Legislature(1999 - 2000)
05/12/1999 01:52 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 213 - MEDICAL USE OF MARIJUANA CHAIRMAN KOTT announced the first order of business is HOUSE BILL NO. 213, "An Act relating to the medical use of marijuana; and providing for an effective date." Chairman Kott noted that the next amendment before the committee would be Amendment 5. In response to Representative Croft, he confirmed that at the last hearing Amendment 4 was adopted without objection. Number 0081 REPRESENTATIVE ROKEBERG moved that the committee adopt Amendment 5 which reads as follows: Page 11, line 10, following "possess": Insert "in the aggregate" There being no objection, Amendment 5 was adopted. REPRESENTATIVE ROKEBERG moved that the committee adopt Amendment 6 which reads as follows: Page 3, line 6, following "investigation" Insert "of an individual suspected of a violation of AS 11.71. AS 17.30. or this chapter" There being no objection, Amendment 6 was adopted. The committee took a brief at-ease from 1:55 p.m. to 1:56 p.m. CHAIRMAN KOTT announced that the sponsor of Amendment 7 has withdrawn Amendment 7, labeled M2. Number 0312 REPRESENTATIVE CROFT moved to adopt Amendment 8, labeled G.13, which reads as follows: Page 5, line 8, following "marriage" Insert ". Notwithstanding this limitation, upon the written request of a patient, the department may list a person as the primary caregiver for more than one patient if (1) that listing would avoid unnecessary hardship to the patient; or (2) the patient's care is being provided in a hospice program licensed under AS 18.18" REPRESENTATIVE ROKEBERG objected for the purposes of discussion. REPRESENTATIVE CROFT explained that Amendment 8 would provide the department discretion to allow a primary caregiver to be other than a relative if under a hardship or a hospice program. REPRESENTATIVE ROKEBERG commented that there is a syntax problem in subsection 2. When hospice enters into a patient's care there can be various scenarios such as joint care. He did not mind the concept, but did not like the structure of the language which seems singular. Is the intention to allow the hospice caregiver the ability to obtain the marijuana? REPRESENTATIVE CROFT replied no. Amendment 8 speaks to the patient illustrating hardship and that he/she is being cared for in a hospice program. REPRESENTATIVE ROKEBERG indicated concern with a primary caregiver having more than one patient. Is the idea to have a professional caregiver with multiple patients? REPRESENTATIVE JAMES interjected that is like the hospice program. Number 0570 AL ZANGRI, Chief, Vital Statistics, Division of Public Health, Department of Health & Social Services (DHSS), explained that the intent with Amendment 8 is to allow a licensed hospice program to provide a primary caregiver for more than one patient in such a setting. Mr. Zangri noted that the licensing apparatus for hospice programs should preclude establishing group marijuana distributors. This is identical to the current regulations under the initiative. REPRESENTATIVE ROKEBERG inquired as to how the marijuana would be provided to a patient with a hospice program as the primary caregiver. MR. ZANGRI said that he believed, in this case, that the hospice program would be allowed to provide medical marijuana to the patients. REPRESENTATIVE ROKEBERG pointed out that would be a group. Will a blanket provision be given to do that? MR. ZANGRI explained that the individual patient has to have a card. He expected this to work such that the hospice program would be limited in its ability to possess or distribute medical marijuana to the aggregate amount of the number of ounces or number of plants that the patients under the program's care had the right to. REPRESENTATIVE ROKEBERG expressed concern that a Rastafarian group could establish a hospice program. MR. ZANGRI stressed that the Rastafarian group would have to meet the necessary qualifications. REPRESENTATIVE CROFT commented that if all qualifications are met, the nationality of the group would not be relevant. MR. ZANGRI clarified that a patient, under Amendment 8, would have to illustrate a hardship "or" that the patient is receiving hospice care, but not both. REPRESENTATIVE MURKOWSKI inquired as to what DHSS would define as "unnecessary hardship to the patient." MR. ZANGRI acknowledged that the language is currently not defined, but noted it will be defined in regulation by DHSS. Mr. Zangri said, "It's currently in regulation, but the hardship that will be looked at, in terms of each individual case, the commissioner won't be making those decisions. And we're talking about situations where you have one primary caregiver or -- a couple of patients, ..., that don't have any relatives in the area, that don't know of any source, that no way of obtaining medical marijuana and an individual says, I'll grow it for you or whatever." Mr. Zangri believed it would be extremely rare that such a hardship exemption would be granted. However, it is an option for those with no other alternative. REPRESENTATIVE MURKOWSKI asked if there is anything in the regulations that would prevent an individual