Medical research suggests that marijuana may
alleviate pain or other symptoms associated with certain debilitating medical
conditions. Federal law, however, prohibits the use of marijuana. Ninety-nine
percent of marijuana-related arrests in the country are made under state law
rather than under federal law. Changing state law would therefore provide legal
protection to the vast majority of seriously ill people who use marijuana
medically. Thirteen other states permit the use of marijuana for medical
purposes, and with this law, New Jersey would join the effort to protect
patients using marijuana to alleviate suffering from arrest, prosecution, and
other legal sanctions, as well as provide protection to their physicians,
caregivers, alternative treatment centers authorized to produce marijuana for
medical purposes, and persons who simply are in the vicinity of permitted
medical use of marijuana.
PATIENT/CAREGIVER IDENTIFICATION CARD
The law provides that DHSS shall issue registry
identification cards containing the patients photograph to qualifying patients
and their primary caregivers. The law defines “qualifying patient” or “patient”
as a person who has been diagnosed by a physician with whom the patient has a
bona fide physician-patient relationship as having a “debilitating medical condition.”
“Debilitating medical condition” is defined as: cancer, glaucoma, positive
HIV/AIDS status, or the treatment of these conditions; a chronic or
debilitating disease or medical condition or its treatment that produces
cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures,
severe and persistent muscle spasms; and other medical conditions that may
administratively be added by the department. “Primary caregiver” or “caregiver”
is defined as a person who is at least 18 years old, who has never been
convicted of a felony drug offense, has agreed to assist with a qualifying
patients medical use of marijuana and has been designated as primary caregiver
on the patients registry identification card, or in other written notification
to the department. A primary caregiver may only have one qualified patient at
any one time. A patients physician could not serve as a primary
caregiver.
DHSS shall issue registry identification cards to
qualifying patients who submit the following:
- written certification that the person is a
qualifying patient (medical records or a statement signed by a physician with
whom the patient has a bona fide physician-patient relationship, stating that
in the physicians professional opinion, after completing a full assessment of
the patients medical history and current medical condition, the patient has a
debilitating medical condition for which recognized drugs or treatments are or
would not be effective and the potential benefits of the medical use of
marijuana would likely outweigh the health risks for the patient);
- the required application or renewal fee, which
may be based on a sliding scale as determined by the commissioner;
- the patients and caregivers name, address and
date of birth; and
- the physicians name, address and telephone
number.
The law requires that DHSS verify the information
prior to issuing a registry identification card, and approve or deny an
application or renewal within 15 days of receipt and issue a registry
identification card within five days of approval. DHSS may deny an application
or renewal only if the applicant fails to provide the required information, or
if it determines that the information was falsified. Denial of an application
is considered a final agency decision, subject to review by the Appellate
Division of the Superior Court.
DHSS shall issue a registry identification card to
the primary caregiver named in a patients approved application if the caregiver
signs a statement agreeing to provide marijuana only to the patient who has
named him as primary caregiver. DHSS would be prohibited from issuing a registry
identification card to any proposed caregiver with a felony drug offense
conviction.
Under the law, it would be a disorderly persons
offense, punishable by up to 180 days in jail and a $1,000 fine, for a person
to fabricate or misrepresent a registry identification card to a law
enforcement official.
DHSS is to maintain a confidential list of the
persons to whom it has issued registry identification cards. Individual names
and other identifying information on the list are to be confidential, and not subject
to public access, but could be released to authorized DHSS employees as
necessary to perform official department duties and to authorized employees of
State or local law enforcement agencies when necessary to verify that a person
who is engaged in the suspected or alleged medical use of marijuana is lawfully
in possession of a registry identification card.
ALTERNATIVE TREATMENT CENTERS
The law provides that DHSS shall establish a
registration program authorizing alternative treatment centers to produce and
dispense marijuana for medical purposes. A person who has been convicted of
possession or sale of a controlled dangerous substance shall not be issued a
permit to operate, or be an employee of, an alternative treatment center,
unless such conviction was for a violation of federal law relating to
possession or sale of marijuana for conduct that is legal under the law. All
usable marijuana, seeds and seedlings associated with the production of
marijuana for a registered qualifying patient would be the property of the
patient and must be provided to the patient upon request. An alternative
treatment center may be reimbursed by a patient for reasonable costs associated
with the production of marijuana for that patient.
An alternative treatment center permit holder or
his employee would not be subject to arrest or prosecution, or penalized in any
manner for the acquisition, distribution, possession, cultivation, or
transportation of marijuana or paraphernalia related to marijuana on behalf of
a registered identification cardholder, provided the amount of marijuana
possessed by the center, combined with the amount possessed by the registered
patient and his primary caregiver, does not exceed six marijuana plants and one
ounce of usable marijuana per patient
LEGAL PROTECTIONS
The law provides that a patient and his caregiver
who possess a registry identification card and collectively possess no more
than six marijuana plants and one ounce of usable marijuana would receive the
following protections under this law:
- The person would not be subject to arrest,
prosecution, or penalty, or denied any right or privilege, including civil
penalty or disciplinary action by a professional licensing board, for the
medical use of marijuana.
- The person would be entitled to a rebuttable
presumption of medical use of marijuana if the patient or his caregiver
possesses a registry identification card and the permissible amount of
marijuana.
- The person could assert an affirmative defense of
medical use of marijuana, unless the person was operating a motor vehicle,
aircraft or motorboat while under the influence of marijuana, or smoking
marijuana in a school bus or other form of public transportation, on any school
grounds, in any correctional facility, or at any public park, public beach,
public recreation center or youth center.
- Possession of, or application for, a registry
identification card shall not alone constitute probable cause to search a
person or his property.
- If a patient has in his possession a registry
identification card and the permissible amount of marijuana, N.J.S.A.26:2-82
(authorizing the destruction of marijuana determined to exist by the Department
of Health and Senior Services) would not apply.
The law extends these protections to a qualified
patient who is under 18 years of age if the patient and his legal guardian are
advised by the patients physician of the risks and benefits of using marijuana
for medical purposes, and the legal guardian consents in writing to allow the
medical use of marijuana, serve as the primary caregiver, and control the
patient’s acquisition, dosage and frequency of use.
A physician who provides written certification for
the medical use of marijuana to a qualifying patient would not be subject to
arrest, prosecution, or penalty in any manner, or denied any right or
privilege, including a penalty or disciplinary action by the State Board of
Medical Examiners.
In addition, the law would protect persons from arrest and prosecution
for constructive possession, conspiracy, or any other offense if they were in
the presence or vicinity of the medical use of marijuana as permitted by the
law.
