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MINNESOTA COUNTY ATTORNEYS ASSOCIATION
ADDITIONAL COMMENTS ON S.F. 345 (MEDICAL MARIJUANA)
March 16, 2007 If S.F. 345 (authorizing the medical use of marijuana) were to be enacted, numerous sections of this proposal should be amended to protect the safety of Minnesota’s Citizens. If S.F. 345 is enacted in Minnesota, despite opposition from the Minnesota County Attorneys Association, the Minnesota Urban County Attorneys Association and a number of other law enforcement organizations,1 numerous sections of this overly broad proposal should be significantly revised to assure the safety and protection of Minnesota’s citizens. These include the following: (1) Under Section 5, Subd. 72 of the bill (references herein are to the bill as originally introduced), law enforcement officials and prosecutors would be suspended or terminated from employment for cooperating with their federal counterparts – putting them in an untenable position. Minnesota’s police and prosecutors have an obligation to adhere to not only the state’s laws and Constitution but federal laws and the U.S. Constitution as well. The proposed provision could subject state law enforcement officials or prosecutors to federal prosecution, among other major concerns. It is unconstitutional and should be deleted. Section 3, Subdivision 13 of the bill should be amended to require a “qualifying patient” to be 18 years of age or older. No child should be permitted to smoke marijuana if this proposal becomes law because of the significant vulnerability of children to the hazards associated with the use of a powerful narcotic of this nature. This is also consistent with the public policy under current law of prohibiting persons under the age of 18 from smoking tobacco. Additionally, no smoking of marijuana by an adult for medical purposes should be done in the presence of a child. To accomplish this, the following new subparagraph (v) should be added to the restrictions on where marijuana can be smoked in Section 6 (a) (2)4: (v) smoking of marijuana in the presence of any child under the age of 18.
In addition to the MCAA, the Minnesota Sheriff’s Association, the Minnesota Chiefs of Police Association, the National District Attorneys Association, and the U.S. Drug Enforcement Administration are all opposed to the legislation. 2 To be codified as Minn. Stat. § 152.25, subd. 7. 3 To be codified as Minn. Stat. § 152.23, subd. 1. 4 To be codified as Minn. Stat. § 152.26 (a)(2).
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(2)
(3)
Under Section 2, Subd. 25, the “allowable amount” of marijuana for medical use is far too large. The bill allows for 12 plants and possession of 2.5 ounces of useable marijuana. One plant can produce 1-2 pounds of marijuana. One ounce of useable marijuana can produce up to 28 joints; 1 pound would produce 448 joints. A marijuana plant can produce 4 yields per year. Four yields would produce approximately 1,800 joints per year. That equates to almost 5 joints per day, which would seem to be more than enough to address the needs of a patient using marijuana for medical purposes. Excess amounts create the potential for abuse and drug-related thefts or robberies and other violent crime associated with illegal drug trafficking. Consequently, the bill should be modified to not allow a qualifying patient, primary caregiver or registered organization to possess more than one marijuana plant for growing purposes per qualifying patient. Under Section 2, Subd. 46, the definition of “debilitating medical condition” is too broad. It includes any condition that produces “chronic pain,” “severe nausea,” or “severe and persistent muscle spasms” – descriptions that could easily include chronic back problems or migraine headaches. The existence of these type of conditions needs to be connected to one of the described illnesses or diseases identified in the statute through a medical diagnosis. The definition of “debilitating medical condition” should, therefore, be as follows: “Debilitating Medical Condition” means a person suffering severe and chronic pain, severe nausea, multiple seizures, severe and persistent muscle spasms, or cachexia or wasting syndrome who has been medically diagnosed as suffering from cancer, glaucoma, acquired immune deficiency syndrome (HIV), hepatitis C, epilepsy, multiple sclerosis, Crohn’s disease, Alzheimer’s disease, or Tourette’s syndrome. For purposes of this definition, severe and chronic pain is pain that has not responded to ordinary medical or surgical measures for more than six months.
