SB 409-FN – VERSION ADOPTED BY BOTH BODIES

03/28/12 1416s

03/28/12 1494s

25Apr2012… 1751h

16May2012… 2143h

06/06/12 2441CofC

06/06/12 2510EBA

2012 SESSION

12-2994

04/10

SENATE BILL 409-FN

AN ACT relative to the use of marijuana for medicinal purposes.

SPONSORS: Sen. Forsythe, Dist 4; Sen. White, Dist 9; Sen. Gallus, Dist 1; Rep. Merrick, Coos 2; Rep. Jennifer Coffey, Merr 6; Rep. MacKay, Merr 11

COMMITTEE: Health and Human Services

ANALYSIS

This bill permits the use of marijuana for medicinal purposes in New Hampshire.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/28/12 1416s

03/28/12 1494s

25Apr2012… 1751h

16May2012… 2143h

06/06/12 2441CofC

06/06/12 2510EBA

12-2994

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT relative to the use of marijuana for medicinal purposes.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Use of Marijuana for Medicinal Purposes. Amend RSA by inserting after c chapter 126-V the following new chapter:

CHAPTER 126-W

USE OF MARIJUANA FOR MEDICINAL PURPOSES

126-W:1 Definitions. In this chapter:

I. “Provider-patient relationship” means a relationship between a provider and a patient that includes:

(a) Taking a medical history;

(b) Performing a relevant physical examination;

(c) Reviewing prior treatment and treatment response;

(d) Obtaining and reviewing relevant diagnostic test results;

(e) The provider being available for and offering follow-up care and treatment to the patient, including but not limited to patient examinations;

(f) Creating and maintaining patient records; and

(g) Notifying the patient’s primary care provider when appropriate.

II. “Cultivation location” means a locked and enclosed site, under the control of the qualifying patient or designated caregiver who has reported the location of the site to the department, where marijuana is cultivated in accordance with the provisions of this chapter.

III.(a) “Qualifying medical condition” means the presence of both:

(1) A severely debilitating or terminal disease; and

(2) Symptoms or treatment results that include at least one of the following: wasting syndrome, severe pain that has not responded to previously prescribed medication or surgical measures for more than 3 months, elevated intraocular pressure, severe nausea, severe vomiting, seizures, or severe, persistent muscle spasms.

(b) “Severely debilitating or terminal disease” means:

(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C currently receiving antiviral treatment, amyotrophic lateral sclerosis, muscular dystrophy, Crohn’s disease, agitation of Alzheimer’s disease, multiple sclerosis, inflammatory autoimmune-mediated arthritis, Parkinson’s disease, systemic lupus erythematosus, quadriplegia, paraplegia, sickle cell disease, cerebral palsy, epilepsy, severe spinal cord injury, intractable skeletal muscular spasticity, traumatic brain injury, Tourette’s Syndrome, spinal cord disease, chronic pancreatitis with cysts, one or more injuries that significantly interfere with daily activities as documented by the patient’s treating provider, or painful peripheral neuropathy only if the application is accompanied by medical records that confirm the objective presence of painful peripheral neuropathy that has been refractory to other treatments; or

(2) A medical condition which is not listed in subparagraph (1) and which the commissioner determines, on a case by case basis, is severely debilitating or terminal, based upon the written request of a person who furnishes written certification to the commissioner and who demonstrates the symptoms or treatment results listed in subparagraph (a)(2).

IV. “Department” means the department of health and human services.

V. “Designated caregiver” means an individual:

(a) Who is at least 21 years of age; and

(b) Who has agreed to assist with a qualifying patient’s medical use of marijuana; and

(c) Who has never been convicted of any drug-related offense; and

(d) Who possesses a valid registry identification card issued pursuant to RSA 126-W:4

VI. “Marijuana” means all parts of any plant of the Cannabis genus of plants, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, salt, derivative, mixture, or preparation of such plant, its seeds, or resin. Such term shall not include the mature stalks of such plants, fiber produced from such stalks, oil, or cake made from the seeds of such plants, any other compound, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seeds of such plants which are incapable of germination.

