BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2002-2003 Regular Session B
4
2
0
SB 420 (Vasconcellos)
As Introduced February 20, 2003
Hearing date: May 6, 2003
Health & Safety Code and Uncodified Law
JM:mc
MEDICINAL MARIJUANA
HISTORY
Source: Author
Prior Legislation: SB 187 (Vasconcellos) - 2001; not brought up for
concurrence in Assm. amends
SB 848 (Vasconcellos) - 2000; failed on Assembly
Floor
SB 2089 (Johannessen) - 2000; failed in Senate
Health and Human Services
SB 550 (Johnston) - Ch. 8, Stats. 2000
(Dronabinol-synthetic THC)
SB 847 (Vasconcellos) - Ch. 750, Stats. 1999
Support: Attorney General; Americans for Medical Rights; Drug
Policy Alliance; Marijuana Policy Project; Friends
Committee on Legislation of California; California
Medical Association; California Nurses Association;
City and County of San Francisco; San Francisco Aids
Foundation; San Mateo County Board of Supervisors;
California Chapter of National Organization for the
Reform of Marijuana Laws; Being Alive Los Angeles;
Americans for Safe Access; Marijuana Policy Project;
Santa Barbara Patient/Doctor Coalition
(More)
SB 420 (Vasconcellos)
PageB
Opposition:Committee on Moral Concerns; Recovery California
Coalition; California Conference of Local Health
Officers; Campaign for California Families
KEY ISSUE
SHOULD THE LEGISLATURE ENACT A MEASURE TO IMPLEMENT THE
COMPASSIONATE USE OF MARIJUANA ACT OF 1996, INCLUDING A VOLUNTARY
REGISTRATION CARD PROCEDURE, SO THAT QUALIFIED PATIENTS COULD USE
THERAPEUTIC MARIJUANA WITHOUT FEAR OF PROSECUTION?
PURPOSE
The purpose of this bill is to implement the Compassionate Use
of Marijuana Act in a manner that would allow qualified patients
to obtain therapeutic marijuana without fear of arrest and
prosecution.
Existing federal and state laws list marijuana in Schedule I of
Schedules I through V of "controlled substances." Schedule I
controlled substances are deemed to have no medical use.
Generally speaking, the schedules are designed to classify drugs
by potential for abuse, with those in Schedule I deemed to be
the most subject to abuse and those in Schedule V the least
subject to abuse. The restrictions on use of controlled
substances and, to a somewhat lesser degree, the punishment for
illegal possession or transfer of them, are reduced from
Schedule I through V. (Health & Saf. Code 11054 et seq.)
Existing California law defines the following crimes and
penalties for the possession and transfer of marijuana:
Possession of 28.5 or less grams Misdemeanor, maximum
punishment of a $100 fine.
Possession of more than 28.5 grams Misdemeanor, maximum
jail term of 6 months, fine up to
$500.
(More)
SB 420 (Vasconcellos)
PageC
Possession of concentrated cannabis Misdemeanor,
maximum 1-year jail term, fine of
up to $500.
Possession for sale Felony prison term of 16
months, 2-years or 3-years, fine
up to $10,000.
Cultivation Felony, prison term of 16
months, 2-years or 3-years, fine
up to $10,000.
Sale or transfer Felony, prison term of 2, 3
or 4 years, fine up to $10,000.
Existing California law, the Compassionate Use Act of 1996 ,
provides that the possession or cultivation of marijuana by a
patient, or a patient's primary caregiver, upon the
recommendation or approval of a physician and for the patient's
personal medical use, is not unlawful, notwithstanding general
criminal laws to the contrary. The Act further directs the
Legislature to establish a legal means of distributing marijuana
to patients.
Existing federal law on possession or distribution of marijuana
conflicts with the Act, as federal law does not allow medical
use of marijuana.
This bill establishes a voluntary statewide medical marijuana
Registration Identification Card (RIC) Program administered by
the Department of Health Services (DHS).
This bill defines "qualified patient (QP)," "person with
identification card," "attending physician," "primary
caregiver," and "serious medical condition" for the purposes of
this bill.
This bill defines serious medical condition thus: AIDS. (2)
Anorexia. (3) Arthritis. (4) Cachexia. (5) Cancer. (6)
(More)
SB 420 (Vasconcellos)
PageD
Chronic pain. (7) Glaucoma. (8) Migraine. (9) Persistent
muscle spasms, such as those attending multiple sclerosis. (10)
Seizures, such as those associated with epilepsy. (11) Severe
nausea. (12) Any chronic or persistent medical symptom that
either: (A) Substantially limits the ability of the person to
conduct one or more major life activities as defined in the
Americans with Disabilities Act of 1990. (B) If not alleviated,
may cause serious harm to the patient's safety or physical or
mental health.
