Medical Marijuana’s Unintended Consequences Bruce McIntyre, JD Rhode Island Department of Health June 17, 2011
National Over 1 million Americans use medical marijuana $ 1.7 Billion industry AG Eric Holder says he will soon clarify the DOJ position on medical marijuana. Until this occurs, there is no clear legal position for states to follow.
Throughout the States General public attitude that permitted medical marijuana use (possession of a “Medical Marijuana Card”) is universal license to access, use, and grow marijuana –Over 2500 medical marijuana dispensaries in California. –Heavy dispensary advertising online, in newspapers, and on the streets No definitive federal law regarding permissive use, distribution, and growth of medical marijuana –Federal raids on dispensaries have increased significantly Consumption by minors has increased since the legalization of medical marijuana
The Medical Marijuana Card Possession of a Medical Marijuana Card does not legalize drug possession for the cardholder –Acts solely as an affirmative defense
Rhode Island According to a statewide poll, 80% of Rhode Islanders favor decriminalization of marijuana. Dispensaries are pending, contingent on a guarantee from the Dept. of Justice that they will neither be raided nor shut down. Projected marijuana tax revenue, $4.6 million annually
Employment State Medical Marijuana statutes do not regulate private employment According to the RI Medical Marijuana Statute: –A cardholder is not considered “under the influence” of marijuana solely based on the presence of marijuana metabolites in his/her system – Inconsistent with federal standards The RI statute is the only one to prohibit employee discrimination based on cardholder status –Under the ADA, an employer does not to have to accommodate a cardholder
Criminal Complying with state law does not protect against federal law Probable cause for a warranted search must consider a person’s status as a qualified user –BUT, officials are not required to abandon a search if presented with a medical marijuana card. Holding a registry card does grant immunity from prosecution for illegal cultivation and possession If medical marijuana is seized while it is legally possessed, it must be returned. (City of Garden Grove v. Superior Court)
Landlord/Tenant RI law prohibits discrimination against individuals in possession of a marijuana registration card –Not recognized by the ADA or FHA Landlords leasing to marijuana participants face the possibility of federal prosecution and property forfeiture Commercial property owners who voluntarily lease space to medical marijuana establishments face financial risk due to the uncertainty of federal enforcement and regulations Property maintained as a marijuana storage house is in violation of federal law regardless of state law
Institutional Use Absent evidence that medical marijuana is required for treatment of a medical condition, it will not be permitted during incarceration. –No Amendment VIII violation No case law on use of medical marijuana as treatment in hospitals, clinics, or other healthcare facilities. –In July 2010, the Department of Veteran Affairs announced that it will formally allow patients treated at its hospitals and clinics to use medical marijuana in states where it is legal.
Bruce McIntyre, JD Acting Chief Administrative Officer Board of Medical Licensure and Discipline 401.222.7890 Bruce.McIntyre@health.ri.gov www.health.ri.gov