VII. “Medical use” means the acquisition, possession, cultivation, preparation, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a qualifying patient’s qualifying medical condition or symptoms or results of treatment associated with the qualifying patient’s qualifying medical condition. It shall not include the use of marijuana by a designated caregiver who is not a qualifying patient.

VIII. “Medicinal use certificate” means a certificate issued by the commissioner of health and human services indicating that a donation has been made to the registry identification card fund established in RSA 126-W:7. The commissioner shall establish the minimum donation amount each

year in an amount sufficient to cover the costs associated with this chapter, but not to exceed $200. The donor shall receive one medicinal use certificate for each donation of the minimum amount and may transfer the certificate to any person applying as a qualified patient or a designated caregiver.

IX. “Provider” means a physician licensed to prescribe drugs to humans under RSA 329 and who possesses certification from the United States Drug Enforcement Administration to prescribe controlled substances. For a visiting qualifying patient, “provider” means an individual licensed to prescribe drugs to humans in the state of the patient’s residence and who possesses certification from the United States Drug Enforcement Administration to prescribe controlled substances.

X. “Qualifying patient” means an individual who has been diagnosed by a provider as having a qualifying medical condition and who possesses a valid registry identification card issued pursuant to RSA 126-W:4.

XI. “Registry identification card” means a document issued by the department pursuant to RSA 126-W:4 that identifies an individual as a qualifying patient or a designated caregiver.

XII. “Seedling” means a marijuana plant that has no flowers and is less than 12 inches in height and less than 12 inches in diameter.

XIII. “Unusable marijuana” means any marijuana, other than usable marijuana, including the seeds, stalks, and roots of the plant.

XIV. “Usable marijuana” means the dried leaves and flowers of the marijuana plant and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.

XV. “Visiting qualifying patient” means a patient with a qualifying medical condition who is not a resident of New Hampshire or who has been a resident of New Hampshire for fewer than 30 days.

XVI. “Written certification” means a document signed by a provider stating that in the provider’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a provider-patient relationship of at least 3 months in duration, the patient has a qualifying medical condition, and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. If the patient’s qualifying medical condition is of recent or sudden onset and the certifying provider is primarily responsible for the patient’s care related to his or her qualifying medical condition, the 3-month requirement for the provider-patient relationship required in this paragraph shall not apply. The written certification shall be valid for up to one year. The date of expiration and the patient’s qualifying medical condition shall be specified on the written certification.

126-W:2 Possession of Medical Marijuana by a Qualifying Patient or Designated Caregiver.

I. A qualifying patient shall not be subject to arrest, prosecution, or penalty, or denied any right or privilege for the medical use of marijuana in accordance with this chapter, if the qualifying patient possesses, cultivates, or possesses and cultivates, an amount of marijuana that does not exceed the following:

(a) If the qualifying patient does not have a designated caregiver for the possession and cultivation of marijuana that occurs at the cultivation location reported to the department, or while transporting marijuana and marijuana plants and seedlings to a new cultivation location that has been reported to the department within the prior 21 days:

(1) Six ounces of usable marijuana; and

(2) Any amount of unusable marijuana; and

(3) Four mature marijuana plants and 12 seedlings, with a total canopy of no more than 100 square feet.

(b) If the qualifying patient is not at the cultivation location reported to the department: (1) Two ounces of usable marijuana; and

(2) Any amount of unusable marijuana.

II. A designated caregiver shall not be subject to arrest, prosecution, or penalty, or denied any right or privilege for the medical use of marijuana in accordance with this chapter on behalf of a qualifying patient if the designated caregiver possesses or cultivates, or both, an amount of marijuana that does not exceed the following:

(a) If at the cultivation location reported to the department, or while transporting marijuana and marijuana plants and seedlings to a new cultivation location that has been reported to the department within the prior 21 days:

(1) Six ounces of usable marijuana; and

(2) Any amount of unusable marijuana; and

(3) Four mature marijuana plants and 12 seedlings, with a total canopy of no more than 100 square feet.