(4)
(5)
Under Section 2, Subd. 77, the definition of “practitioner” (the individual who diagnoses the “debilitating medical condition”) is too broad. Under the bill, “practitioner” includes (as amended) “a licensed doctor of medicine, a licensed doctor of osteopathy licensed to practice medicine, a physician assistant or an advance practice registered nurse.” It should be revised to only include licensed medical doctors. Under Section 3, Subdivisions 1 and 28 of the bill (Protections for Medical Use of Marijuana) could be read to prohibit arrest or prosecution or disciplinary action against a “qualifying patient” or “primary caregiver” even if the “qualifying patient” or “primary caregiver” is unlawfully manufacturing or distributing marijuana to another person. The following language should be added to each of these subdivisions: Nothing in this section shall prohibit the investigation, arrest or prosecution of a qualifying patient or primary caregiver related to an alleged violation of this statute or any other law.
(6)
5 6
To be codified as Minn. Stat. § 152.22, subd. 2. To be codified as Minn. Stat. § 152.22, subd. 4. 7 To be codified as Minn. Stat. § 152.22, subd. 7. 8 To be codified as Minn. Stat. § 152.23, subds. 1 and 2.
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(7)
Section 3, Subd. 39 would prohibit landlords from refusing to lease to individuals who are manufacturing, distributing, possessing and using marijuana for medical purposes under this law. Marijuana growing operations, even if lawful, present significant risk of drug robberies which would endanger the qualifying patient and others living or working in and around the premises. In an apartment complex or other multi-unit dwellings, dangers associated with second-hand smoke also become an issue. Motels and other landlords or businesses currently have a legal right to prohibit smoking of tobacco in their premises and should have the right to restrict marijuana smoking as well. This section should be revised to allow this to occur. Under Section 3, Subd. 410 of the bill, there is no reason for the “presumption” of nonviolation created and it should be deleted. The law itself, if enacted, states what is lawful and what is not. The “presumption” created under this section could be used improperly against legitimate law enforcement investigations and prosecutions for violations of this statute or other controlled substance crimes. Section 3, Subd. 611 creates a prohibition for arrest, prosecution or professional sanctions for “practitioners” who authorize a “qualifying patient” to use marijuana for medical purposes. This language is too broad and the following language should be added: Nothing in this section shall prohibit the arrest, prosecution or disciplinary action of a practitioner who knowingly certifies a qualifying patient who does not meet the definition of debilitating medical condition and nothing shall prevent a practitioner from being professionally sanctioned for failure to properly evaluate a patient’s medical condition or otherwise violate the standard of care for evaluating medical conditions. A practitioner who knowingly certifies a person as a qualifying patient who does not meet the definition of debilitating medical condition is guilty of a felony offense punishable by up to five years in prison or up to a $10,000 fine.
(8)
(9)
(10)
Section 3, Subd. 712 prohibits forfeiture of any property used under this statute for the medical use of marijuana, including the marijuana itself, and requires a law enforcement agency that seizes marijuana and does not return it to a “registered qualifying patient or a registered primary caregiver” to pay the fair market value of the marijuana. This section could subject a Minnesota law enforcement agency to criminal penalties under federal law for the unlawful distribution of a controlled substance if the agency returns the marijuana to the possession of a “qualifying patient” or “primary caregiver.” Also, law enforcement agencies should not be required to pay damages associated with lawful investigations. Under current law, a qualified immunity exists for damages caused during the execution of a lawful search warrant, even if the warrant is mistakenly executed at the wrong residence. This law should not impose damages in reference to paying for the costs of marijuana seized through a lawfully executed search warrant or other lawful process. Consequently, this section should be deleted.
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To be codified as Minn. Stat. § 152.23, subd. 3. To be codified as Minn. Stat. § 152.23, subd. 4. 11 To be codified as Minn. Stat. § 152.23, subd. 6. 12 To be codified as Minn. Stat. § 152.23, subd. 7.