acting as a primary caregiver to 26 different patients because the aforementioned requirements can be demonstrated. How can this be monitored? MR. ZANGRI stated that this would have to be a judgement call under the current structure by the commissioner. In further response to Representative Murkowski, Mr. Zangri said the department has not reviewed limiting the number of patients that one caregiver can service. He indicated that the Department of Public Safety and the Department of Law do not like this provision. Number 0999 MIKE PAULEY, Legislative Assistant to Senator Leman, Alaska State Legislature, informed the committee that he had faxed Amendment 8 to Mr. Dean Guaneli, Department of Law, who indicated that the Department of Law is opposed to Amendment 8. The Department of Law's primary concern is the maintenance of the one-to-one relationship between the patient and the primary caregiver in order to avoid those circumstances eluded to by Representative Murkowski. REPRESENTATIVE MURKOWSKI asked if discussions of the Senate's companion bill spoke to limitations on the number of patients a caregiver could serve. MR. PAULEY said this issue was discussed in earlier hearings. There is concern with Amendment 8 because, if adopted, it would also impact possession limits. In a worst case scenario, a primary caregiver serving numerous patients could have a greenhouse full of plants using the argument that each patient is allowed an aggregate of one ounce usable marijuana and six plants. REPRESENTATIVE CROFT agreed that to be a legitimate point and said that he did not mind placing an upper limit in this section with regard to how many patients one primary caregiver could serve. Representative Croft moved to amend Amendment 8 by inserting "but not more than four patients" before "if" on line 4 of the printed Amendment 8. CHAIRMAN KOTT asked if there was objection to the amendment to Amendment 8, There being no objection, the amendment to Amendment 8 was adopted. Therefore, Amendment 8 as amended would read as follows: Page 5, line 8, following "marriage" Insert ". Notwithstanding this limitation, upon the written request of a patient, the department may list a person as the primary caregiver for more than one patient but no more than four patients if (1) that listing would avoid unnecessary hardship to the patient; or (2) the patient's care is being provided in a hospice program licensed under AS 18.18" MR. PAULEY said that Senator Leman would be opposed to this amendment. Through the process of this legislation, Senator Leman has been reluctant to make changes without consensus from DHSS, the Department of Public Safety, and the Department of Law. He reiterated that the Department of Law opposed Amendment 8 in its original form. Number 1354 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, commented that the notion of limiting the number of patients a primary caregiver can serve grew out of California's experience. When one person supplies marijuana to multiple people, fairly large growing operations result. From the experience of law enforcement officials with growing operations in Alaska, Mr. Guaneli informed the committee that in small basements growing operations can net over $100,000. The average grown plant (obtained by state troopers) that has been trimmed, leaves and seeds dried, produces four ounces of marijuana which is worth a couple thousand dollars. When that potential for profit making is injected into a humanitarian/medical operation, problems ensue. Furthermore, police officers could find those with more than one ounce which could result in a dispute regarding how many patients are being cared for. Mr. Guaneli did not see a need for one person to be the supplier for a group. MR. GUANELI turned to the issue of hospice programs. There must be a distinction between a primary caregiver, which is defined in statute as someone who supplies a person with marijuana, and that person's nurse who provides care. Mr. Guaneli explained, "If a terminally ill patient in a hospice situation, is there with some marijuana in the nightstand and every four hours smokes a little bit. The person who possesses that marijuana is the patient and ... that person can legally do it. It's not the hospice worker's or the janitor, it's not anybody else. I mean, if the hospice worker takes it out the drawer and gives it to the patient, that's not illegal. ...they are not possessing it for purposes of the criminal law, they are simply assisting the patient in taking it just as they would do with if it were narcotic pain pills; and they don't have to be a licensed physician to assist the patient in taking those pills." Therefore, Mr. Guaneli did not view the hospice situation as a problem nor did he believe these changes necessary to make the program work. He viewed the changes as potentially creating some confusion with law enforcement officers and additional inappropriate amounts of marijuana. Number 1643 REPRESENTATIVE KERTTULA understood that with the registration requirements anyone listed as a caregiver would have to be registered. MR. GUANELI agreed with Representative Kerttula's understanding. REPRESENTATIVE