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DESCRIPTION: Allows for the acquisition, possession, cultivation,
distribution, transportation, administration, and use of marijuana for
medical purposes. (S.B. NO. 862 S.D. 1)
A BILL FOR AN ACT RELATING TO MEDICAL USE OF MARIJUANA. BE IT ENACTED
BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. The legislature finds that modern medical
2 research has discovered a beneficial use for marijuana in
3 alleviating certain serious illnesses. Medical usage of
4 marijuana has been permitted in California, Arizona, Oregon,
5 Washington, and Alaska.
6 The legislature further finds that allowing the medical use
7 of marijuana could promote Hawaii as being an international
8 center for medical treatment and research.
9 The legislature further finds that although federal law
10 prohibits marijuana use, states are not required to enforce
11 federal law and the State is not precluded from passing its own
12 laws.
13 The purpose of this Act is to ensure that seriously ill
14 people are not penalized for the use of marijuana for strictly
15 medical purposes when the patient's treating physician provides a
16 professional opinion that marijuana is medically beneficial to
17 the patient.
18 SECTION 2. Chapter 329, Hawaii Revised Statutes is amended
19 by adding a new part to be appropriately designated and to read
Page 2 S.B. NO. 862 S.D. 1
1 as follows:
2 "PART .
3 MEDICAL USE OF MARIJUANA
4 §329-A Definitions. As used in this part:
5 "Adequate supply" means an amount of marijuana that is not
6 more than is necessary to assure, throughout the projected course
7 of treatment, the uninterrupted availability for purposes of
8 alleviating the symptoms or effects of a qualifying patient's
9 debilitating medical condition.
10 "Debilitating medical condition" means:
11 (1) Cancer, glaucoma, positive status for human
12 immunodeficiency virus, acquired immune deficiency
13 syndrome, or the treatment of these conditions;
14 (2) A chronic or debilitating disease or medical condition
15 or its treatment that produces one or more of the
16 following: cachexia or wasting syndrome; severe pain;
17 severe nausea; seizures, including those characteristic
18 of epilepsy; or severe and persistent muscle spasms,
19 including those characteristic of multiple sclerosis;
20 or
21 (3) Any other medical condition approved by the department
22 of health pursuant to administrative rules in response
23 to a request from a physician or qualifying patient.
Page 3 S.B. NO. 862 S.D. 1
1 "Marijuana" shall have the same meaning as provided in
2 section 329-1.
3 "Medical use" means the acquisition, possession,
4 cultivation, use, distribution, or transportation of marijuana or
5 paraphernalia relating to the administration of marijuana to
6 alleviate the symptoms or effects of a qualifying patient's
7 debilitating medical condition.
8 "Parent" means the custodial mother or father, the legal
9 guardian, or any other person having legal custody of a
10 qualifying patient under the age of eighteen years.
11 "Physician" means a person who is licensed under
12 chapter 453.
13 "Primary caregiver" means a person, other than the
14 qualifying patient and the qualifying patient's physician, who is
15 eighteen years of age or older and has significant responsibility
16 for managing the well-being of the qualifying patient.
17 "Qualifying patient" means a person who has been diagnosed
18 by a physician as having a debilitating medical condition.
19 "Written documentation" means a statement signed by a
20 qualifying patient's physician or medical records of the
21 qualifying patient stating that in the physician's professional
22 opinion, the potential benefits of the medical use of marijuana
23 would likely outweigh the health risks for the qualifying
Page 4 S.B. NO. 862 S.D. 1
1 patient.
2 §329-B Medical use of marijuana; permitted when.(a)
3 Notwithstanding any law to the contrary, the medical use of
4 marijuana by a qualifying patient, or the furnishing of marijuana
5 for medical use by the qualifying patient's primary caregiver, as
6 appropriate, shall be permitted, if that qualifying patient has
7 been diagnosed by a physician as having a debilitating medical
8 condition; provided that the physician shall have written
9 documentation pertaining to that qualifying patient; and further
10 provided that the amount of marijuana does not exceed an adequate
11 supply.