(b) If not at the cultivation location reported to the department:

(1) Two ounces of usable marijuana; and

(2) Any amount of unusable marijuana.

III. A qualifying patient or designated caregiver shall not be subject to arrest, prosecution, or penalty for giving marijuana to a qualifying patient or a visiting qualifying patient where nothing of value is transferred in return, or for offering to do the same, if the person giving the marijuana does not knowingly cause the recipient to possess more marijuana than is permitted by this section.

IV.(a) A qualifying patient is presumed to be lawfully engaged in the medical use of marijuana in accordance with this chapter if the qualifying patient possesses a valid registry identification card and possesses an amount of marijuana that does not exceed the amount allowed under this chapter.

(b) A designated caregiver is presumed to be lawfully engaged in assisting with the medical use of marijuana in accordance with this chapter if the designated caregiver possesses a valid registry identification card and possesses an amount of marijuana that does not exceed the amount allowed under this chapter.

(c) The presumptions made in subparagraphs (a) and (b) may be rebutted by evidence that conduct related to marijuana was not for the purpose of treating or alleviating the qualifying patient’s qualifying medical condition or symptoms or effects of the treatment associated with the qualifying medical condition, in accordance with this chapter.

V. A person otherwise entitled to custody of, or visitation or parenting time with, a minor shall not be denied such a right solely for conduct allowed under this chapter and there shall be no presumption of neglect or child endangerment.

VI. Notwithstanding paragraph III, a designated caregiver may receive compensation for costs, not including labor, associated with assisting a qualifying patient who has designated the designated caregiver to assist him or her with the medical use of marijuana. Such compensation shall not constitute the sale of controlled substances.

VII. A provider shall not be subject to arrest, prosecution, or penalty, or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by the New Hampshire board of medicine or any other occupational or professional licensing entity, solely for providing written certifications or for otherwise stating that, in the provider’s professional opinion, and in the context of a provider-patient relationship, a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana, provided that nothing shall prevent a professional licensing entity from sanctioning a provider for failing to properly evaluate a patient’s medical condition.

VIII. Any marijuana, marijuana paraphernalia, licit property, or interest in licit property that is possessed, owned, or used in connection with the medical use of marijuana as allowed under this chapter, or acts incidental to such use, shall not be seized or forfeited if the basis for the seizure or forfeiture is activity related to marijuana that is exempt from state criminal penalties under this chapter.

IX. An individual shall not be subject to arrest, prosecution, or penalty, or denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a court or occupational or professional licensing entity, simply for being in the presence or vicinity of the medical use of marijuana as allowed under this chapter.

X. A valid registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows, in the jurisdiction of issuance, a visiting qualifying patient to possess marijuana for medical purposes, shall have the same force and effect as a valid registry identification card issued by the department in this state, provided that:

(a) The visiting qualifying patient shall also produce a statement from his or her provider stating that the visiting qualifying patient has a qualifying medical condition as defined in RSA 126-W:1, III; and

(b) A visiting qualifying patient shall not cultivate marijuana in New Hampshire.

XI.(a) Any qualifying patient or registered caregiver who sells marijuana to another person who is not a qualifying patient or registered caregiver under this chapter shall be subject to the penalties specified in RSA 318-B:26, IX-a, shall have his or her registry identification card revoked, and shall be subject to other penalties as provided in RSA 318-B:26.

(b) The department may revoke the registry identification card of a qualifying patient or registered caregiver who violates any other provision of this chapter, and the qualifying patient or registered caregiver shall be subject to any other penalties established in law for the violation.