KERTTULA suggested that it would be easier to have less people carrying the marijuana or being the caregiver. The possession would not be as spread out if one caregiver served four patients. MR. GUANELI commented that could be taken to an extreme, having one caregiver for 10 patients or one caregiver for an entire city. However, the more patients being served increases the potential for profit motivation and the situation getting out of control. REPRESENTATIVE JAMES stated that this is not our place to plan. She indicated that a caregiver serving more than one patient already seems to be allowed in the legislation. It seemed that this would be dictated by the ill person needing marijuana. MR. GUANELI expressed the need to return to the goals which was to limit the spread of marijuana with regard to who could have the marijuana and how much. Beyond those specifics, Mr. Guaneli guessed that it was up to the patient to make those arrangements. REPRESENTATIVE CROFT pointed out that although the departments have concerns that we want to try to meet, these are people with debilitating conditions. Upon a roll call vote, Representatives Croft and Kerttula voted in favor of Amendment 8 as amended and Representatives Rokeberg, James, Murkowski, and Kott voted against Amendment 8 as amended. Representative Green was not present. Therefore, Amendment 8 as amended failed to be adopted with a vote of 2-4. Number 1872 REPRESENTATIVE ROKEBERG moved the following conceptual amendment, labeled Amendment 9: Page 5, line 8, following "marriage" Insert "or a bonafide member of a hospice program licensed under AS 18.18, prior to November 1, 1998" REPRESENTATIVE ROKEBERG explained, in response to Representative Kerttula, that the November 1, 1999 date was chosen because the program had not been established prior to voter approval of the ballot initiative. Upon review of AS 18.18 regarding licensure of hospice programs, Representative Rokeberg felt that it would be relatively easy to establish a marijuana club under the current licensing law. Representative Rokeberg commented that he is a strong supporter of hospice programs. REPRESENTATIVE MURKOWSKI objected for discussional purposes. REPRESENTATIVE ROKEBERG informed the committee that in statute there is a standard hospice program and a volunteer hospice program which has lower limits for membership. Therefore, he believed that current statutes could allow the establishment of a hospice program of the aforementioned problematic type. REPRESENTATIVE JAMES indicated that this legislation is getting more complicated. She asked if a caregiver referred to only providing the marijuana or would other services be provided for the patient. She was confused as to why a patient would need hospice services unless the patient is receiving other hospice services besides the receipt of marijuana. Number 2083 DAVID FINKELSTEIN, Alaskans for Medical Marijuana, said that the amendment is great, although it is only a small portion of what was originally intended. He noted that the original intention, "was that anyone could end up with more than one patient per caregiver..." Therefore, any improvement is welcomed. REPRESENTATIVE JAMES inquired as to how many people a hospice person could serve marijuana. MR. FINKELSTEIN stated that he was not very familiar with hospice programs. He believed that limiting availability to pre-existing hospices would eliminate the possibility of abuse. He reminded the committee that these patients will be in a set circumstance. REPRESENTATIVE ROKEBERG informed the committee that in Anchorage there are very large inter-disciplinary teams that operate under hospice. However, there is generally only one or two registered nurses on duty, who are licensed to administer pain medications. Therefore, there would be a limited number of people to administer a drug such as morphine. REPRESENTATIVE MURKOWSKI returned to Mr. Guaneli's comments that the caregiver's role is to provide the patient with marijuana. Therefore, we are placing the hospice in a situation of being a grower and a supplier with which she is not comfortable. She believed placing the hospice program in the situation of being the supplier is problematic. REPRESENTATIVE ROKEBERG stressed that the hospice program would not be growing the marijuana. The hospice program would merely be the conduit for the administration of the marijuana. Representative Rokeberg commented that the hospice program usually only comes into play during the last few days of a person's life. He envisioned the primary caregiver giving the marijuana to the nurse. The issue of possession should be addressed in order to provide the hospice program comfort with regard to handling marijuana. The hospice program should be provided some statutory relief from handling the marijuana. REPRESENTATIVE MURKOWSKI said that Representative Rokeberg's amendment does not seem to achieve his intent. CHAIRMAN KOTT asked if there was further objection to Amendment 9. REPRESENTATIVES JAMES and MURKOWSKI objected. Upon a roll call vote, Representatives Rokeberg, Croft, and Kerttula voted in favor of the adoption of Amendment 9 and