating to marijuana to alleviate a qualifying patient's symptoms or the effects of such symptoms, but does not include any such use of marijuana by any person other than the qualifying patient. For the purposes of this subdivision, "acquisition and distribution" means the transfer of marijuana and paraphernalia relating to marijuana from the primary caregiver to the qualifying patient;

(4) "Physician" means a person who is licensed under the provisions of chapter 370 of the general statutes, but does not include a physician assistant, as defined in section 20-12a of the general statutes;

(5) "Primary caregiver" means a person, other than the qualifying patient and the qualifying patient's physician, who is eighteen years of age or older and has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the palliative use of marijuana, provided (A) in the case of a qualifying patient lacking legal capacity, such person shall be a parent, guardian or person having legal custody of such qualifying patient, and (B) the need for such person shall be evaluated by the qualifying patient's physician and such need shall be documented in the written certification;

(6) "Qualifying patient" means a person who is eighteen years of age or older and has been diagnosed by a physician as having a debilitating medical condition;

(7) "Usable marijuana" means the dried leaves and flowers of the marijuana plant, and any mixtures or preparations thereof, that are appropriate for the palliative use of marijuana, but does not include the seeds, stalks and roots of the plant; and

(8) "Written certification" means a statement signed by the qualifying patient's physician stating that, in such physician's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the palliative use of marijuana would likely outweigh the health risks of such use to the qualifying patient.

Sec. 2. (NEW) (Effective October 1, 2007) (a) A qualifying patient shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the palliative use of marijuana if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient's physician has issued a written certification to the qualifying patient for the palliative use of marijuana after the physician has prescribed, or determined it is not in the best interest of the patient to prescribe, prescription drugs to address the symptoms or effects for which the certification is being issued;

(3) The combined amount of marijuana possessed by the qualifying patient and the primary caregiver for palliative use does not exceed four marijuana plants, each having a maximum height of four feet, and one ounce of usable marijuana; and

(4) The cultivation of such marijuana occurs in a secure indoor facility.

(b) Subsection (a) of this section does not apply to:

(1) Any palliative use of marijuana that endangers the health or well-being of another person; and

(2) The palliative use of marijuana (A) in a motor bus or a school bus, as defined respectively in section 14-1 of the general statutes, or in any moving vehicle, (B) in the workplace, (C) on any school grounds or any public or private school, dormitory, college or university property, (D) at any public beach, park, recreation center or youth center or any other place open to the public, or (E) in the presence of a person under the age of eighteen. For the purposes of this subdivision, "presence" means within the direct line of sight of the palliative use of marijuana or exposure to second-hand marijuana smoke, or both.

(c) A qualifying patient shall have not more than one primary caregiver at any time. A primary caregiver may not be responsible for the care of more than one qualifying patient at any time. A primary caregiver who is registered in accordance with subsection (a) of section 3 of this act shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the acquisition, distribution, possession, cultivation or transportation of marijuana or paraphernalia related to marijuana on behalf of a qualifying patient, provided the amount of any marijuana so acquired, distributed, possessed, cultivated or transported, together with the combined amount of marijuana possessed by the qualifying patient and the primary caregiver, shall not exceed four marijuana plants, each having a maximum height of four feet, and one ounce of usable marijuana. For the purposes of this subsection, "distribution" or "distributed" means the transfer of marijuana and paraphernalia related to marijuana from the primary caregiver to the qualifying patient.

(d) Any written certification for the palliative use of marijuana issued by a physician under subdivision (2) of subsection (a) of this section shall be valid for a period not to exceed one year from the date such written certification is signed by the physician. Not later than ten days after the expiration of such period, or at any time before the expiration of such period should the qualifying patient no longer wish to possess marijuana for palliative use, the qualifying patient or the primary caregiver shall destroy all marijuana plants and usable marijuana possessed by the qualifying patient and the primary caregiver for palliative use.

