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DESCRIPTION: Allows for the acquisition, possession, cultivation,
distribution, transportation, administration, and use of marijuana for
medical purposes. (HB1157 HD1)
A BILL FOR AN ACT RELATING TO THE 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 treating or alleviating the pain or other symptoms associated
4 with certain serious illnesses. Medical use of marijuana has
5 been permitted in California, Arizona, Oregon, Washington, and
6 Alaska. The legislature also finds that allowing the medical use
7 of marijuana could promote Hawaii as being an international
8 center for medical treatment and research. Finally, although
9 federal law makes this a somewhat gray area, the legislature
10 finds that a number of other states are taking the initiative in
11 this area and there is no reason why Hawaii should not join in
12 this initiative for the health and welfare of its citizens. The
13 legislature further finds, however, that this Act and the policy
14 underlying it does not in any way diminish the State's strong
15 public policy and laws against illegal drug use.
16 The purpose of this Act is to ensure that seriously ill
17 patients are not penalized for the use of marijuana for strictly
18 medical purposes when the patient's treating physician provides a
19 professional opinion certifying that marijuana is medically
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1 necessary for treatment of or to alleviate or manage pain or
2 other symptoms associated with a debilitating medical condition
3 of the patient.
4 SECTION 2. Chapter 329, Hawaii Revised Statutes, is amended
5 by adding a new part to be appropriately designated and to read
6 as follows:
7 "PART . MEDICAL USE OF MARIJUANA
8 §329-A Definitions. As used in this part:
9 "Adequate supply" means an amount of marijuana that is not
10 more than is necessary to ensure, throughout the projected course
11 of treatment, the uninterrupted availability of marijuana for
12 purposes of treating or alleviating the pain or other symptoms
13 associated with a qualifying patient's debilitating medical
14 condition or the treatment of such a condition.
15 "Debilitating medical condition" means:
16 (1) Cancer, glaucoma, positive status for human
17 immunodeficiency virus, acquired immune deficiency
18 syndrome, or the treatment of these conditions;
19 (2) A chronic or debilitating disease or medical condition
20 or its treatment that produces one or more of the
21 following:
22 (A) Cachexia or wasting syndrome;
23 (B) Severe pain;
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1 (C) Severe nausea;
2 (D) Seizures, including those characteristic of
3 epilepsy; or
4 (E) Severe and persistent muscle spasms, including
5 those characteristic of multiple sclerosis; or
6 (3) Any other medical condition approved by the department
7 of health pursuant to administrative rules in response
8 to a request from a physician or qualifying patient.
9 "Marijuana" shall have the same meaning as provided in
10 section 329-1.
11 "Medical use" means the acquisition, possession,
12 cultivation, use, distribution, or transportation of marijuana or
13 paraphernalia relating to the administration of marijuana to
14 alleviate or manage the pain or other symptoms associated with a
15 qualifying patient's debilitating medical condition or the
16 treatment of such a condition.
17 "Parent, guardian, or person having legal custody" means the
18 custodial mother or father, the legal guardian, or any other
19 person having legal custody of the particular qualifying patient
20 under the age of eighteen years.
21 "Physician" means a person who is licensed under chapter 453
22 or 460.
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1 "Primary caregiver" means a parent, guardian, or person
2 having legal custody who has agreed to undertake significant
3 responsibility for managing the well-being of the qualifying
4 patient with respect to the medical use of marijuana.
5 "Qualifying patient" means a person who has been diagnosed
6 by a physician as having a debilitating medical condition.
7 "Written certification" means a statement signed and
8 maintained by a qualifying patient's physician certifying that,
9 in the physician's professional opinion:
10 (1) Marijuana is medically necessary for the treatment of
11 or to alleviate pain or other symptoms associated with
12 the patient's debilitating medical condition or
13 treatment of the condition; and
14 (2) There exists no better legal alternative for this
15 purpose.
16 §329-B Medical use of marijuana; conditions of use.(a)
17 Notwithstanding any law to the contrary, the medical use of
18 marijuana by a qualifying patient, or the furnishing of marijuana
19 for medical use by the qualifying patient's primary caregiver, as
20 appropriate, shall be permitted if:
21 (1) The qualifying patient has been diagnosed by a treating
22 physician as having a debilitating medical condition;
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1 (2) The physician has certified in writing that, in the
2 physician's professional opinion:
3 (A) Marijuana is medically necessary for the treatment
4 of or to alleviate pain or other symptoms
5 associated with the qualifying patient's
6 debilitating medical condition or treatment of the
7 condition; and
8 (B) There exists no better legal alternative for this
9 purpose.