This bill defines a "person with an identification card" as a
qualified patient who has applied for and received a valid
identification card pursuant to this article.
This bill defines a "qualified patient" as a person who is
entitled to the protections of the Compassionate Use Act, but
who does not have an identification card issued pursuant to this
article.
This bill defines primary caregiver thus:
Designated by qualified patient or RIC holder, with specified
limits and requirements where one person is the caregiver for
multiple patients
Must be at least 18, with limited exceptions for parents and
others entitled to make medical decisions
Operator or designated employees of a specified clinic or
hospice, as defined
This bill requires DHS to establish and maintain a voluntary
program for the issuance of registry identification cards (RIC)
to qualified patients and primary caregivers; requires DHS to
develop protocols and application forms for use by county health
departments; and authorizes DHS to establish an application and
renewal fee.
This bill requires every county health department to utilize
protocols developed by DHS, as specified to do the following:
? Provide, receive and process RIC applications
(More)
SB 420 (Vasconcellos)
PageE
? Maintain records of the RIC Program, as specified
? Transmit application information to DHS
? Authorizes the county health department to designate another
entity to perform functions necessary to implement the Act and
this bill.
This bill sets requirements of an applicant to acquire and renew
an RIC.
This bill provides the following with respect to an RIC:
? An RIC is not necessary to claim the protections of the Act.
? No person or primary caregiver with an RIC shall be subject to
arrest for possession, transportation, delivery or cultivation
of medical marijuana in an amount approved by DHS.
? State and local law enforcement officials shall accept RICs,
unless there is reasonable suspicion of fraud.
? A patient holding an RIC, a primary caregiver or other person
shall not be subject to criminal liability based solely on
conforming to this bill.
? An individual is not authorized to smoke or consume marijuana
unless otherwise authorized by the Act.
? A primary caregiver or other person, as specified, who
receives reasonable compensation for services or expenses, is
not subject to criminal liability based solely on conforming
to this bill.
? RICs for patients and primary caregivers should be readily
distinguishable.
This bill provides the following with respect to county and
state duties as to RICs
? County health departments must verify information in
applications, photograph applicants and caregivers, and
approve/deny applications within 30 days.
? Counties must issue a temporary card that shall be valid for
30 days if an applicant can establish that the card is needed
on an emergency basis. The card may be extended for a maximum
of 30 days.
(More)
SB 420 (Vasconcellos)
PageF
? Counties, within 24 hours of approving an application, must
electronically transmit to DHS: a unique applicant ID number;
expiration date of the card; and identifying information of
the entity that approved the application.<1>
? Counties shall issue ID cards within 5 working days of
approving the application.
? The following information must be contained on an ID card:
unique ID number
identifying information of approving agency
photo of cardholder
24-hour phone number for law enforcement to immediately
verify the validity of the card.
This bill authorizes qualified patients, RIC holders, and
designated caregivers to form cooperatives so as to cultivate
marijuana for medical purposes in accordance with DHS
regulations.
This bill prohibits the smoking of medical marijuana in any
place where smoking is prohibited by law, and other specified
locations, including motor vehicles.
This bill does not require any accommodation of medical
marijuana on the premises of any place of employment or any
correctional facility.
This bill does, nevertheless, provide that an incarcerated
person may apply for an RIC, and that a correctional facility
may permit an incarcerated person to use medical marijuana,
where such use would not endanger the health of other prisoners
or the security of the institution.
This bill provides the following with respect to the conditions
---------------------------
<1> Discussions with the author's office indicate that San
Francisco has established a model for verification or
authentication of an RIC that can be applied statewide.
(More)
SB 420 (Vasconcellos)
PageG
of probation, parole or bail:
A probationer or defendant on bail may request that the court
confirm that he or she may use medical marijuana while on
probation or release on bail.
Court must state its ruling - and the underlying reasons - on
the record.
Parolee can request that he or she be allowed to use medical
marijuana.
Written conditions of parole must reflect decision on request.
Parolee can take an administrative appeal of a denial of the
request.
Decision on the appeal must be in writing and reflect reasons
for decision.
This bill provides that no governmental, private, or any other
health care service plan or insurer shall be liable for any
claim for reimbursement for medical marijuana.
This bill prohibits a professional licensing board from taking
any disciplinary action against a licensee based solely on
conformance with the requirements of this bill.
This bill provides that records kept in accordance with this
bill are confidential and not subject to public disclosure.
