Medical marijuana is currently legal in thirteen states. Named after
Jacki Rickert, a medical marijuana advocate who 12 years ago led a
210-mile trek of wheelchair-bound patients from Mondovi to Madison in
order to seek legal access to the medicine they said made their lives
bearable, this comprehensive legislation would allow patients with
debilitating medical conditions access to marijuana if authorized by
their doctor or if they have a valid registry card from DHFS.
Similar to 2007 AB 550, this legislation is based on Michigan law that
passed last November on a state-wide ballot of 63% to 35%.
This is an issue where the public has been ahead of the policy makers.
Polling over the past few years has shown consistent support for
medical marijuana, most recently escalating to over 75% in Wisconsin.
In the seven states where medical marijuana was added as a ballot
initiative, it passed in each state by a wide margin.
It is time that we address medical marijuana as an issue of providing
comprehensive health care to all people. The patient and their doctor
should have as many options as possible available when treating a
patient’s medical condition.
Key Provisions of the bill include:
· Provides a medical necessity defense to marijuana-related
prosecutions and property seizure actions. A person may evoke this
defense if they are undergoing a debilitating medical condition or
treatment and have written consent from their physician or obtained a
valid registry ID card from DHFS. Conditions include cancer, glaucoma,
AIDS or HIV, diseases that cause wasting away, severe pain or nausea,
seizures or severe and persistent muscle spasms, and any other medical
condition or treatment in rules promulgated by DHFS.
· Creates a maximum authorized amount of marijuana a patient may have,
thus establishing clear limits for both patients and law enforcement
officials.
· Prohibits the arrest of a physician who provides a written
certification in good faith. Also, the primary caregiver is protected
from the same exceptions under the law.
· The defense may not be applicable if the patient performs an illegal
act while using marijuana. This includes driving or operating a motor
vehicle, operating heavy machinery, smoking near a school, park or
youth center, at a person’s employment, etc.
· Requires DHFS to establish a registry for medical users of marijuana
and an ID card to a qualifying patient.
· Requires DHFS to license and regulate nonprofit corporations that
distribute marijuana.
· This bill only changes state law regarding marijuana. Federal law on
marijuana does not change. However, 99% of marijuana arrests are made
by state and local officials, not federal officials.
If you would like to sign on to this bill, please call Rep. Pocan’s
office at 266-8570 or Sen. Erpenbach's office at 266-6670 by 5:00 PM
Thursday, October 22, 2009.
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Analysis by the Legislative Reference Bureau>
Current prohibitions and penalties
Current law prohibits the manufacture, distribution, and delivery of
marijuana (also known as tetrahydrocannabinols) and the possession of
marijuana with intent to manufacture, distribute, or deliver it.
Penalties for violating these prohibitions depend on the amount of
marijuana involved. If the crime involves 200 grams or less or four or
fewer marijuana plants, the person is guilty of a felony and may be
fined up to $10,000, sentenced to a term of imprisonment of up to three
years and six months, or both. If the crime involves more than 200
grams but not more than 1,000 grams, or more than four plants but not
more than 20 plants, the person is guilty of a felony and may be fined
up to $10,000, sentenced to a term of imprisonment of up to six years,
or both. If the crime involves more than 1,000 grams but not more than
2,500 grams, or more than 20 plants but not more than 50 plants, the
person is guilty of a felony and may be fined up to $25,000, sentenced
to a term of imprisonment of up to ten years, or both. If the crime
involves more than 2,500 grams but not more than 10,000 grams, or more
than 50 plants but not more than 200 plants, the person is guilty of a
felony and may be fined up to $25,000, sentenced to a term of
imprisonment of up to 12 years and 6 months, or both. If the crime
involves more than 10,000 grams or more than 200 plants, the person is
guilty of a felony and may be fined up to $50,000, sentenced to a term
of imprisonment of up to 15 years, or both.
Current law also prohibits a person from possessing or attempting to
possess marijuana. A person who violates this prohibition and who has
no prior drug convictions is guilty of a misdemeanor and may be fined
not more than $1,000, sentenced to the county jail for up to six
months, or both. For a second or subsequent offense, a person is guilty
of a Class I felony.
Current law also contains certain prohibitions regarding drug
paraphernalia, which includes equipment, products, and materials used
to produce, distribute, and use controlled substances, including
marijuana. Under current law, a person who uses drug paraphernalia or
who possesses it with the primary intent to produce, distribute, or use
a controlled substance, other than methamphetamine, unlawfully is
guilty of a misdemeanor and may be fined not more than $500, imprisoned
for not more than 30 days, or both. A person who delivers drug
paraphernalia, possesses it with intent to deliver it, or manufactures
it with intent to deliver it, knowing that it will be primarily used to
produce, distribute, or use a controlled substance, other than
methamphetamine, unlawfully may be fined not more than $1,000,
imprisoned for not more than 90 days, or both.
Medical necessity defense and immunity from arrest and prosecution
This bill establishes a medical necessity defense to
marijuana>−>related prosecutions and forfeiture actions. A person
having or undergoing a debilitating medical condition or treatment
(qualifying patient) may invoke this defense. A debilitating medical
condition or treatment means any of the following: 1) cancer, glaucoma,
AIDS, a positive HIV test, Crohn’s disease, a Hepatitis C virus
infection, Alzheimer’s disease, Amytrophic Lateral Sclerosis, nail
patella syndrome, Ehlers>−>Danlos Syndrome, post>−>traumatic stress
disorder, or the treatment of these conditions; 2) a chronic or
debilitating disease or medical condition, or the treatment of such a
disease or condition, that causes wasting away, severe pain, severe
nausea, seizures, or severe and persistent muscle spasms; or 3) any
other medical condition or treatment for a medical condition designated
as a debilitating medical condition or treatment in rules promulgated
by the Department of Health Services (DHS).
