[First Reprint]

SENATE, No. 119

STATE OF NEW JERSEY

213th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2008 SESSION

 


 

Sponsored by:

Senator NICHOLAS P. SCUTARI

District 22 (Middlesex, Somerset and Union)

Senator JIM WHELAN

District 2 (Atlantic)

 

Co-Sponsored by:

Senators Cunningham, Lesniak, Stack, Sweeney, Weinberg and Vitale

 

 

 

 

SYNOPSIS

     Establishes "New Jersey Compassionate Use Medical Marijuana Act."

 

CURRENT VERSION OF TEXT

     As reported by the Senate Health, Human Services and Senior Citizens Committee on December 15, 2008, with amendments.

  


An Act concerning the medical use of marijuana and supplementing Title 24 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  This act shall be known and may be cited as the "New Jersey Compassionate Use Medical Marijuana Act."

 

     2.  The Legislature finds and declares that:

     a.  Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences' Institute of Medicine in March 1999;

     b.  According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, 99 out of every 100 marijuana arrests in the country are made under state law, rather than under federal law.  Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana.

     c.  Although federal law currently prohibits the use of marijuana, the laws of Alaska, California, Colorado, Hawaii, Maine, 1Michigan, Montana,1 Nevada, 1New Mexico,1 Oregon, 1Rhode Island,1 Vermont, 1and1 Washington 1[and Montana]1 permit the use of marijuana for medical purposes, and in Arizona doctors are permitted to prescribe marijuana.  New Jersey joins this effort for the health and welfare of its citizens.

     d.  States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law.

     e.  Compassion dictates that a distinction be made between  medical and non-medical uses of marijuana.  Hence, the purpose of this act is to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients 1who use marijuana to alleviate1 suffering from debilitating medical conditions, 1[and] as well as1 their physicians 1[and],1 primary caregivers, 1[if such patients engage in the medical use of marijuana] and those who are authorized to produce marijuana for medical purposes1.

 

     3.  As used in this act:

     “Bona fide physician-patient relationship” means a physician has
completed a full assessment of the patient's medical history and current medical condition, including a personal physical examination.

     “Commissioner” means the Commissioner of Health and Senior Services.

     “Debilitating medical condition” means:

     (1) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

     (2) a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe or chronic pain; severe nausea; seizures, including, but not limited to, those characteristic of epilepsy; severe and persistent muscle spasms, including, but not limited to, those characteristic of multiple sclerosis or Crohn's disease; or

     (3) any other medical condition or its treatment that is approved by the department by regulation.

     “Department” means the Department of Health and Senior Services.

     “Marijuana” has the meaning given in section 2 of the “New Jersey Controlled Dangerous Substances Act,” P.L.1970, c.226 (C.24:21-2).

     1“Medical marijuana alternative treatment center” or “alternative treatment center” means an entity registered pursuant to section 5 of this act, which acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, or dispenses marijuana or related supplies and educational materials to registered patients or their registered primary caregivers.1 

     “Medical use” means the acquisition, possession, cultivation, manufacture, use, delivery, transfer1[,]1 or transportation of marijuana or paraphernalia relating to a qualifying patient's consumption of marijuana to alleviate the symptoms or effects of the patient's debilitating medical condition.

     “Physician” means a person licensed to practice medicine and surgery pursuant to Title 45 of the Revised Statutes.

     “Primary caregiver” or “caregiver” means 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 patient's medical use of marijuana and has been designated as primary caregiver on the qualifying patient's application or renewal for a registry identification card or in other written notification to the department.  A primary caregiver shall only have one qualifying patient at any one time.  “Primary caregiver” shall not include the qualifying patient's physician. 

     “Qualifying patient” or “patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.

     “Registry identification card” means a document issued by the department that identifies a person as a qualifying patient or primary caregiver, and shall include a registry identification card or its equivalent, issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient's medical use of marijuana.

     “Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks and roots of the plant.

     “Written certification” means the qualifying patient's medical records, or a statement signed by a physician with whom the patient has a bona fide physician-patient relationship, stating that in the physician's professional opinion, after having completed a full assessment of the qualifying patient's medical history and current medical condition, the qualifying patient has a debilitating medical condition for which recognized drugs or treatments are not or would not be effective  and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.

 

     4.  a. (1)  A qualifying patient shall not be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, for the medical use of marijuana, provided that the patient possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana. 

     (2)  There shall exist a rebuttable presumption that a qualifying patient is engaged in the medical use of marijuana if he possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana.  The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the symptoms or effects of a patient's debilitating medical condition.