Sec. 3. (NEW) (Effective October 1, 2007) (a) Each qualifying patient who is issued a written certification for the palliative use of marijuana under subdivision (2) of subsection (a) of section 2 of this act, and the primary caregiver of such qualifying patient, shall register with the Department of Consumer Protection not later than five business days after the issuance of such written certification. Such registration shall be effective until the expiration of the written certification issued by the physician. The qualifying patient and the primary caregiver shall provide sufficient identifying information, as determined by the department, to establish the personal identity of the qualifying patient and the primary caregiver. The qualifying patient or the primary caregiver shall report any change in such information to the department not later than five business days after such change. The department shall issue a registration certificate to the qualifying patient and to the primary caregiver and may charge a reasonable fee, not to exceed twenty-five dollars, for a registration under this subsection. Any registration fees collected by the department under this subsection shall be paid to the State Treasurer and credited to the account established pursuant to section 10 of this act.

(b) Upon the request of a law enforcement agency, the Department of Consumer Protection shall verify whether a qualifying patient or a primary caregiver has registered with the department in accordance with subsection (a) of this section and may provide reasonable access to registry information obtained under this section for law enforcement purposes. Except as provided in this subsection, information obtained under this section shall be confidential and shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200 of the general statutes.

Sec. 4. (NEW) (Effective October 1, 2007) (a) The Commissioner of Consumer Protection may adopt regulations, in accordance with chapter 54 of the general statutes, to establish (1) a standard form for written certifications for the palliative use of marijuana issued by physicians under subdivision (2) of subsection (a) of section 2 of this act, and (2) procedures for registrations under section 3 of this act.

(b) The Commissioner of Consumer Protection shall adopt regulations, in accordance with chapter 54 of the general statutes, to establish a reasonable fee to be collected from each qualifying patient to whom a written certification for the palliative use of marijuana is issued under subdivision (2) of subsection (a) of section 2 of this act, for the purpose of offsetting the direct and indirect costs of administering the provisions of sections 1 to 9, inclusive, of this act. The commissioner shall collect such fee at the time the qualifying patient registers with the Department of Consumer Protection under subsection (a) of section 3 of this act. Such fee shall be in addition to any registration fee that may be charged under said subsection. The fees required to be collected by the commissioner from qualifying patients under this subsection shall be paid to the State Treasurer and credited to the account established pursuant to section 10 of this act.

Sec. 5. (NEW) (Effective October 1, 2007) Nothing in sections 1 to 9, inclusive, of this act shall be construed to require health insurance coverage for the palliative use of marijuana.

Sec. 6. (NEW) (Effective October 1, 2007) (a) A qualifying patient or a primary caregiver may assert the palliative use of marijuana as an affirmative defense to any prosecution involving marijuana, or paraphernalia relating to marijuana, under chapter 420b of the general statutes or any other provision of the general statutes, provided such qualifying patient or such primary caregiver has strictly complied with the requirements of sections 1 to 9, inclusive, of this act.

(b) No person shall be subject to arrest or prosecution solely for being in the presence or vicinity of the palliative use of marijuana as permitted under sections 1 to 9, inclusive, of this act.

Sec. 7. (NEW) (Effective October 1, 2007) A physician shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by the Connecticut Medical Examining Board or other professional licensing board, for providing a written certification for the palliative use of marijuana under subdivision (2) of subsection (a) of section 2 of this act if:

(1) The physician has diagnosed the qualifying patient as having a debilitating medical condition;

(2) The physician has explained the potential risks and benefits of the palliative use of marijuana to the qualifying patient and, if the qualifying patient lacks legal capacity, to a parent, guardian or person having legal custody of the qualifying patient; and

(3) The written certification issued by the physician is based upon the physician's professional opinion after having completed a full assessment of the qualifying patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship.