This bill defines the misdemeanors listed below, punishable upon
a first conviction by imprisonment in the county jail for up to
6 months and/or a fine of up to $1,000. The maximum jail time
is increased to 1 year upon a subsequent conviction. Any person
convicted of one of these offenses may be prohibited from
obtaining or using an RIC for up to six months, in the
discretion of the court.
Fraudulent representation of a medical condition for purposes
of obtaining an RIC
Theft or fraudulent use of another person's RIC
Counterfeiting an RIC or similar conduct
Breaching confidentiality provisions of this bill
(More)
SB 420 (Vasconcellos)
PageH
This bill provides that any provision of this bill may be deemed
separate, distinct and independent.
This bill requires DHS to issue emergency regulations by July 1,
2004, and to adopt regulations no later than December 31, 2004,
for the purposes of this bill.
This bill makes findings and declarations related to the medical
use of marijuana. Generally, the bill states the intent to
clarify the Act and eliminate confusion about its
implementation, to provide for consistent implementation, to
allow reasonable access to medicinal marijuana and to address
issues that were not adequately covered by the Act.
COMMENTS
1. Need for This Bill
The author indicates the following:
SB 420 seeks to implement Proposition 215 passed in
1996 by establishing a voluntary registry
identification system for persons who are legitimate
users of medical marijuana and their primary
caregivers. The card immunizes the cardholder from
unnecessary arrest and prosecution for possession,
transportation and cultivation of marijuana for
medicinal purposes. Additionally, the bill requires
the Department of Health Services to issue regulations
determining appropriate quantity of marijuana for
possession by qualified patients.
The lack of clear guidelines for implementation of
Proposition 215 has impeded the ability of law
enforcement to consistently interpret and enforce the
law. Additionally, it has limited patients' access to
their medicine.
Author's summary of the bill:
(More)
SB 420 (Vasconcellos)
PageI
4 Establishes a registry identification card program for each
person in need of medicinal marijuana and for his/her designated
primary caregiver(s). Under the authority of the state
Department of Health Services (DHS), the county health
department would accept and process applications and decide
whether the patient is qualified for a card.
4 Clarifies existing law that a patient or primary caregiver who
is legally in possession of a photo registry card is immune from
arrest for possession, transportation, delivery, or cultivation
of medicinal marijuana.
4 Defines a qualified person as one who submits all required
identification information plus written documentation by his/her
attending physician that s/he has a serious medical condition
(defined in the bill) and the medical use of marijuana is
appropriate.
4 Requires the county health department to confirm the
attending physician has a license in good standing in California
and to verify the accuracy of the medical records submitted by
the patient.
4 Requires the county health department to issue to an approved
applicant a registry identification card (renewable annually)
that includes a unique identification number and photograph of
the cardholder.
4 Authorizes the county health department to deny a card to any
applicant who fails to provide all required information or who
falsifies any information.
4 Requires the county health department to provide information
about the cardholder to DHS, which shall make the information
available through a toll-free, 24-hour telephone number so law
enforcement can verify validity of registry cards.
4 Requires DHS to promulgate emergency science-based
regulations defining amounts of marijuana that can be legally
(More)
SB 420 (Vasconcellos)
PageJ
possessed for medicinal purposes.
4 Allows qualified persons to collectively and cooperatively
cultivate marijuana and directs DHS to promulgate regulations
that ensure the consistency and quality of medicinal marijuana
and protect against illegal diversion of the marijuana.
4 Prohibits the smoking of medicinal marijuana in any place
where smoking is prohibited, in or within 1000 feet of a school
or youth facility, on a school bus, in a vehicle that is being
operated or while operating a boat.
4 Sentences for up to one year in jail and a $1000 fine any
persons who fraudulently applies for a registry card, steals or
uses another person's card or counterfeit a card as well as any
person who breaches the confidentiality provisions of this
program.
Author's additional background:
4Attorney General Bill Lockyer convened a task force to find a
way to implement Proposition 215. This bill represents the work
product of this task force.
4 Proposition 215 urges the state to work with the federal
government to facilitate the safe and affordable distribution of
medicinal marijuana.
4 Despite the voters' strong support of medicinal marijuana, the
only efforts to provide access have been initiated by community
organizations and local governments. The only response from the
federal government so far has been to try to shut down the
providers. This was also the response from the state government
until Bill Lockyer replaced Dan Lungren as Attorney General.
4 Local providers have placed themselves at risk of civil and
criminal prosecution by courageously pursuing a variety of
distribution models. While the providers fill a vacuum created
by local government inactivity, the government continues to
avoid dealing with the distribution issue.
(More)
SB 420 (Vasconcellos)
PageK
4 Eight other states have implemented laws similar to
Proposition 215, and Alaska, Colorado, Oregon and Hawaii are
among those states that have established a registry system for
patients and caregivers.