     (3)  A qualifying patient may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana unless the patient was in violation of section 1[5] 71  of this act when the events giving rise to the prosecution occurred.  The defense shall be presumed valid where the evidence shows that:

     (a) at the time of the events giving rise to the prosecution, the patient's medical records indicated or a physician stated that, in the physician'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 bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient; and

     (b) the patient and his caregiver, if any, were collectively in possession of no more than six marijuana plants and one ounce of usable marijuana.

     (4)  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

     (5)  The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a qualifying patient has in his possession a registry identification card and no more than six marijuana plants and one ounce of usable marijuana1, or if an alternative treatment center permit holder has in his possession no more than six marijuana plants and one ounce of usable marijuana per registry identification card holder1.

     b.  The provisions of subsection a. of this section shall not apply to a qualifying patient under the age of 18 years, unless:

     (1) the patient's physician has explained to the patient and the patient's custodial parent, guardian, or person having legal custody, the potential risks and benefits of the medical use of marijuana; and

     (2) the custodial parent, guardian, or person having legal custody consents in writing to: allow the patient's medical use of marijuana; serve as the patient's primary caregiver; and control the acquisition, dosage, and frequency of the medical use of marijuana by the patient.

     c.  (1)  A primary caregiver who has in his possession a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, for assisting a qualifying patient to whom the caregiver is connected through the department's registration process with the medical use of marijuana, provided that the caregiver possesses no more than six marijuana plants and one ounce of usable marijuana for the patient to whom he is connected through the department's registration process. 

     (2)  There shall exist a rebuttable presumption that a primary caregiver is engaged in the medical use of marijuana if the caregiver possesses a registry identification card and no more than six marijuana plants and one ounce of usable marijuana.  The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition.

     (3) A primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana unless the caregiver was in violation of section 1[5] 71 of this act when the events giving rise to the prosecution occurred.  The defense shall be presumed valid where the evidence shows that:

     (a) at the time of the events giving rise to the prosecution, the patient's medical records indicated or a physician stated that, in the physician'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 bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient; and

     (b) the patient and his caregiver, if any, were collectively in possession of no more than six marijuana plants and one ounce of usable marijuana.

     (4)  Possession of, or application for, a registry identification card shall not alone constitute probable cause to search a person or property of a person possessing or applying for the registry identification card, or otherwise subject the person or his property to inspection by any governmental agency.

     (5)  The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of marijuana determined to exist by the department, shall not apply if a primary caregiver has in his possession a registry identification card and no more than six marijuana plants and one ounce of usable marijuana1, or if an alternative treatment center permit holder has in his possession no more than six marijuana plants and one ounce of usable marijuana per registry identification card holder1.

     d.  A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by the State Board of Medical Examiners, for providing written certification for the medical use of marijuana to a qualifying patient.

     e.  No person shall be subject to arrest or prosecution for constructive possession, conspiracy or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this act.

 

     15. a. The department shall establish a registration program authorizing medical marijuana alternative treatment centers to produce marijuana for medical purposes, and may charge a reasonable fee for the issuance of a registration permit under this section.

     b.  The department shall require that a permit applicant provide information that includes, but is not limited to:

     (1) the name of the person responsible for operating the alternative treatment center;

     (2) the names of all employees, whether volunteer or paid;

     (3) the location of the alternative treatment center;

     (4) the registry identification card number of each cardholder for whom marijuana is to be produced; and

     (5) any other information that the department considers necessary.

     c. A person who has been convicted of possession or sale of a controlled dangerous substance shall not be issued a permit to operate an alternative treatment center 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 this act.

     d. The department shall issue a permit to a person to operate an alternative treatment center if the requirements of this section are met and the department has verified the information contained in the application.  The department shall approve or deny an application within 60 days after receipt of a completed application.  The denial of an application shall be considered a final agency decision, subject to review by the Appellate Division of the Superior Court.

     e.  A person who has been issued a permit pursuant to this section shall display the permit at the alternative treatment center at all times when marijuana is being produced, or dispensed to a registered qualifying patient or designated primary caregiver of the patient.

     f.  An alternative treatment center permit holder shall report any change in information to the department not later than 10 days after such change, or the permit shall be deemed null and void.

     g.  All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder are the property of the registered patient and must be provided to the patient upon request.

     h. A registered patient or the designated primary caregiver of the patient may reimburse the alternative treatment center for reasonable costs associated with the production of marijuana for the cardholder.1

 