Representatives James, Murkowski, and Kott voted against the adoption of Amendment 9. Representative Green was not present. Therefore, Amendment 9 failed to be adopted with a vote of 3-3. Number 2369 REPRESENTATIVE CROFT moved that the committee adopt Amendment 10, labeled G.11, which reads as follows: Page 11, line 7, following "except that": Insert "(A)" Page 11, line 9, following "," Insert "and "(B) if the patient does not receive any compensation in any form in exchange for the marijuana, a patient may give marijuana to another patient who is registered under AS 17.37.010 and who is in physical possession of a registry identification card;" CHAIRMAN KOTT objected for purposes of discussion. REPRESENTATIVE CROFT explained that Amendment 10 would allow one patient to give marijuana to another patient who physically possesses a registry identification card. MR. GUANELI reminded the committee that a person is prohibited from smoking marijuana in a place open to the general public, so a person could smoke marijuana in an Elk's Club, a private club. Therefore, Mr. Guaneli said that patients could form their own private club and under this provision, patients could give marijuana to other patients. He likened this to the marijuana clubs that sprang up in California which is the danger. If that were to happen, law enforcement officials probably cannot do much beyond obtaining a search warrant to enter the club. The proposed provision would allow the use of marijuana in a club setting which would again create the danger of someone profiting from marijuana. TAPE 99-66, SIDE B REPRESENTATIVE CROFT noted that the language addressed providing marijuana without compensation. He inquired as to how that would expand the places or context in which a person could use marijuana. MR. GUANELI reiterated that combining the two provisions results in the ability to create a private club where marijuana can be used and marijuana can be exchanged. He did not believe that to be the purpose of the initiative which he thought was to allow the private use of marijuana for those needing it for medical purposes, but not in a collective group setting. REPRESENTATIVE ROKEBERG commented that this is a fox-hole amendment to which he is opposed. CHAIRMAN KOTT asked, "Would this mean that if one were suffering from excruciating pain, and you had a neighbor who was also in the same state, ... the neighbor came over. They're both card carrying, registered members to use marijuana that the person -- either one of those individuals then couldn't give to the other?" Number 0103 MR. GUANELI said that he believed the statutory scheme established in this bill requires that a person be listed as a primary caregiver for someone else, that is the mechanism. If patients are allowed to freely give marijuana, then the number of people who can supply marijuana is greatly expanded. Mr. Guaneli thought the intent was to limit the scope or at least have it clear in the registry who is giving marijuana to whom. Under Chairman Kott's scenario, the neighbor could be designated as the primary or alternate caregiver for purposes of supplying marijuana. REPRESENTATIVE JAMES asked then if the neighbor was a patient and a caregiver, could that patient possess two ounces and 12 plants of which six could be flowering. MR. GUANELI said that he believed that would be the result with cross-designation as a patient and a caregiver. He agreed with Chairman Kott that would be under the current statutory scheme. Perhaps, that is a problem that needs to be addressed. Upon a roll call vote, Representatives Croft and Kerttula voted in favor of the adoption of Amendment 10 and Representatives Rokeberg, James, Murkowski, and Kott voted against the adoption of Amendment 10. Therefore, Amendment 10 failed to be adopted by a vote of 2-4. Number 0228 REPRESENTATIVE CROFT moved that the committee adopt Amendment 11, labeled G.12 which reads as follows: Page 1, line 5: Delete "Affirmative defense" Insert "Defense" Page 1, line 9: Delete "an affirmative" Insert "a" Page 8, line 14: Delete "an affirmative" Insert "a" CHAIRMAN KOTT objected. REPRESENTATIVE CROFT explained that a distinction in the law is between a defense and an affirmative defense; under one the individual must prove while the other the state has to prove against the individual. Amendment 11 changes the affirmative defense to a defense. Although this sounds minimal, it is a big difference that is an important principle of criminal justice. With regard to those stating their belief as to the intent, only those who passed the initiative really know the intent. Originally, it was clear that this was something the government had to prove against an individual. CHAIRMAN KOTT withdrew his objection. MR. PAULEY expressed Senator Leman's opposition to Amendment 11 which is viewed as a drastic departure from the current structure of the bill. The intent of the affirmative defense provisions was to follow the model of Alaska's concealed carry permit law. Mr. Pauley distributed copies of that law which provides an affirmative defense. In talking with owners of firearms and law enforcement, it is apparent that this process