4 Several cities and counties including San Francisco, Santa
Cruz and Humboldt have established its own registry system and
policies for enforcement as a result of the legal chaos in the
field. To date, San Francisco's program has successfully issued
several thousand identification cards to patients and
caregivers.
4 City of San Diego has voted to implement a registry modeled
after San Francisco's.
2. Controlled substance schedules Under Federal Law
Section 812 of Title 21 U.S.C., sets out the five controlled
substance schedules. Marijuana is listed in schedule I, as a
drug that is deemed to have no accepted medical use, and thus
greatest restrictions for use. The distinguishing
characteristics among the five schedules are set out, below:
? Schedule I.
The drug or other substance has a high potential
for abuse.
The drug or other substance has no currently
accepted medical use.
There is a lack of accepted safety for use of the
drug or other
substance under medical supervision.
? Schedule II.
The drug or other substance has a high potential
for abuse.
The drug or other substance has a currently
(More)
SB 420 (Vasconcellos)
PageL
accepted medical use
in treatment in the United States or a currently
accepted medical use
with severe restrictions.
Abuse of the drug or other substances may lead to
severe psychological or physical dependence.
? Schedule III.
The drug or other substance has a potential for
abuse less than the drugs or other substances in
Schedules I and II.
The drug or other substance has a currently
accepted medical use in treatment in the United
States.
Abuse of the drug or other substance may lead to
moderate or low physical dependence or high
psychological dependence.
? Schedule IV.
The drug or other substance has a low potential for
abuse relative to the drugs or other substances in
Schedule III.
The drug or other substance has a currently
accepted medical use in treatment in the United
States.
Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in Schedule
III.
? Schedule V.
The drug or other substance has a low potential for
abuse relative to the drugs or other substances in
Schedule IV.
(More)
SB 420 (Vasconcellos)
PageM
The drug or other substance has a currently
accepted medical use in treatment in the United
States.
Abuse of the drug or other substance may lead to
limited physical dependence or psychological dependence
relative to the drugs or other substances in Schedule
IV.
3. Authorization Cards for Medical Cannabis Users
This bill establishes a mechanism (RIC wallet card) which
provides a county and state-approved presumption that a PRC or
primary caregiver is not in violation of existing drug laws.
This presumption would potentially be useful in a situation
where a person is questioned by a law enforcement officer
regarding the use of marijuana. Arguably, California law
enforcement officers will benefit by reducing the time and
energy spent dealing with situations involving marijuana usage,
possession, transportation and cultivation, as the mechanism
established by this bill will provide an almost instantaneous
evaluation of whether or not a crime is being committed.
(More)
4. Argument in Support
The California Medical Association argues in support:
SB 420 (Vasconcellos) will help clarify the
implementation of Proposition 215 of 1996. SB 420 is
an agreement developed by the California Attorney
General Task Force comprised of representatives of key
stakeholder group including patients, patient
advocates, law enforcement, and medical professionals.
Voter enactment of Proposition 215 has been followed
by a degree of confusion and conflict between various
stakeholders - resulting in wasted government
resources and needles harm to many patients.
SB 420 takes a considered and rational approach toward
ending that confusion and conflict by allowing the
Dept. of Health Services to establish guidelines for
the appropriate use of medical marijuana as well as
voluntary registry program to use identification cards
for qualified patients.
A voluntary registry program will afford patients
standardized proof of their physician-recommended use of
medical marijuana;
Such a system would also enable law enforcement
officials to easily distinguish between legitimate and
illicit users of the drug; and
The system would reduce unnecessary criminal
investigation of patients and the seizure of their
medicine.
5. Argument in Opposition
The California Conference of Local Health Officers argues in
opposition
The Conference has the following concerns with the
(More)
SB 420 (Vasconcellos)
PageO
bill:
Establishing and operating a registry system
for medical marijuana is not a public health
function and public health departments should not be
diverted from their core . . . functions . . . to do
this. This bill would require the establishment of
58 individual . . . programs, many in very small
county health departments.
Regulating drugs and monitoring physician
prescribing is a medical quality issue under the
auspices of the Medical Board of California and the
State Department of Health Services Licensing and
Certification Division. Control of fraud and use of
illegal drugs is a law enforcement issue [while]
substance abuse is a public health issue. There is
little reason for 58 county health departments to
perform either of these functions.
Responsibility for this program has been
assigned to the wrong level of government and to the
wrong departments. If a registration program is
necessary, a better organizational structure would
be a simple, single, statewide program, operated by
a state agency such as the Department of Justice or
the Medical Board of California.
***************