     16.  A medical marijuana alternative treatment center permit holder or his employee shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for the acquisition, distribution, possession, cultivation, or transportation of marijuana or paraphernalia related to marijuana on behalf of a registered patient, provided the amount of any marijuana so acquired, distributed, possessed, cultivated, or transported, together with the combined amount of marijuana possessed by the registered patient and his primary caregiver, shall not exceed six marijuana plants and one ounce of usable marijuana for each registered patient for whom the alternative treatment center permit holder is authorized to produced marijuana.  For the purposes of this subsection, “distribution” or “distributed” means the transfer of marijuana and paraphernalia related to marijuana from the alternative treatment center permit holder to the registered patient or his primary caregiver.1

 

     1[5.] 7.1  The provisions of this act shall not be construed to permit any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana; or smoke marijuana in a school bus or other form of public transportation, on any school grounds, in any correctional facility, at any public park or beach, or at any recreation center.  A person who commits an act as provided in this section shall be subject to such penalties as provided by law.

 

     1[6.] 8.1  It shall be a disorderly persons offense for a person to fabricate or misrepresent a registry identification card 1or a medical marijuana alternative treatment center permit1 to a law enforcement official.

 

     1[7.] 9.1 a.  The department shall establish a registry and shall issue a registry identification card to a qualifying patient who submits the following, in accordance with the department's regulations:

     (1) written certification that the person is a qualifying patient;

     (2) an application or renewal fee, which may be based on a sliding scale as determined by the commissioner;

     (3) name, address and date of birth of the patient;

     (4) name, address and telephone number of the patient's physician; and

     (5) name, address and date of birth of the patient's primary caregiver, if any.

     Before issuing a registry identification card, the department shall verify the information contained in the application or renewal form submitted pursuant to this section.  The department shall approve or deny an application or renewal within 15 days of receipt of the application or renewal, and shall issue a registry identification card within five days of approving the application or renewal.  The department may deny an application or renewal only if the applicant fails to provide the information required pursuant to this section, or if the department 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.

     b.  The department shall issue a registry identification card to the caregiver named in a patient's approved application, if the caregiver signs a statement agreeing to provide marijuana only to the patient who has named him as caregiver.  However, the department shall not issue a registry identification card to a proposed caregiver who has previously been convicted of a felony drug offense.

     c.  A registry identification card shall contain the following information:

     (1) the name, address and date of birth of the patient;

     (2) the name, address and date of birth of the patient's caregiver, if any;

     (3) the date of issuance and expiration date of the registry identification card;

     (4) photo identification of the cardholder; and

     (5) such other information that the department may specify in its regulations.

A patient who has been issued a registry identification card shall notify the department of any change in the patient's name, address, physician or caregiver, or change in status of the patient's debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

     d.  The department shall maintain a confidential list of the persons to whom it has issued registry identification cards.  Individual names and other identifying information on the list shall be confidential, and shall not be considered a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), and shall not be disclosed except to:

     (1) authorized employees of the department as necessary to perform official duties of the department; or

     (2) authorized employees of State or local law enforcement agencies, only as 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.

 

     1[8.] 10.1  The commissioner may accept from any governmental department or agency, public or private body or any other source grants or contributions to be used in carrying out the purposes of this act.

 

     1[9.] 11.1 The commissioner shall report annually to the Governor and the Legislature on the number of applications for registry identification cards, the number of qualifying patients and primary caregivers 1[approved] registered1, 1the number of medical marijuana alternative treatment center permits issued,1 the nature of the debilitating medical conditions of the patients, the number of registry identification cards 1and alternative treatment center permits1 revoked, and the number of physicians providing written certifications for patients.  The report shall not contain any identifying information of patients, caregivers1, alternative treatment centers,1 or physicians.


     1[10.] 12.1  Nothing in this act shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace.

 

     1[11.] 13.1  The State shall not be held liable for any deleterious outcomes from the medical use of marijuana by any qualifying patient.

 

     1[12.] 14. a.1 Pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), the commissioner shall promulgate rules and regulations to effectuate the purposes of this act. The regulations shall establish: the application and renewal form, process and fee schedule; and the manner in which the department will consider petitions from the public to add debilitating medical conditions to those included in this act.

     1b.   Notwithstanding any provision of P.L.1968, c.410 to the contrary, the commissioner shall adopt, immediately upon filing with the Office of Administrative Law and no later than the 90th day after the effective date of this act, such regulations as the commissioner deems necessary to implement the provisions of section 9 of this act.  Regulations adopted pursuant to this subsection shall be effective until the adoption of rules and regulations pursuant to subsection a. of this section and may be amended, adopted, or readopted by the commissioner in accordance with the requirements of P.L.1968, c.410.1

 

     1[13.] 15.1  This act shall take effect 90 days after enactment.