has worked well. It is difficult for Senator Leman to understand how it would work differently under the medical marijuana registry. Number 0431 GERALD LUCKHAUPT, Attorney, Legislative Counsel, Legislative Legal and Research Services, Alaska State Legislature, agreed with Representative Croft's explanation of Amendment 11. Under an affirmative defense, once evidence is placed on that subject the burden falls on the defendant to establish that by a preponderance of the evidence. However, with a defense, once some evidence is placed to support the defense the burden falls on the prosecution to disprove that beyond a reasonable doubt. He noted that information in the possession of the defendant sometimes involves information that could be privileged. Traditionally, legislatures place the burden for defense, involving such evidence, upon the defendant. If the evidence can be proven, it would constitute a complete defense to the charge. The information here seems to fit some of those criteria in that it must be proven that the person has been diagnosed by a doctor to have a debilitating medical condition. That information could be considered privileged. Mr. Luckhaupt noted that the legislature has not used defenses often; there have only be a few limited cases. For the most part, when a defense is provided it has been an affirmative defense. MR. LUCKHAUPT commented that the initiative is a bit confusing. He pointed out that the initiative in Section 17.37.030(a) says that no person may be convicted for medical use of marijuana when the listed criteria are proven by a preponderance of the evidence. That appears to be a sort of affirmative defense due to the language, "proved by a preponderance of the evidence", which would mean that it is not necessarily placed on the prosecution who is required to prove elements of crimes beyond a reasonable doubt. Perhaps, that was a mistake and the intention was to place the burden on the prosecution. However, there are conflicting provisions in the initiative as the next provision, subsection (b) provides immunity. Mr. Luckhaupt agreed with Mr. Pauley's earlier statement that when the legislature has acted in similar areas, the legislature has provided the defense as an affirmative defense. Number 0703 REPRESENTATIVE KERTTULA recognized that the initiative does seem to include immunity in Section 17.37.030(b). She asked if that was the conflict to which Mr. Luckhaupt just referred. MR. LUCKHAUPT replied yes. He believed that was an incentive to get people to register so as to have complete immunity. REPRESENTATIVE KERTTULA understood that the legislation, as it is, would eliminate immunity and maintain the affirmative defense; is that correct? MR. LUCKHAUPT explained that the legislation currently provides for mandatory registration and an affirmative defense is provided instead of immunity. REPRESENTATIVE ROKEBERG pointed out that proven by a preponderance of the evidence is also used in Section 17.37.020 of the initiative and therefore, would provide an affirmative defense in regard to quantities of marijuana. REPRESENTATIVE KERTTULA noted that the initiative had an affirmative defense for possession of marijuana in excess of the amount established which she was not sure has been maintained in the legislation. REPRESENTATIVE CROFT indicated that Amendment 12 would address that concern. Number 0824 MR. FINKELSTEIN emphasized that the initiative clearly says that if a person registers with the state and meets the other conditions, that person would not be subject to arrest. According to testimony to date, that would mean that the burden of proof falls on the prosecution. The initiative includes a fall-back provision for persons who do not register with the state. Such individuals are not provided as much protection and the burden of proof lies with that individual, an affirmative defense. The comments that the affirmative defense is only about those who carry the card is not correct because Section 1 of the legislation references the entire legislation. He said, "The burden of proof under number (3), at the top of the page 2, applies to the entire bill .... The burden of proof will be on the patient to show they complied with the requirements of [AS] 17.37 as it applies to use in public which, of course, that's obviously a case where it ought to be the prosecution's burden. The patient can't show that they didn't use it in public. It's the kind of issue where if the prosecution can show it, they have a witness showing it. The patient can't show that all their use was within the one ounce limit other than just stating it. The prosecution can; they can say they found over an ounce. These are just classic provisions that fit the way, I certainly understand our legally system: you're innocent until you're proven guilty and the prosecution needs to make the case. ... I understand the arguments on mandatory registration, but if you're going to go to that and you're going to preclude all these other folks who might not do it, you certainly want them to sign up. And if you want them to sign up, it's better to give them at least the standard that the prosecution has