A qualifying patient may invoke this defense if he or she acquires,
possesses, cultivates, transports, or uses marijuana to alleviate the
symptoms or effects of his or her debilitating medical condition or
treatment, but only if no more than the maximum author>ized amount of
marijuana (that is, 12 marijuana plants and three ounces —
approximately 85 grams — of marijuana leaves or flowers) is involved.
If a person has obtained a valid registry identification card from DHS
or a valid out>−>of>−>state registry identification card (see Registry
and distribution centers for medical users of marijuana below) or has a
written certification from his or her physician documenting that the
person has or is undergoing a debilitating medical condition or
treatment and that the potential benefits to the person of using
marijuana outweigh the health risks involved, the person is presumed to
have this defense if no more than the maximum authorized amount of
marijuana is involved.
The bill also prohibits the arrest or prosecution of a qualifying
patient who acquires, possesses, cultivates, transports, or uses
marijuana to alleviate the symptoms or effects of his or her
debilitating medical condition or treatment if the person possesses a
valid registry identification card, a valid out>−>of>−>state registry
identification card, or a written certification. This prohibition,
however, applies only if no more than the maximum authorized amount of
marijuana is involved. In addition, the bill prohibits the arrest or
prosecution of or the imposition of any penalty on a physician who
provides a written certification to a person in good faith.
The defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill do not apply if the person possesses
or attempts to possess marijuana and if: 1) while under the influence
of marijuana, the person drives or operates a motor vehicle; 2) while
under the influence of marijuana, the person operates heavy machinery
or engages in any other conduct that endangers the health or
well>−>being of another person; or 3) the person smokes marijuana on a
bus, at his or her workplace, on school premises, in an adult or
juvenile correctional facility or jail, at a public park, beach, or
recreation center, or at a youth center. In addition, if the putative
qualifying patient is under 18 years of age, the defense provided under
the bill and the prohibition on arrest and prosecution contained in the
bill apply only if the person’s parent, guardian, or legal custodian
agrees to serve as a primary caregiver for the person. The bill defines
a primary caregiver as a person who is at least 18 years old and who
has agreed to be responsible for managing a qualifying patient’s
medical use of marijuana.
The defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill apply also to a primary caregiver for
any qualifying patient, if the primary caregiver acquires, possesses,
cultivates, transfers, or transports marijuana to facilitate the
qualifying patient’s medical use of it. The defense and the prohibition
apply to the primary caregiver only if it is not practicable for the
qualifying patient to acquire, possess, cultivate, or transport
marijuana independently or if the qualifying patient is under 18. The
defense and the prohibition apply also to offenses involving drug
paraphernalia if the qualifying patient uses the drug paraphernalia for
the medical use of marijuana.
Registry and distribution centers for medical users of marijuana
The bill requires DHS to establish a registry for medical users of
marijuana. Under the bill, a person claiming to be a qualifying patient
may apply for a registry identification card by submitting to DHS a
signed application, accompanied by a written certification and a
registration fee of not more than $150. DHS must verify the information
and issue the person a registry identification card.
A qualifying patient and one of his or her primary caregivers may also jointly apply
for a registry identification card for the primary caregiver. DHS may
not disclose that it has issued to a person a registry identification
card, or information from an application for one, except to a law
enforcement agency for the purpose of verifying that a person possesses
a >valid registry identification card. A registry identification card
is valid for one year, unless revoked sooner by DHS based on a change
of circumstances, and may be renewed. This bill also requires DHS to
promulgate a rule listing any state, district, commonwealth, territory,
or insular possession thereof that allows the medical use of marijuana
by a visiting qualifying patient or allows a person to assist with a
visiting qualifying patient’s medical use of marijuana. Under this
bill, documents issued by these entities identifying a person as a
qualifying patient, primary caregiver, or equivalent are treated the
same as registry identification cards issued by DHS.
The bill requires DHS to license and regulate nonprofit corporations,
known as compassion centers, that distribute or deliver marijuana or
drug paraphernalia or possess or manufacture marijuana or drug
paraphernalia with the intent to deliver or distribute to facilitate
the medical use of marijuana.
This bill prohibits compassion centers
from being located less than 500 feet from a school, prohibits a
compassion center from distributing to a qualifying patient more than a
maximum amount of marijuana, and prohibits an organization from
possessing a quantity that exceeds, by an amount determined by DHS, the
total maximum amount of marijuana of all of the qualifying patients it
serves. An applicant for a license must pay an initial application fee
of $250, and a compassion center must pay an annual fee of $5,000.
Effect on federal law
This bill changes state law regarding marijuana. It does not affect
federal law, which generally prohibits persons from manufacturing,
delivering, or possessing marijuana and applies to both intrastate and
interstate violations.
Because this bill creates a new crime or revises a penalty for an
existing crime, the Joint Review Committee on Criminal Penalties may be
requested to prepare a report concerning the proposed penalty and the
costs or savings that are likely to result if the bill is enacted.
For further information see the state and local fiscal estimate, which
will be printed as an appendix to this.