XII. Where a state or local law enforcement agency encounters an individual who, during the course of an investigation, credibly asserts that he or she is a qualifying patient or designated caregiver, the law enforcement agency shall not provide any information from any marijuana-related investigation of the individual or entity to any law enforcement agency that does not recognize the protection of this chapter, and any prosecution of the individual or entity for a violation of this chapter shall be conducted pursuant to the laws of this state. This paragraph shall not apply in cases where the state or local law enforcement agency has probable cause to believe the person is distributing marijuana to a person who is not allowed to possess it under this chapter.

XIII. A person who ceases to be a qualifying patient or designated caregiver shall have 10 days after notification by the department to dispose of marijuana in one of the following ways:

(a) If the person was a designated caregiver and the qualifying patient who designated the caregiver is still a qualifying patient, but has designated a new caregiver or will cultivate plants himself or herself, the designated caregiver may transfer marijuana to the new person who will cultivate for the qualifying patient;

(b) The person may notify local law enforcement and request that they dispose of the marijuana;

(c) The person may dispose of marijuana, after mixing marijuana with other ingredients such as soil to render it unusable; or

(d) The person may donate usable marijuana to a qualifying patient.

XIV. For the purposes of medical care, including organ transplants, a registered qualifying patient’s authorized use of marijuana in accordance with this chapter shall be considered the equivalent of the authorized use of any other medication used at the direction of a provider, and shall not constitute the use of an illicit substance.

126-W:3 Prohibitions and Limitations on the Use of Medical Marijuana.

I. A qualifying patient may use medical marijuana on privately owned real property only with the permission of the property owner.

II. Nothing in this chapter shall exempt any person from arrest or prosecution for:

(a) Being under the influence of marijuana while:

(1) Operating a motor vehicle, commercial vehicle, boat, or vessel, or any other vehicle propelled or drawn by power other than muscular power; or

(2) In his or her place of employment, without the written permission of the employer; or

(3) Operating heavy machinery or handling a dangerous instrumentality.

(b) The use or possession of marijuana by a qualified patient or designated caregiver for purposes other than for medical use as permitted by this chapter.

(c) The smoking of marijuana in any public place, including:

(1) A school bus, public bus, or other public vehicle; or

(2) A place of employment, without the written permission of the employer; or

(3) The grounds of any preschool, elementary, or secondary school; or

(4) Any correctional facility; or

(5) Any public park, public beach, public recreation center, public field, or youth center.

III. Nothing in this chapter shall be construed to require:

(a) Any health insurance provider, health care plan, or medical assistance program to be liable for any claim for reimbursement for the medical use of marijuana; or

(b) Any individual or entity in lawful possession of property to allow a guest, client, customer, or other visitor to use marijuana on or in that property. This chapter shall not limit an individual or entity in lawful possession of property, or an agent of such individual or entity, from expelling an individual who uses marijuana without permission from their property and from seeking civil and criminal penalties for the unauthorized use of marijuana on their property; or

(c) Any accommodation of the medical use of marijuana on the property or premises of any place of employment or on the property or premises of any jail, correctional facility, or other type of penal institution where prisoners reside or persons under arrest are detained. This chapter shall in no way limit an employer’s ability to discipline an employee for ingesting marijuana in the workplace or for working while under the influence of marijuana;

IV. Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a fine of $500, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this chapter.

V. A qualifying patient or designated caregiver who is found to be in possession of marijuana outside of his or her home and is not in possession of his or her registry identification card, may be subject to a $100 fine.

126-W:4 Departmental Administration.

I. Except as provided in paragraph V, the department shall issue a registry identification card to a person applying as a qualifying patient who submits all of the following information:

(a) Written certification as defined in RSA 126-W:1.

(b) An application or a renewal application accompanied by a medicinal use certificate.

(c) Name, residential and mailing address, and date of birth of the applicant, except that if the applicant is homeless, no residential address is required.

(d) Name, address, and telephone number of the applicant’s provider.

(e) Name, address, and date of birth of the applicant’s designated caregiver, if any. A qualifying patient shall have only one designated caregiver.

(f) Street address of the cultivation location, if the qualifying patient does not have a designated caregiver.