Sec. 8. (NEW) (Effective October 1, 2007) Any marijuana, paraphernalia relating to marijuana, or other property seized by law enforcement officials from a qualifying patient or a primary caregiver in connection with a claimed palliative use of marijuana under sections 1 to 9, inclusive, of this act shall be returned to the qualifying patient or the primary caregiver immediately upon the determination by a court that the qualifying patient or the primary caregiver is entitled to the palliative use of marijuana under sections 1 to 9, inclusive, of this act, as evidenced by a decision not to prosecute, a dismissal of charges or an acquittal. Law enforcement officials seizing live marijuana plants as evidence shall not be responsible for the care and maintenance of such plants. This section does not apply to any qualifying patient or primary caregiver who fails to comply with the requirements for the palliative use of marijuana under sections 1 to 9, inclusive, of this act.

Sec. 9. (NEW) (Effective October 1, 2007) (a) Any person who makes a fraudulent representation to a law enforcement official of any fact or circumstance relating to the palliative use of marijuana in order to avoid arrest or prosecution under chapter 420b of the general statutes or any other provision of the general statutes shall be guilty of a class C misdemeanor.

(b) Any person who makes a fraudulent representation to a law enforcement official of any fact or circumstance relating to the issuance, contents or validity of a written certification for the palliative use of marijuana, or a document purporting to be such written certification, shall be guilty of a class A misdemeanor.

Sec. 10. (NEW) (Effective July 1, 2007) There is established a palliative marijuana administration account which shall be a separate, nonlapsing account within the General Fund. The account shall contain any fees collected pursuant to subsection (a) of section 3 of this act, the fees collected pursuant to subsection (b) of section 4 of this act, and any other moneys required by law to be deposited in the account, and shall be held in trust separate and apart from all other moneys, funds and accounts. Any balance remaining in the account at the end of any fiscal year shall be carried forward in the account for the fiscal year next succeeding. Investment earnings credited to the account shall become part of the account. Amounts in the account shall be expended only pursuant to appropriation by the General Assembly for the purpose of providing funds to the Department of Consumer Protection for administering the provisions of sections 1 to 9, inclusive, of this act.

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either chamber thereof for any purpose:

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact: None

Explanation

This bill would result in a cost to the Department of Consumer Protection (DCP) to hire 2 additional Drug Control Agents and a Secretary. Detail appears in the table below:

The two Drug Control Agents would be required since DCP's Division of Drug Control would be training other state agencies, the Statewide Narcotics Task Force, municipal police departments, and the federal Drug Enforcement Agency (DEA), in addition to performing review in the field and enforcement. A clerical position would be required since this bill, if enacted, would require a new registration process for physicians and patients and a potentially significant amount of correspondence is anticipated.

The bill makes it a crime to lie to a law enforcement official about acquiring, possessing, cultivating, using, distributing, or transporting marijuana for palliative use in order to avoid arrest. The bill also makes it a crime to lie to a law enforcement officer about the issuance, contents, or validity of a (1) written certificate for the palliative use of marijuana or (2) document purporting to be a written certification.

To the extent that these new crimes increase the likelihood that offenders would be prosecuted or receive harsher penalties, a potential revenue gain from criminal fines and potential cost for incarceration and/or probation supervision in the community exist. It is anticipated that relatively few fines would be imposed on an annual basis, and, consequently, any revenue gain under the bill is expected to be minimal. On average, it costs the state approximately $2,500 annually to supervise an offender on probation in the community as compared to $41,600 to incarcerate an offender.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation. Any revenue gain to DCP would be subject to the number of physicians and patients that register with the agency, which is unknown at this time.

The potential revenue from criminal fines indicated above would remain constant into the out years since fine amounts are set by statute. The annualized cost associated with probation supervision and incarceration would continue into the future subject to inflation.



OLR Bill Analysis

sHB 6715

AN ACT CONCERNING THE PALLIATIVE USE OF MARIJUANA.

SUMMARY:

This bill allows a physician to certify an adult patient's use of marijuana after determining that the patient has a debilitating condition and could potentially benefit from the palliative use of marijuana. It establishes a procedure for certifying patients.

It allows people suffering from these conditions and their primary caregivers to possess a quantity of marijuana that the bill sets to treat the conditions.