to make the case, not the patient. I just think that's a minimum to expect, if people are going to sign up with the state. Again, it isn't just the intent of the initiative, the initiative's actual language states that you get that protection when you sign up with the state." REPRESENTATIVE ROKEBERG inquired as to the location of the burden of proof in the initiative. MR. FINKELSTEIN said it is located in Section 17.37.030(b). REPRESENTATIVE ROKEBERG recognized that as the immunity clause to which Mr. Luckhaupt spoke. REPRESENTATIVE CROFT posed an example in which the police allege that an individual was smoking marijuana in public; it must be proven that the individual was smoking marijuana in public. If the individual is charged with use of medical marijuana in public and the defense nor the prosecution says anything, the individual has not proven by a preponderance of the evidence that he/she was not smoking medical marijuana in public. Representative Croft emphasized that it should be the burden of the state which is the reasoning behind Amendment 11. REPRESENTATIVE ROKEBERG inquired as to how that would work, practically. Number 1050 MR. GUANELI echoed Mr. Pauley's comments that the affirmative defense with concealed handguns has worked which is the case in other provisions as well. Alaska's drug offenses specify that it isn't necessary for the state to negate any exemption or exception, but rather the defendant has the burden to prove beyond a preponderance of the evidence any exemption or exception claimed. If an officer sees a bottle of pills in someone's purse, that person could, technically, be charged with an offense. Furthermore, that individual would have an affirmative defense, under current Alaska law, to prove that the individual has a prescription for the pills. This particular provision has existed in Alaska law since 1982. Mr. Guaneli believed that the intent of the legislation was to bring the medical marijuana provisions into conformity with other provisions of Alaska law that dealt with individuals having prescriptions, recommendations, et cetera from doctors for controlled substances. Regardless of the intent and language of the initiative, the legislation intends to be consistent with Alaska's drug laws. MR. GUANELI posed the example in which an officer stops an individual who claims to be an alternate caregiver. The officer requests the individual's card to which the individual does not respond. At trial, the state would be required, per the amendment, to prove that the individual did not have a card. Mr. Guaneli was not certain how that could be accomplished. Under the legislation, the individual would have to prove that he/she did possess the card which would be in the individual's power to prove. REPRESENTATIVE CROFT asked Mr. Guaneli if he had a debilitating condition as defined by this. MR. GUANELI replied no. REPRESENTATIVE CROFT recalled that Mr. Guaneli said that it would have to be proven that the individual did not have the card on them. However, page 1, line 11 of the legislation says, "the patient was registered" which would seem to indicate that it would be as easy as reviewing the registration. MR. GUANELI specified that his example was in reference to an alternate primary caregiver, a person that must have the card. He said that affirmative defenses set out specific criteria for people to follow in order for them to be covered. These are guidelines for conduct which is how it works for the concealed handgun law. REPRESENTATIVE KERTTULA expressed concern that moving away from immunity completely would also move away from the original initiative. She asked if immunity and affirmative defense are two completely separate items under criminal law. MR. GUANELI answered that is correct, but noted that the legislature has the authority to amend initiatives as long as the basic thrust and purpose of the initiative remains. The legislature has broad discretion to change some of the policy choices of the voters. REPRESENTATIVE KERTTULA surmised, under the current legislation which requires registration, that immunity for a registered individual would not be allowed. That individual would have to utilize the affirmative defense. MR. GUANELI agreed, but noted the practical use of the concealed handgun law under which officers view an individual's concealed handgun permit and let the individual proceed. He indicated that in reality, an officer would ask if an individual is registered which would be checked on the DHSS computer system and if listed, the individual would be left to go on their way. Mr. Guaneli believed that the cases that would be prosecuted would be those in which individuals are abusing the system. In his view, it would be fair to place the burden of proof on such an individual. Number 1404 REPRESENTATIVE ROKEBERG expressed concern with the practical application of this. He posed a situation in which a registered individual was outside smoking marijuana and an officer arrived and inquired as to whether the individual was registered, but the individual had forgotten his/her card. Would the officer check the DHSS list? MR. GUANELI indicated that would