10 (3) 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 of the medical use of
16 marijuana to the qualifying patient and to a parent,
17 guardian, or person having legal custody; and
18 (2) A parent, guardian, or person having legal custody
19 consents in writing to:
20 (A) Allow the qualified patient's medical use of
21 marijuana;
22 (B) Serve as the qualifying patient's primary
23 caregiver; and
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1 (C) Control the acquisition of the marijuana and the
2 dosage and frequency of the medical use of
3 marijuana by the qualifying patient.
4 (c) No person shall be subject to arrest or prosecution for
5 being in the presence or vicinity of the medical use of marijuana
6 as permitted under this section.
7 (d) The authorization for medical use of marijuana in this
8 section shall not apply to:
9 (1) Medical use of marijuana that endangers the health or
10 well-being of the qualifying patient or another person;
11 (2) Medical use of marijuana:
12 (A) In a school bus or public bus;
13 (B) On any school grounds; or
14 (C) At any public park, public beach, public
15 recreation center, recreation or youth center, or
16 other place open to the public; and
17 (3) Use of marijuana by a qualifying patient, primary
18 caregiver, or parent, guardian, or person having legal
19 custody for purposes other than medical use as
20 certified to by the patient's physician.
21 §329-C Insurance coverage not required. This part shall
22 not be construed to require insurance coverage for the medical
23 use of marijuana.
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1 §329-D Protections afforded treating physician.(a) No
2 physician shall be subject to arrest or prosecution, penalized in
3 any manner, or denied any right or privilege for providing
4 written certification for medical use of marijuana for a
5 qualifying patient; provided that:
6 (1) The physician has diagnosed the patient as having a
7 debilitating medical condition, as defined in section
8 329-A;
9 (2) The physician has explained the potential risks and
10 benefits of the medical use of marijuana, as required
11 under section 329-B(b)(1), if applicable; and
12 (3) The certification is based upon the physician's
13 professional opinion after having completed a full
14 assessment of the patient's medical history and current
15 medical condition made in the course of a bona fide
16 physician-patient relationship.
17 (b) In any criminal proceeding involving rights or defenses
18 created by this part in which a physician is called to testify,
19 upon the request of the physician:
20 (1) Testimony by the physician shall be given in camera;
21 and
22 (2) If the testimony is subsequently used in a public
23 proceeding, whether criminal or civil, the name of the
24 physician shall not be disclosed.
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1 §329-E Protection of marijuana and other property.
2 Marijuana and any property used in connection with the medical
3 use of marijuana shall not be subject to search or seizure.
4 Marijuana, paraphernalia, or other property seized from a
5 qualifying patient or primary caregiver in connection with
6 claimed medical use under this part shall be returned immediately
7 upon the determination by a court that the qualifying patient or
8 primary caregiver is entitled to the protections of this part, as
9 evidenced by a decision not to prosecute, dismissal of charges,
10 or an acquittal.
11 §329-F Affirmative defense. A qualifying patient or
12 primary caregiver may assert medical use of marijuana as an
13 affirmative defense to any prosecution involving marijuana under
14 this chapter or chapter 712; provided that:
15 (1) There was strict compliance with this part;
16 (2) The qualifying patient's physician, in the context of a
17 bona fide physician-patient relationship, has certified
18 in writing that, in the physician's professional
19 opinion:
20 (A) Marijuana is medically necessary for the treatment
21 of or to alleviate pain or other symptoms
22 associated with the qualifying patient's
23 debilitating medical condition or treatment of the
24 condition; and
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1 (B) There exists no better legal alternative for this
2 purpose;
3 and
4 (3) The quantity of marijuana involved did not exceed an
5 adequate supply.
6 §329-G Fraudulent misrepresentation; penalty. Fraudulent
7 misrepresentation to a law enforcement officer of any fact or
8 circumstance relating to medical use of marijuana to avoid arrest
9 or prosecution under this chapter or chapter 712 is a petty
10 misdemeanor; provided the maximum fine imposed shall be $500.
11 This penalty shall be in addition to any other penalties that may
12 apply for the non-medical use of marijuana. Nothing in this
13 section is intended to preclude the conviction of any person
14 under section 710-1060 or for any other offense under part V of
15 chapter 710."