(g) A statement signed by the applicant, pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter and acknowledging that his or her diversion of marijuana is punishable as a class B felony and revocation of his or her registry identification card, in addition to other penalties for the illegal sale of marijuana.

II.(a) Except as provided in paragraph V, the department shall issue a registry identification card to a person applying as a designated caregiver who submits all of the following information:

(1) An application or a renewal application accompanied by a medicinal use certificate.

(2) Name, residential and mailing address, and date of birth of the applicant.

(3) Name, residential and mailing address, and date of birth of the qualifying patient for whom the applicant will act as designated caregiver, except that if the qualifying patient is homeless, no residential address is required. A designated caregiver shall act on behalf of only one qualifying patient.

(4) A complete set of fingerprints.

(5) Street address of the cultivation location.

(6) A statement indicating the applicant’s preference as to whether the applicant requests the department to retain his or her fingerprints on file for any renewal application or whether the applicant requests the department to destroy his or her fingerprints and acknowledges that the applicant shall resubmit fingerprints if the applicant applies for renewal as a designated caregiver.

(7) A signed statement from the applicant agreeing to act as the designated caregiver for the qualifying patient named in the application and pledging not to divert marijuana to anyone who is not allowed to possess marijuana pursuant to this chapter and acknowledging that the diversion of marijuana is punishable as a class B felony and revocation of one’s registry identification card, in addition to other penalties for the illegal sale of marijuana.

(b) A person who is applying to be a designated caregiver shall submit to a state and federal criminal records check. The department shall request the department of safety to perform the state and federal criminal records check and the department of safety shall complete such records checks and convey the findings of such checks to the department within 30 days of the request. The department and the department of safety may exchange necessary data including fingerprint data with the Federal Bureau of Investigation without disclosing that the records check is related to the provisions of this chapter and acts permitted by it. Unless the applicant stated that he or she prefers his or her fingerprints to be kept on file for any renewal, the department and the department of safety shall destroy each set of fingerprints obtained pursuant to this chapter after the criminal records check is complete.

III. The department shall verify the information contained in an application or renewal submitted pursuant to this section. The department shall approve or deny an application or renewal for a qualifying patient within 15 days of receipt of the application. The department shall approve or deny an application or renewal to serve as a designated caregiver within 45 days of receipt of the application. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or the applicant previously had a registry identification card revoked for violating the provisions of this chapter, or if the department determines that the information provided was falsified. The department shall notify an applicant of the denial of an application. An applicant who is aggrieved by a department decision may request an administrative hearing at the department.

IV. The department shall issue registry identification cards to persons applying as a qualifying patient or designated caregiver within 5 days of approving an application or renewal. Each registry identification card shall expire one year after the date of issuance, unless the provider states in the written certification that he or she believes the qualifying patient would benefit from medical marijuana only until a specified earlier date, then the registry identification card shall expire on that date. Registry identification cards shall contain all of the following:

(a) Name, mailing address, and date of birth of the qualifying patient or designated caregiver.

(b) The date of issuance and expiration date of the registry identification card.

(c) A random 10-digit identification number, containing at least 4 numbers and at least 4 letters, that is unique to the qualifying patient or the designated caregiver.

(d) A designation that the person is either a “qualifying patient” or a “designated caregiver.” If the person is a designated caregiver, the identification card shall include the random 10-digit identification number of the qualifying patient for whom he or she is providing care.

(e) A photograph of the qualifying patient or designated caregiver.

(f) A statement that the qualifying patient or designated caregiver is permitted under state law to possess marijuana pursuant to this chapter for the medical use of the qualifying patient.

(g) For a qualifying patient’s registry identification card, a statement that either:

(1) The person is a qualifying patient who has not designated a caregiver and is therefore exempt from state penalties for cultivating marijuana; or

(2) The person is a qualifying patient who has designated a caregiver, and therefore shall not be permitted to cultivate marijuana.