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(11)
Under Section 3, Subd. 8 of the bill13, a safe harbor from arrest or prosecution would exist for anyone “in the presence or vicinity of the medical use of marijuana,” not just the “qualifying patient.” This would hamper (if not outright prohibit) the ability to investigate and prosecute someone manufacturing, distributing, or possessing marijuana illegally, or any other offense, while in proximity to someone possessing the registry ID card. This section should be deleted in its entirety. Section 3, Subd. 914 dealing with “Reciprocity” should be deleted in its entirety. No one should be able to lawfully possess or use marijuana in Minnesota who does not meet the standards of Minnesota’s law. If not, a Minnesota resident denied the medical use of marijuana in Minnesota could simply go to another state which allows much broader eligibility criteria, obtain a “registration card or equivalent” in the other less restrictive state and use it here. Minnesota’s law should only apply to persons meeting the definition of a “qualifying patient” under Minnesota law. Under Section 5 of the bill15, qualification to manufacture, distribute, or possess marijuana under this statute would be subject to little administrative or judicial review. Under the proposed statute, the only ground for denying the issuance of the registry ID card is an applicant’s providing insufficient information or a false certification from a practitioner. This would permit little, if any, scrutiny of the need for marijuana use. The state Commissioner of Health should be permitted to seek additional information to verify the practitioner’s certification and the courts should be afforded meaningful review. Section 516 of the bill should add a subdivision creating a criminal penalty for knowingly submitting false records or documentation used for certification by the Commissioner of Health. The penalty should be a felony offense punishable by up to 5 years in prison and up to a $10,000 fine (the equivalent penalty for a 5th Degree Controlled Substance crime). Under Section 5, Subd. 417, law enforcement would be barred from considering an individual’s application or receipt of a registry card for the use of marijuana as a basis for probable cause to search – an unprecedented exception. We are not aware of any other law that restricts what a judge or law enforcement officer can consider in determining what constitutes probable cause to believe illegal activity is occurring or that evidence of a crime or other contraband exists. Not only is this restriction contrary to sound public policy, it quite likely violates the doctrine of separation of powers. It should be deleted. Under Section 5, Subd. 5(b) and (d),18 state officials would be barred from disclosing, even to law enforcement, the name of any applicant or recipient of the registry ID card. The use of marijuana would remain illegal in most cases even after passage of S.F. 345. Even if registry information is kept confidential from the public, law enforcement officials (including prosecutors) need to be aware of it; otherwise they may waste resources on investigations of marijuana use only to find out at a later date that the use was authorized under this statute. These sections should, therefore, be amended to specifically allow law
(12)
(13)
(14)
(15)
(16)
13 14
To be codified as Minn. Stat. § 152.23, subd. 8. To be codified as Minn. Stat. § 152.23, subd. 9. 15 To be codified as Minn. Stat. § 152.25, subd. 1(c). 16 To be codified as Minn. Stat. § 152.25. 17 To be codified as Minn. Stat. § 152.25, subd. 4. 18 To be codified as Minn. Stat. § 152.25, subd. 5(b), (d).