The bill requires the patients and their primary caregivers to register with the Department of Consumer Protection (DCP) and authorizes the department to impose a $25 registration fee. The fees must be deposited in a separate, nonlapsing Palliative Marijuana Administration Account the bill establishes.

The bill prohibits physicians, qualifying patients, and their caregivers from being arrested, prosecuted, or otherwise punished for certifying, using, or possessing palliative marijuana.

The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a patient or primary caregiver who complies with its provisions.

EFFECTIVE DATE: October 1, 2007, except for the provision establishing the Palliative Marijuana Administration Account, which is effective July 1, 2007.

USE OF MARIJUANA FOR PALLIATIVE PURPOSES

The bill allows adult patients to use marijuana for the treatment of cancer, glaucoma, HIV, AIDS, Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, cachexia, or wasting syndrome. The bill allows people with these debilitating conditions to possess marijuana, up to the amount permitted for palliative use under the bill.

The bill allows a patient or his primary caregiver to possess the usable amount. The caregiver must be at least age 18 and someone other than the patient's doctor who assists the patient in his palliative use of marijuana. If the patient lacks legal capacity, the caregiver must be his parent, guardian, or legal custodian. The qualifying patient's physician must determine the patient's need for a primary caregiver and document the need in a certification of palliative use. The bill limits patients to one caregiver at a time and caregivers to only one patient.

CERTIFICATION OF MARIJUANA USE

Under the bill, a physician may certify a patient's use of marijuana only after determining that the patient is over 18, has a debilitating condition (i.e., the patient is a qualifying patient), and the potential benefits of the palliative use of marijuana would likely outweigh its health risks. The bill makes the certification valid for one year from the date it is signed. It requires the patient or the primary caregiver to destroy all marijuana plants and usable marijuana (i.e., dried marijuana leaves and flowers or preparation or mixture of flowers and leaves, minus the seeds, stalks, and roots) that the patient or caregiver possesses for palliative use (1) within 10 days after the certification expires or (2) at any time before if the patient no longer wishes to possess marijuana for palliative use.

The bill permits DCP to establish in regulations a form physicians must use to certify a patient's palliative use of marijuana. “Palliative use” means the acquisition and distribution, possession, growth, use, or transportation of marijuana or marijuana paraphernalia to treat the qualifying patient's symptoms or their effects. “Acquisition and distribution” means the transfer of marijuana and marijuana paraphernalia from the primary caregiver to the qualifying patient.

The bill does not require health insurers to cover the palliative use of marijuana.

REGISTRATION

The bill requires certified patients and their primary caregivers to register with DCP within five business days after the certificate is issued. They must give the department information that sufficiently and personally identifies them and report any change in the information within five business days after it occurs.

The bill requires DCP to issue the patient and the primary caregiver a registration certificate that is valid for the same period as the written certification from the physician, up to one year. DCP may charge reasonable registration fee, up to $25. It must turn over any registration fees it collects to the state treasurer for deposit in a Palliative Marijuana Administration Account (see below).

The bill makes registration information confidential and not subject to disclosure under the Freedom of Information Act. But DCP can verify for any law enforcement agency that asks whether a patient or primary caregiver is registered and provide the agency with reasonable access to registry information for law enforcement purposes.

The bill permits DCP to establish registration procedures in regulations. It requires the department to establish in regulations a reasonable fee that helps it offset direct and indirect costs associated with administering the palliative use of marijuana. Patients must pay this fee, plus any registration fee, when they register. The fees must be paid to the state treasurer and credited to the Palliative Marijuana Administration Account.

PALLIATIVE MARIJUANA ADMINISTRATION ACCOUNT

The bill establishes a separate, nonlapsing Palliative Marijuana Administration Account in the General Fund. The account consists of the fees DCP collects for palliative marijuana registration and administration, investment earnings, and any other moneys the law requires to be deposited in it. The legislature can appropriate money in the account only for palliative marijuana administration. Any money remaining in the account at the end of a fiscal year must be carried forward to the next year.