V. The department shall not issue a registry identification card to an applicant under 18 years of age who is applying as a qualifying patient unless:

(a) The applicant’s provider has explained the potential risks and benefits of the medical use of marijuana to the custodial parent or legal guardian with responsibility for health care decisions for the applicant; and

(b) The custodial parent or legal guardian with responsibility for health care decisions for the applicant consents in writing to:

(1) Allow the applicant’s medical use of marijuana; and

(2) Control the acquisition of the marijuana and the frequency of the medical use of marijuana by the applicant; and

(c) The custodial parent or legal guardian completes an application in accordance with the requirements of paragraph I on behalf of the applicant.

VI. The department shall provide each approved qualifying patient and caregiver a statement with the registry identification card explaining federal law on the possession of marijuana and that possession of a state registry identification card does not protect a person from federal criminal penalties.

VII.(a) A qualifying patient shall notify the department of any change in his or her name, address, or designated caregiver within 10 days of such change. If the qualifying patient’s certifying provider notifies the department in writing that either the qualifying patient no longer suffers from a qualifying medical condition or that the provider no longer believes the qualifying patient would receive benefit from the medical use of marijuana, the registry identification card shall become void upon notification by the department to the qualifying patient.

(b) When a qualifying patient or a designated caregiver notifies the department of any change to a name or address, the department shall issue the qualifying patient or designated caregiver a new registry identification card with a new random 10-digit identification number within 15 days of receiving the updated information.

(c) If a qualifying patient notifies the department of a change in his or her designated caregiver and the prospective designated caregiver meets the requirements of this chapter, the department shall issue the designated caregiver a registry identification card with a new random 10-digit identification number within 45 days of receiving the designated caregiver’s application.

(d) A qualifying patient or designated caregiver who fails to notify the department of any changes to his or her name, address, designated caregiver, or cultivation location shall be guilty of a violation and may be subject to a fine not to exceed $150.

(e) If a qualifying patient or designated caregiver loses his or her registry identification card, he or she shall notify the department within 10 days of losing the card. Within 5 days after such notification, the department shall issue a new registry identification card with a new random 10-digit identification number.

VIII. Mere possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the individual or property of the individual possessing or applying for the registry identification card. The possession of, or application for, a registry identification card shall not preclude the existence of probable cause if probable cause exists on other grounds.

IX.(a) The department shall create and maintain a confidential registry of each individual who has applied for and received a registry identification card as a qualifying patient or a designated caregiver in accordance with the provisions of this chapter. Each entry in the registry shall contain the qualifying patient’s or designated caregiver’s name, mailing address, date of birth, date of registry identification card issuance, date of registry identification card expiration, random 10-digit identification number, street address at which the marijuana plants will be cultivated or possessed, and the effective date of any change of cultivation location. The confidential registry and the information contained in it shall be exempt from disclosure under RSA 91-A.

(b)(1) Except as specifically provided in this chapter, no person shall have access to any information about qualifying patients or designated caregivers in the department’s confidential registry, or any information otherwise maintained by the department about providers, except for authorized employees of the department in the course of their official duties and local and state law enforcement personnel who have detained or arrested an individual who claims to be engaged in the medical use of marijuana.

(2) If a local or state law enforcement officer submits a sworn affidavit to the department affirming that they have probable cause to believe marijuana is possessed or cultivated at a specific address, an authorized employee for the department may disclose whether the location is associated with a qualifying patient, designated caregiver, or a cultivation location.

(3) If a local or state law enforcement officer submits a sworn affidavit to the department affirming that they have probable cause to believe a specific individual possesses or cultivates marijuana, an authorized employee for the department may disclose whether the person is a qualifying patient or a designated caregiver, provided that the law enforcement officer provides the person’s name and address or name and date of birth.

(4) Counsel for the department may notify law enforcement officials about falsified or fraudulent information submitted to the department where counsel has made a legal determination that there is probable cause to believe the information is false or falsified.