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enforcement agencies and prosecutors to have access to all identifying data concerning a “qualifying patient,” “primary caregiver” or “practitioner.” (17) Section 5, Subd. 5(d)19 relating to violations of privacy of data should be amended to be punishable by 90 days, not 180 days to be consistent with penalties for violation of the Minnesota Government Data Practices Act. Section 6, Subdivision (a)20 sets forth prohibitions of where marijuana can be smoked, but contains no penalty provision for violation of these restrictions. Consistent with current law, such a violation should be either a petty misdemeanor if the amount of marijuana in possession of the individual while violating these restrictions is less than 1½ oz., or a felony if more than this amount is in the person’s possession at the time of the violation, punishable by up to 5 years in prison and up to a $ 10,000 fine. Section 921 creates an affirmative defense to prosecution that is far too broad and is unnecessary under the law. Any “qualifying patient” or “primary caregiver” who is lawfully complying with this statute could not be prosecuted. Affirmative defenses to a crime are traditionally limited to situations where the defendant’s conduct violates a state law, and there exists a separate lawful excuse for the conduct such as intoxication, mental illness, self-defense or entrapment. Affirmative defenses are not needed for conduct which complies with state law. As drafted this “affirmative defense” would create a “medical use” defense even if the “qualifying patient” does not apply for or obtain a “registry identification card” from the Commissioner of Health. Under the bill, a user seeking to avoid prosecution need show only that a “practitioner” has opined that the potential medical benefit to the user outweighs the potential health risks and that the quantity in the user’s possession was not more than reasonably necessary to alleviate the user’s medical condition. The user need not even show that a “debilitating medical condition” is present or that he or she even applied for the registry ID card. Nor is it clear that the state is permitted to obtain an adverse medical examination; if evidence of malingering or falsified medical condition exists, some means must be provided to rebut the presumption of validity this defense creates. This in essence allows persons using marijuana for medical purposes to ignore registration procedures under the law which should not occur. The affirmative defense should be deleted. Section 11, Subd. 122 of this bill allows for an unlimited number of “qualifying patients” to be served by a “registered organization.” In other words, this statute would authorize “registered organizations” to create large scale marijuana growing, manufacturing and distribution operations. Large scale operations of this nature are more susceptible to abuse, such as robberies or thefts. There are no provisions for required unannounced inspections by law enforcement or the Commissioner of Health to investigate unlawful conduct or compliance with the statute. The size of marijuana growing operations by “registered organizations” should be limited to not more than 100 plants. The law should also mandate appropriate security measures be taken to prevent crimes such as robbery or theft, and require “registered organizations” to maintain proper insurance and be subject to civil penalties for failure to do so.
(18)
(19)
(20)
19
To be codified as Minn. Stat. § 152.25, subd. 5(d). To be codified as Minn. Stat. § 152.26(a). 21 To be codified as Minn. Stat. § 152.26. 22 To be codified as Minn. Stat. § 152.31, subd. 1.
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(21)
Section 11, Subd. 6(f) and (g)23 seemingly prohibits criminal investigations, criminal penalties and civil penalties for “registered organizations” or any employees, agents or board members thereof, even if they are noncompliant with the provisions of the statute or are committing a separate crime. The following language should be added to both Section 11, Subds. 6(f) and (g): Nothing in this section shall prohibit the investigation, arrest or prosecution, or a civil investigation and penalty, related to an alleged violation of this statute or any other law connected with the business or operation of a “registered organization”, including employees, agents or board members thereof.
(22)
Section 11, Subd. 6(b) relates to location restrictions for “registered organizations” which are insufficient. This section states that “registered organizations” are prohibited within 500 feet of the property line of a public school, private school, or structure used primarily for religious services or worship. Section 11, Subd. 6(i) prevents municipalities from using zoning regulations to restrict the location of a “registered organization.” Marijuana growing operations should not be allowed next to day care centers, restaurants, parks, recreational areas, shopping malls and other similar areas commonly used by children or the general public. Counties, cities and townships should retain the right to restrict the location of a marijuana growing operation within their boundaries to appropriate areas designated for manufacturing businesses. Section 11, Subd. 724, creates a penalty for violation of this statute which is significantly less than the penalty for any felony level controlled substance crime. The proposed penalty of only two years and a $3,000 fine is minimal in light of the potential profit that could be made through the operation of a marijuana-growing organization and sales to unauthorized persons. The penalty should be commensurate with the unlawful distribution of controlled substances, e.g., if the amount exceeds 5 or more kilograms (approximately 15 pounds), the penalty should be the same as a controlled substance crime in the 3rd Degree (20 years in prison and a $250,000 fine).
(23)
Admin/Legis/07 Medical Marijuana MCAA Additional Comments
23 24
To be codified as Minn. Stat. § 152.31, subd. 6(f) and (g). To be codified as Minn. Stat. § 152.31, subd. 7.
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