PART IX.  MEDICAL USE OF CANNABIS

Note

  Part heading amended by L 2017, c 170, §2.

Cross References

  Medical cannabis; economic and other data; collection, see §201-13.9.

  Medical cannabis; tenant use; eviction, see §521-39.

  Medical cannabis testing and research programs, see §304A-1865.

Law Journals and Reviews

  Gonzales v. Raich:  How the Medical Marijuana Debate Invoked Commerce Clause Confusion.  28 UH L. Rev. 261 (2005).

  The "Grande Iced Nonfat Chai with a Shot of Espresso" Problem:  Dealing with Designer Drugs in the Wake of McFadden v. United States.  39 UH L. Rev. 265 (2016).

Case Notes

  District court erred in re-determining the fact of medical use in contrast to the parties' stipulation that petitioner possessed and transported medical marijuana under a valid Medical Marijuana Registry Patient Identification Certificate, thus preempting consideration of petitioner's affirmative defense; given that the State presented no evidence showing that the marijuana was for any other use other than a medical use, petitioner proved that petitioner was authorized to possess marijuana for medical purposes pursuant to this part for purposes of an affirmative defense under §712-1240.1(2).  129 H. 397, 301 P.3d 607 (2013).

     §329-121  Definitions.  As used in this part:

     "Adequate supply" means an amount of medical cannabis jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed:  ten cannabis plants, whether immature or mature, and four ounces of usable cannabis at any given time.  The four ounces of usable cannabis shall include any combination of usable cannabis and manufactured cannabis products, as provided in chapter 329D, with the cannabis in the manufactured cannabis products being calculated using information provided pursuant to section 329D-9(c).

     "Adequate supply for a qualifying out-of-state patient" means an amount of cannabis individually possessed by a qualifying out-of-state patient or jointly possessed by a qualifying out-of-state patient who is under eighteen years old and the caregiver of the qualifying out-of-state patient that is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of the qualifying out-of-state patient's debilitating medical condition; provided that an "adequate supply for a qualifying out-of-state patient" shall not exceed four ounces of usable cannabis at any given time and shall not include live plants.  The four ounces of usable cannabis shall include any combination of usable cannabis and manufactured cannabis products, as provided in chapter 329D; provided that the usable cannabis in the manufactured products shall be calculated using information provided pursuant to section 329D-9(c).

     "Advanced practice registered nurse" means an advanced practice registered nurse with prescriptive authority as described in section 457-8.6 and registered under section 329-32.

     "Cannabis" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712-1240.

     "Caregiver of a qualifying out-of-state patient" means a parent, guardian, or person having legal custody of a qualifying out-of-state patient who is under the age of eighteen years.

     "Debilitating medical condition" means:

     (1)  Cancer, glaucoma, lupus, epilepsy, multiple sclerosis, rheumatoid arthritis, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

     (2)  A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

          (A)  Cachexia or wasting syndrome;

          (B)  Severe pain;

          (C)  Severe nausea;

          (D)  Seizures, including those characteristic of epilepsy;

          (E)  Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

          (F)  Post-traumatic stress disorder; or

     (3)  Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or advanced practice registered nurse or potentially qualifying patient.

     "Medical use" means the acquisition, possession, cultivation, use, distribution, or transportation of cannabis or paraphernalia relating to the administration of cannabis to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition; provided that "medical use" does not include the cultivation or distribution of cannabis or paraphernalia by a qualifying out-of-state patient or the caregiver of a qualifying out-of-state patient.  For the purposes of "medical use", the term "distribution" is limited to the transfer of cannabis and paraphernalia.

     "Physician" means a person who is licensed to practice under chapter 453 and is licensed with authority to prescribe drugs and is registered under section 329-32.  "Physician" does not include a physician assistant as described in section 453-5.3.

     "Primary caregiver" means a person eighteen years of age or older, other than the qualifying patient and the qualifying patient's physician or advanced practice registered nurse, who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of cannabis.  In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.

     "Qualifying out-of-state patient" or "registered qualifying out-of-state patient" means a person who is registered for the medical use of cannabis in another state, a United States territory, or the District of Columbia.

     "Qualifying patient" means a person who has been diagnosed by a physician or advanced practice registered nurse as having a debilitating medical condition.

     "Usable cannabis" means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for the medical use of cannabis.  "Usable cannabis" does not include the seeds, stalks, and roots of the plant.

     "Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician or advanced practice registered nurse, stating that in the physician's or advanced practice registered nurse's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of cannabis would likely outweigh the health risks for the qualifying patient.  The department of health may require, through its rulemaking authority, that all written certifications comply with a designated form.  "Written certifications" are valid for one year from the time of signing; provided that the department of health may allow for the validity of any written certification for three years if the qualifying patient's physician or advanced practice registered nurse states that the patient's debilitating medical condition is chronic in nature. [L 2000, c 228, pt of §2; am L 2009, c 11, §43 and c 169, §7; am L 2010, c 57, §4; am L 2013, c 178, §2; am L 2015, c 241, §6; am L 2016, c 230, §7; am L 2017, c 41, §2 and c 170, §2; am L 2018, c 116, §4; am L 2023, c 108, §1]

Revision Note

  Definitions of "adequate supply", "cannabis", and "usable cannabis":  "Marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to §23G-15.

Case Notes

  Rule of lenity required the construction, under the specific facts of the case, of §§329-122 and 329-125 and this section against the government, as there was an irreconcilable inconsistency between the authorized transportation of medical marijuana under this section, and the prohibition on transport of medical marijuana through "any ... place open to the public" under [§329-122(c)(2)(E)]; thus, under §701-115(2)(b), petitioner was entitled to an acquittal because petitioner's evidence, when considered in light of any contrary prosecution evidence proved by a preponderance of the evidence the specified fact or facts with negatived penal liability.  129 H. 397, 301 P.3d 607 (2013).