X. Within 5 days of learning of the death of a qualifying patient, a surviving family member, caretaker, executor, or the patient’s designated caregiver shall notify the department that the qualifying patient has died. Within 5 days of learning of the death of a qualifying patient, the surviving family member, caretaker, executor, or the patient’s designated caregiver shall either request that the local law enforcement agency remove any remaining marijuana or shall dispose of the marijuana in a manner that is specified by the department by rule.

XI. The department shall submit to the legislature an annual report that shall not disclose any identifying information about qualifying patients, designated caregivers, or providers, but shall contain, at a minimum, the following information:

(a) The number of applications and renewals filed for registry identification cards.

(b) The number of qualifying patients and designated caregivers approved in the state.

(c) The nature of the qualifying medical conditions of the qualifying patients.

(d) The number of registry identification cards revoked.

(e) The number of providers providing written certifications for qualifying patients.

126-W:5 Affirmative Defense.

I. Except as provided in RSA 126-W:3, it is an affirmative defense to any prosecution for an

offense involving marijuana or marijuana paraphernalia intended for medical use that:

(a) The defendant is a qualifying patient in possession of a valid registry identification card and at the time of arrest or prosecution was in possession of a quantity of marijuana that was not more than allowed under this chapter, and the qualifying patient was engaged in the medical use of marijuana in accordance with the provisions of this chapter; or

(b)(1) The defendant is a designated caregiver in possession of a valid registry identification card and at the time of arrest or prosecution was in possession of a quantity of marijuana that was not more than allowed under this chapter; and

(2) The designated caregiver was engaged in the medical use of marijuana on behalf of a qualifying patient in accordance with the provisions of this chapter.

(c) If a defendant proves the elements of the affirmative defense listed in subparagraph (I)(a) or (b), the charges shall be dismissed with prejudice.

II. A person who is arrested for possession, cultivation, or transportation of marijuana, or possession of marijuana paraphernalia, may raise as an affirmative defense that he or she is person with a qualifying medical condition who is not yet in possession of a valid registry identification card if:

(a) Prior to the arrest, the person submitted to the department a valid application to become a qualifying patient, complete with a written certification, but the person had not yet received a registry identification card from the department; and

(1) The person does not possess more than 2 ounces of usable marijuana and any amount of unusable marijuana, if the marijuana is not on the person’s property; or

(2) If the marijuana is on the person’s property, the person does not possess more than 6 ounces of usable marijuana and any amount of unusable marijuana and is not cultivating more than 4 mature marijuana plants and 12 seedlings, which shall be in a locked and enclosed location on the person’s property.

(b) The affirmative defense under this section shall not be available to a person who has violated any of the provisions of RSA 126-W:3, I-IV.

(c) If a defendant proves the elements of the affirmative defense listed in this paragraph, the defendant shall be acquitted of any charge to which the defendant proved the affirmative defense.

III. A person who is arrested for possession, cultivation, or transportation of marijuana, or possession of marijuana paraphernalia, prior to the date on which the department begins accepting registry identification card applications may raise as an affirmative defense that he or she is a person with a qualifying medical condition who is not yet in possession of a valid registry identification card if:

(a) The person produces a written statement signed by a provider stating that in the provider’s professional opinion, after having completed a full assessment of the person’s medical history and current medical condition made in the course of a provider-patient relationship of at least 3 months duration, unless the person’s qualifying medical condition is of recent or sudden onset in which case the 3-month time requirement shall not apply, the person has a qualifying medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the person; and

(1) The person does not possess more than 2 ounces of usable marijuana and any amount of unusable marijuana, if the marijuana is not on the person’s property; and

(2) If the marijuana is on the person’s property, the person does not possess more than 6 ounces of usable marijuana and any amount of unusable marijuana, and does not possess or is not cultivating more than 4 mature marijuana plants and 12 seedlings which shall be in a locked and enclosed location.

(b) The affirmative defense under this section shall not be available to a person who has violated any of the provisions of RSA 126-V:3, I-IV.

(c) If a defendant proves the elements of the affirmative defense listed in this paragraph, the defendant shall be acquitted of any charge to which the defendant proved the affirmative defense.