16 SECTION 3. Chapter 712, Hawaii Revised Statutes, is amended
17 by adding a new section to part IV, to be appropriately
18 designated and to read as follows:
19 "§712- Medical use of marijuana. No provision of this
20 part that applies to marijuana shall be construed to be violated
21 due to the medical use of marijuana in strict accordance with
22 part of chapter 329."
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1 SECTION 4. Section 453-8, Hawaii Revised Statutes, is
2 amended by amending subsection (a) to read as follows:
3 "(a) In addition to any other actions authorized by law,
4 any license to practice medicine and surgery may be revoked,
5 limited, or suspended by the board at any time in a proceeding
6 before the board, or may be denied, for any cause authorized by
7 law, including but not limited to the following:
8 (1) Procuring, or aiding or abetting in procuring, a
9 criminal abortion;
10 (2) Employing any person to solicit patients for one's
11 self;
12 (3) Engaging in false, fraudulent, or deceptive
13 advertising, including[,] but not limited to:
14 (A) Making excessive claims of expertise in one or
15 more medical specialty fields;
16 (B) Assuring a permanent cure for an incurable
17 disease; or
18 (C) Making any untruthful and improbable statement in
19 advertising one's medical or surgical practice or
20 business;
21 (4) Being habituated to the excessive use of drugs or
22 alcohol[;], or being addicted to, dependent on, or a
23 habitual user of a narcotic, barbiturate, amphetamine,
24 hallucinogen, or other drug having similar effects;
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1 (5) Practicing medicine while the ability to practice is
2 impaired by alcohol, drugs, physical disability, or
3 mental instability;
4 (6) Procuring a license through fraud, misrepresentation,
5 or deceit or knowingly permitting an unlicensed person
6 to perform activities requiring a license;
7 (7) Professional misconduct, hazardous negligence causing
8 bodily injury to another, or manifest incapacity in the
9 practice of medicine or surgery;
10 (8) Incompetence or multiple instances of negligence,
11 including[,] but not limited to[,] the consistent use
12 of medical service which is inappropriate or
13 unnecessary;
14 (9) Conduct or practice contrary to recognized standards of
15 ethics of the medical profession as adopted by the
16 Hawaii Medical Association or the American Medical
17 Association;
18 (10) Violation of the conditions or limitations upon which a
19 limited or temporary license is issued;
20 (11) Revocation, suspension, or other disciplinary action by
21 another state or federal agency of a license,
22 certificate, or medical privilege for reasons as
23 provided in this section;
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1 (12) Conviction, whether by nolo contendere or otherwise, of
2 a penal offense substantially related to the
3 qualifications, functions, or duties of a physician,
4 notwithstanding any statutory provision to the
5 contrary;
6 (13) Violation of chapter 329, the uniform controlled
7 substances act, or any rule adopted thereunder[;],
8 except as provided under part of chapter 329;
9 (14) Failure to report to the board, in writing, any
10 disciplinary decision issued against the licensee or
11 the applicant in another jurisdiction within thirty
12 days after the disciplinary decision is issued; or
13 (15) Submitting to or filing with the board any notice,
14 statement, or other document required under this
15 chapter[, which] that is false or untrue or contains
16 any material misstatement or omission of fact."
17 SECTION 5. (a) The legislature finds that the State is not
18 required to enforce federal law or prosecute individuals for
19 engaging in activities prohibited by federal law. Therefore,
20 compliance with this Act does not put the State in violation of
21 federal law.
22 (b) The State respectfully requests the United States
23 Congress and the President to enact appropriate legislation to
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1 permit marijuana to be prescribed by physicians and to allow the
2 states to develop regulations to ensure a safe, affordable, and
3 controlled supply of marijuana for medical use.
4 (c) Notice of the passage of this Act shall be transmitted
5 within sixty days of enactment to:
6 (1) The President of the United States;
7 (2) The Vice President of the United States;
8 (3) The Speaker of the United States House of
9 Representatives;
10 (4) The President of the United States Senate; and
11 (5) The members of Hawaii's Congressional delegation.
12 SECTION 6. If any provision of this Act, or the application
13 thereof to any person or circumstance is held invalid, the
14 invalidity does not affect other provisions or applications of
15 the Act which can be given effect without the invalid provision
16 or application, and to this end the provisions of this Act are
17 severable.
18 SECTION 7. In codifying the new sections added by section 2
19 of this Act, the revisor of statutes shall substitute appropriate
20 section numbers for the letters used in the new sections
21 designated in this Act.
22 SECTION 8. Statutory material to be repealed is bracketed.
23 New statutory material is underscored.
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1 SECTION 9. This Act shall take effect upon its approval.