12 (b) Subsection (a) shall not apply to a qualifying patient
13 under the age of eighteen years, unless:
14 (1) The qualifying patient's physician has explained the
15 potential risks and benefits or the medical use of
16 marijuana to the qualifying patient and to at least one
17 of the qualifying patient's parents; and
18 (2) At least one of the qualifying patient's parents
19 consents in writing to: the qualified patient's
20 medical use of marijuana; serve as the qualifying
21 patient's primary caregiver; and control the
22 acquisition of the marijuana and the dosage and
23 frequency of the medical use of marijuana by the
Page 5 S.B. NO. 862 S.D. 1
1 qualifying patient.
2 (c) This section shall not apply to:
3 (1) Medical use of marijuana that endangers the health or
4 well-being of another person;
5 (2) Medical use of marijuana in a school bus or public bus;
6 on any school grounds; or at any public park, public
7 beach, public recreation center, recreation or youth
8 center, or other place open to the public; and
9 (3) Use of marijuana by a qualifying patient, parent, or
10 primary caregiver for purposes other than medical use.
11 §329-C Insurance not applicable. This part shall not be
12 construed to require insurance coverage for the medical use of
13 marijuana.
14 §329-D Absence of written documentation. The failure of a
15 physician to provide written documentation under section 329-B
16 shall not:
17 (1) Constitute a cause of action against the physician for
18 professional malpractice;
19 (2) Affect the physician's licensure under chapter 453; or
20 (3) Subject the physician to criminal proceedings."
21 SECTION 3. Chapter 453, Hawaii Revised Statutes, is amended
22 by adding a new section to be appropriately designated and to
23 read as follows:
Page S.B. NO. 862 S.D. 1
1 "§453- Medical use of marijuana. No physician shall be
2 subject to arrest or prosecution, penalized in any manner, or
3 denied any right or privilege, for providing a professional
4 opinion or written documentation to a person whom that physician
5 has diagnosed as having a debilitating medical condition, as
6 defined in section 329-A, about the potential risks and benefits
7 of the medical use of marijuana, as defined in section 329-A;
8 provided that the professional opinion or written documentation
9 is based upon the physician's assessment of the person's medical
10 history and current medical condition made in the course of a
11 bona fide physician-patient relationship."
12 SECTION 4. Chapter 712, Hawaii Revised Statutes, is amended
13 by adding a new section to part IV, to be appropriately
14 designated and to read as follows:
15 "§712- Marijuana. (1) No provision of this part that
16 applies to marijuana shall be construed to be violated due to the
17 medical use of marijuana in accordance with part of
18 chapter 329.
19 (2) Marijuana subject to part of chapter 329 and any
20 property used in connection with the medical use of marijuana
21 shall not be subject to search or seizure. Marijuana,
22 paraphernalia, or other property seized from a qualifying patient
23 or primary caregiver in connection with claimed medical use shall
Page 7 S.B. NO. 862 S.D. 1
1 be returned immediately upon the determination by a court that
2 the qualifying patient or primary caregiver is entitled to the
3 protections of part of chapter 329, as evidenced by a
4 decision not to prosecute, dismissal of the charges, or an
5 acquittal.
6 (3) A person shall not be subject to arrest for being in
7 the presence or vicinity of the medical use of marijuana.
8 (4) It shall be an affirmative defense for prosecution
9 involving marijuana under this part that there was compliance
10 with part of chapter 329; provided that the qualifying
11 patient's physician, in the context of a bona fide
12 physician-patient relationship, has stated that in the
13 physician's professional opinion, the potential benefits of the
14 medical use of marijuana would likely outweigh the health risks
15 for the particular qualifying patient.
16 (5) Misrepresentation of any fact or circumstance relating
17 to subsection (1), (2), or (3) to avoid prosecution under this
18 part shall be subject to imprisonment of up to thirty days and a
19 fine of $500, in addition to any other penalties that may apply
20 for the non-medical use of marijuana.
21 (6) In any criminal proceeding under this part in which a
22 physician is called to testify, testimony by the physician shall
23 be in private in chambers. Upon request of the physician who
Page 8 S.B. NO. 862 S.D. 1
1 testifies, if the testimony is subsequently used in a public
2 proceeding, whether criminal or civil, the name of the physician
3 shall not be disclosed.