PUNISHMENT FOR MARIJUANA CERTIFICATION, USE, AND POSSESSION

Physician

The bill prohibits any physician from being arrested, prosecuted, or otherwise punished, including being denied any right or privilege, or being disciplined by the Connecticut Medical Examining Board or any other professional licensing board, for writing a certification for marijuana if he:

1. diagnosed a qualifying patient with a debilitating condition;

2. explained the risks and benefits of using marijuana for palliative purposes to any such patient or the parent, guardian, or legal custodian of any such patient who lacks legal capacity; and

3. based his written certification on his professional opinion after fully assessing the patient's medical history and current medical condition in the course of a physician-patient relationship.

Qualifying Patients

The bill prohibits qualified patients from being arrested, prosecuted, denied any right or privilege, or otherwise punished for using marijuana if:

1. they are diagnosed with a debilitating condition;

2. their physician has issued a written certification for their palliative use of marijuana after prescribing, or determining it is against their best interest to prescribe, prescription drugs to address the symptoms or effects the marijuana is supposed to treat;

3. the combined amount possessed by the patient and his primary caregiver does not exceed four marijuana plants, each having a maximum height of four feet, and one ounce of usable marijuana; and

4. the marijuana is cultivated in a secure indoor facility.

The protection against punishment does not apply if a patient uses marijuana:

1. in a way that endangers another person's health or well-being;

2. on a motor or school bus; in any moving vehicle; at work; on school grounds or college or university property; in a public or private school or dormitory; or at a public park, beach, recreation or youth center, or any other public place; or

3. within the direct line of sight of anyone under age 18 or in any way that exposes that person to second-hand marijuana smoke, or both.

Primary Caregiver

The bill prohibits registered primary caregivers from being arrested, prosecuted, denied any right or privilege, or otherwise punished for acquiring, distributing, possessing, growing, or transporting a small amount of marijuana or marijuana paraphernalia for a qualifying patient. The amount of marijuana cannot exceed four plants, each having a maximum height of four feet, and one ounce of usable marijuana.

The protection against punishment for distribution applies only when the drug or paraphernalia is transferred from the caregiver to the patient.

PALLIATIVE USE OF MARIJUANA AND CRIMINAL PROCEDURE

The bill permits patients and primary caregivers who comply with its requirements to assert that fact as an affirmative defense to (i.e., a way to avoid) any state prosecution involving marijuana or marijuana paraphernalia. The bill prohibits anyone from being arrested or prosecuted solely for being present or in the vicinity as marijuana or marijuana paraphernalia is acquired, possessed, cultivated, used, distributed, or transported for palliative use.

The bill requires law enforcement agencies to return marijuana, marijuana paraphernalia, or other property seized from a patient or primary caregiver who complies with its provisions immediately after a court determines that they were entitled to have it. Under the bill, entitlement is evidenced by a prosecutor's decision to dismiss the charges or not to prosecute, or the patient or caregiver's acquittal.

The law absolves law enforcement officials of any responsibility for the care and maintenance of live marijuana plants seized as evidence.

The bill makes anyone who lies to a law enforcement officer about acquiring, possessing, cultivating, using, distributing, or transporting marijuana for palliative use in order to avoid arrest or prosecution for a drug-related offense guilty of a class C misdemeanor, punishable by up to three months' imprisonment, a $500 fine, or both. It makes anyone who lies to the officer about the issuance, contents, or validity of a (1) written certification for the palliative use of marijuana or (2) document purporting to be a written certification guilty of a class A misdemeanor, punishable by up to one year in prison, a $2,000 fine, or both.

BACKGROUND

Marijuana is a Controlled Substance

Federal law classifies marijuana as a Schedule I controlled substance. With one exception, the law prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense Schedule I drugs. Licensed practitioners, including pharmacies, can use Schedule I substances in government-approved research projects. The penalty for violations varies depending on the amount of drugs involved (21 USCA §§ 812, 823, and 841 (a)(1)).

COMMITTEE ACTION

Judiciary Committee

Joint Favorable Substitute