be the practical impact. He believed that it's the intent of DHSS to have that list available to police officers to receive an immediate answer, although he was unaware as to how that would work technically. REPRESENTATIVE ROKEBERG posed the same situation, but the individual being reviewed was the caregiver. MR. GUANELI responded that the registry would be checked for the caregiver's name as well as the patient's name. However, the card would be necessary because there could be an alternate caregiver. REPRESENTATIVE JAMES pointed out that the caregiver would not be smoking the marijuana. REPRESENTATIVE ROKEBERG clarified that the caregiver would be in possession of the marijuana. He commented that the police officer will be doing a field affirmative defense type of routine. MR. GUANELI said he believed that to be true, in a way. It will not be a problem, if the individual provides valid information that checks out. REPRESENTATIVE KERTTULA stated that with an affirmative defense, she believed one would err on the other side which was not the intent of the initiative. MR. GUANELI responded that he did not believe such a history of riding rough-shot over people's rights exists in Alaska. This should be tried out; it has been designed to work and will work. REPRESENTATIVE CROFT emphasized that the legislation is a drastic departure from the initiative and Amendment 11 is a drastic departure back toward the initiative. The amendment is more analogous to immunity than the current legislation. More justice is accomplished by returning the legislation to reflect the people's will. CHAIRMAN KOTT reminded the committee that the motion before it was the adoption of Amendment 11. Upon a roll call vote, Representatives Croft, Kerttula, and Kott voted in favor of the adoption of Amendment 11 and Representatives Rokeberg, James, and Murkowski voted against the adoption of Amendment 11. Representative Green was not present. Therefore, Amendment 11 failed to be adopted by a vote of 3-3. Number 1808 REPRESENTATIVE CROFT moved that the committee adopt Amendment 12 which reads: Page 12, line 1, after "bus" Insert "(e) For quantities of marijuana in excess of the amounts in (a)(4) of the section, a patient or his or her primary care-giver must prove by a preponderance of the evidence that any greater amount was medically justified to address the patient's debilitating medical condition." CHAIRMAN KOTT objected. REPRESENTATIVE CROFT explained that Amendment 12 would restore the initiative's language which would allow the possession of more medical marijuana than the specified limit if there is a proven medical need for more. The language is clear that it is the patient's burden and that it must be medically justified. He pointed out that the committee has only had one person testify as to the amount of marijuana that individual needed which was more than the allowable amount. Furthermore, the farther away an individual lives from an urban area the more reasonable for that individual to possess more marijuana. REPRESENTATIVE MURKOWSKI inquired as to what "medically justified" would entail. One of the benefits to medical marijuana, as has been discussed, is that it allows the patient to self-dose. Would that language entail a doctor's recommendation for dosage? She indicated that a doctor would be unlikely to recommend dosage. REPRESENTATIVE CROFT suggested on page 4, a paragraph (D) could be inserted to require in the original application, if one requires in excess of the allowable amount, to specify why more is necessary and what amount would be necessary. He acknowledged that the administrative concern is legitimate. He said that he was willing to craft language to speak to this concern. REPRESENTATIVE MURKOWSKI commented that this is the problem with marijuana which has different THC contents and patients with different needs. She reiterated that she did not know if a doctor would commit to such a recommendation. REPRESENTATIVE CROFT stressed that an individual could receive a month's supply of codeine and would not be second-guessed at all due to a continuous condition. Furthermore, having such an individual have to refill their prescription every 10 days is almost punitive. The Department of Public Safety will not second-guess that individual's ability to receive a month or two months worth of codeine. However, that individual can only receive a 10 day supply for marijuana, a drug that works better for that individual. Why are these people being made to jump through such hoops? REPRESENTATIVE KERTTULA commented that more activity will be created if one is required to come in every 10 days. TAPE 99-67, SIDE A REPRESENTATIVE KERTTULA noted a case in Florida in which an individual went to court with her doctor and expert testimony. The judge ruled in that individual's favor. So, there is precedence for proving, under our law, an affirmative defense. Number 0064 DEL SMITH, Deputy Commissioner, Department of Public Safety, stressed that it is not up to him to determine the amount of marijuana that someone would need. However, it is up to him and those that work for him to determine how much someone can possess