126-W:6 Rulemaking.

I. Not later than 90 days after the effective date of this chapter, the department shall adopt rules, pursuant to RSA 541-A, governing the manner in which it shall consider and process applications for issuance and renewals of registry identification cards for qualifying patients and designated caregivers and for the processing of medicinal use certificates.

II. The department may accept gifts, grants, donations, or other funds from private sources without the approval of the governor and council.

126-W:7 Registry Identification Card Fund. There is hereby established in the office of the state

treasurer a fund to be known as the registry identification card fund which shall be kept separate and distinct from all other funds. The fund is established to pay for the operational expenses of the program for permitting the use of marijuana for medicinal purposes as established in this chapter. The moneys in this fund shall be nonlapsing and continually appropriated to the department. Interest on fund balances shall accrue to the fund. All fines and other income received by the department and all monetary gifts, grants, and donations received by the department pursuant to this chapter shall be deposited in the fund.

2 New Subparagraph; Application of Receipts; Registry Identification Card Fund. Amend RSA 6:12, I(b) by inserting after subparagraph (307) the following new subparagraph:

(308) Moneys deposited in the registry identification card fund established in RSA 126-W:7.

3 New Paragraph; Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2 by inserting after paragraph I-a the following new paragraph:

I-b. It shall be unlawful for a qualifying patient or designated caregiver as defined under RSA 126-W:1 to sell marijuana to another person who is not a qualifying patient or designated

caregiver. A conviction for the sale of marijuana to a person who is not a qualifying patient or designated caregiver shall not be construed to preclude or limit a prosecution or conviction of any person for sale of marijuana or any other offense defined in this chapter.

4 New Paragraph; Controlled Drug Act; Penalties. Amend RSA 318-B:26 by inserting after paragraph IX the following new paragraph:

IX-a. A qualifying patient or designated caregiver as defined in RSA 126-W:1 who is

convicted of selling marijuana to a person who is not a qualifying patient or designated caregiver shall be guilty of a class B felony and shall be sentenced to a maximum term of imprisonment of not more than 7 years, a fine of not more than $300,000, or both.

5 Repeal. The following are repealed:

I. RSA 126-W:1 through RSA 126-W:7, relative to use of marijuana for medicinal purposes.

II. RSA 6:12, I(b)(308), relative to the registry identification card fund.

III. RSA 318-B:2, I-b, relative to selling marijuana to a person who is not a qualifying patient or a designated caregiver.

IV. RSA 318-B:26, IX-a, relative to the penalty for selling marijuana to a person who is not a qualifying patient or a designated caregiver.

6 Applicability. The provisions of RSA 126-W:1-4 as inserted by section 1 of this act shall take effect on the earlier of July 1, 2013 or upon certification by the commissioner of the department of health and human services to the secretary of state and the director of the office of legislative services that sufficient funds are available in the registry identification card fund established in RSA 126-W:7 to meet the expenses of the use of marijuana for medicinal purposes program established in RSA 126-W from the effective date of this section until July 1, 2013.

7 Effective Date.

I. RSA 126-W:1-4 as inserted by section 1 of this act shall take effect as provided in section 6

of this act.

II. Section 5 of this act shall take effect July 1, 2015.

III. The remainder of this act shall take effect upon its passage.

LBAO

12-2994

Revised 03/12/12

409-FN - FISCAL NOTE

AN ACT relative to the use of marijuana for medicinal purposes.

FISCAL IMPACT:

METHODOLOGY:

 

FY 2013

FY 2014

FY 2015

FY 2016

Build and maintain a database and voice response telephone system for law enforcement to verify I.D. cards.

$85,000

$5,000

$5,000

$5,000

Salary and benefits for full-time Licensing Clerk (LG 11) and Program Specialist (LG 25)

$119,439

$119,439

$119,439

$119,439

Total Expenditures:

$204,439

$124,439

$124,439

$124,439