4 (7) For the purposes of this section:
5 "Marijuana" shall have the same meaning as provided in
6 section 712-1240.
7 "Medical use" shall have the same meaning as provided in
8 section 329-A.
9 "Physician" shall have the same meaning as provided in
10 section 329-A."
11 SECTION 5. Section 453-8, Hawaii Revised Statutes, is
12 amended by amending subsection (a) to read as follows:
13 "(a) In addition to any other actions authorized by law,
14 any license to practice medicine and surgery may be revoked,
15 limited, or suspended by the board at any time in a proceeding
16 before the board, or may be denied, for any cause authorized by
17 law, including but not limited to the following:
18 (1) Procuring, or aiding or abetting in procuring, a
19 criminal abortion;
20 (2) Employing any person to solicit patients for one's
21 self;
22 (3) Engaging in false, fraudulent, or deceptive
23 advertising, including, but not limited to:
Page 9 S.B. NO. 862 S.D. 1
1 (A) Making excessive claims of expertise in one or
2 more medical specialty fields;
3 (B) Assuring a permanent cure for an incurable
4 disease; or
5 (C) Making any untruthful and improbable statement in
6 advertising one's medical or surgical practice or
7 business;
8 (4) Being habituated to the excessive use of drugs or
9 alcohol; or being addicted to, dependent on, or a
10 habitual user of a narcotic, barbiturate, amphetamine,
11 hallucinogen, or other drug having similar effects;
12 (5) Practicing medicine while the ability to practice is
13 impaired by alcohol, drugs, physical disability, or
14 mental instability;
15 (6) Procuring a license through fraud, misrepresentation,
16 or deceit or knowingly permitting an unlicensed person
17 to perform activities requiring a license;
18 (7) Professional misconduct, hazardous negligence causing
19 bodily injury to another, or manifest incapacity in the
20 practice of medicine or surgery;
21 (8) Incompetence or multiple instances of negligence,
22 including, but not limited to, the consistent use of
23 medical service which is inappropriate or unnecessary;
Page 10 S.B. NO. 862 S.D. 1
1 (9) Conduct or practice contrary to recognized standards of
2 ethics of the medical profession as adopted by the
3 Hawaii Medical Association or the American Medical
4 Association;
5 (10) Violation of the conditions or limitations upon which a
6 limited or temporary license is issued;
7 (11) Revocation, suspension, or other disciplinary action by
8 another state or federal agency of a license,
9 certificate, or medical privilege for reasons as
10 provided in this section;
11 (12) Conviction, whether by nolo contendere or otherwise, of
12 a penal offense substantially related to the
13 qualifications, functions, or duties of a physician,
14 notwithstanding any statutory provision to the
15 contrary;
16 (13) Violation of chapter 329, the uniform controlled
17 substances act, or any rule adopted thereunder[;]
18 except as provided in section 329-B;
19 (14) Failure to report to the board, in writing, any
20 disciplinary decision issued against the licensee or
21 the applicant in another jurisdiction within thirty
22 days after the disciplinary decision is issued; or
23 (15) Submitting to or filing with the board any notice,
Page 11 S.B. NO. 862 S.D. 1
1 statement, or other document required under this
2 chapter, which is false or untrue or contains any
3 material misstatement or omission of fact."
4 SECTION 6. This Act shall not affect rights and duties that
5 matured, penalties that were incurred, and proceedings that were
6 begun, before its effective date.
7 SECTION 7. If any provision of this Act, or the application
8 thereof to any person or circumstance is held invalid, the
9 invalidity does not affect other provisions or applications of
10 the Act which can be given effect without the invalid provision
11 or application, and to this end the provisions of this Act are
12 severable.
13 SECTION 8. In codifying the new sections added by this Act,
14 the revisor shall substitute the appropriate section numbers for
15 the letters used in designating the new sections of this Act.
16 SECTION 9. Statutory material to be repealed is bracketed.
17 New statutory material is underscored.
18 SECTION 10. This Act shall take effect upon its approval.