in a street situation. He emphasized the need to set an amount that is not open-ended. This is open-ended. From the beginning law enforcement has wanted the following: "How much can you have, are you registered, and who is your primary caregiver?" Mr. Smith commented that if an individual has more than an ounce and six plants, then the individual will be charged unless another limit is established. Officers need guidance in order to be able to apply this law and not tie up the courts. CHAIRMAN KOTT asked if it is problematic for an individual to be able, by a preponderance of the evidence, to carry more. MR. SMITH agreed that is problematic. It cannot be determined whether the marijuana is medically justified on the weekend or in the middle of the night. He assumed that it will be decided in an affirmative defense or hearing. He reiterated that an officer will not make a decision as to whether a person possessing in excess of the limit is medically justified in doing so, that individual will be charged. It is too vague. Number 0339 REPRESENTATIVE CROFT indicated that it may be appropriate to arrest someone that has in excess of the limit, but the question is now does that individual go to jail and spend a year in jail. Under Amendment 12, that individual would have the ability to prove before a judge that he/she should not be held in jail for a year and this is why it is medically necessary. REPRESENTATIVE CROFT pointed out that it becomes more and more problematic as individuals attempt to obtain marijuana for this use. He suggested that it would be easier for everyone, if these individuals could stay at home and grow an appropriate amount for their use. He discussed scenarios in which an individual could end up with more marijuana than specified thus far. Representative Croft emphasized that if more certification is desired that could be placed in the registry. REPRESENTATIVE JAMES inquired as to where the limitation in amount of one ounce and six plants, of which three could be flowering was drawn. MR. FINKELSTEIN answered that the amount came from the initiative. REPRESENTATIVE JAMES said she thought the goal was to keep the initiative as it was. REPRESENTATIVE CROFT interjected that Amendment 12 would return the legislation to the initiative with that exception. He believed that a low level of possession was chosen, knowing that there was an ability to prove the need for more marijuana. The legislation maintained the low level of possession, but eliminated the ability to prove the need for more marijuana. CHAIRMAN KOTT asked if there was further discussion or objection to Amendment 12. REPRESENTATIVE MURKOWSKI maintained her objection. Upon a roll call vote, Representatives Croft and Kerttula voted in favor of the adoption of Amendment 12 and Representatives James, Murkowski, and Kott voted against the adoption of Amendment 12. Representatives Green and Rokeberg were not present. Therefore, Amendment 12 failed to be adopted by a vote of 2-3. Number 0774 REPRESENTATIVE JAMES moved to report HB 213 as amended out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE CROFT objected. He stated that the last amendment is the heart of the problem with this. All the departments have testified as to the convenience of this law with respect to their duties, but this legislation is forgetting the medical needs of those involved. Representative Croft expressed concern that although the establishment of a "bright line" would make it easier for law enforcement, it will not meet the proven medical needs of some people. CHAIRMAN KOTT agreed and indicated the need to come up with a specific amount. REPRESENTATIVE JAMES agreed with some of Representative Croft's concerns, but did not believe Amendment 12 achieved what was desired. She commented that she did not know how much marijuana costs and furthermore, she was not convinced that everyone using it will be growing it. Perhaps, the cost would be prohibitive to having more than the specified amount. Representative James stressed that the general underlying principle of the initiative was good, but problems were created. REPRESENTATIVE MURKOWSKI reminded the committee that marijuana is nothing more than a weed which can vary tremendously. She indicated the need for the Federal Drug Administration to do research as that being done in the demonstration project in Mississippi so that it is clear how much is enough which would provide some control over this. "I don't think that we can sit here and try to give the accommodation not only to the patients to address their needs, but to also recognize that you are still dealing with a controlled substance and that law enforcement needs some guidelines. I think we've done as good a job as we can do with what we've got right here." She believed the committee made the appropriate decision with Amendment 12. CHAIRMAN KOTT commented that he didn't disagree with Representative Murkowski's comments. He agreed with her comment regarding the variance in marijuana, specifically the strengths. Chairman Kott announced that he would be willing to work on an amendment with Representative Croft regarding the last issue. Upon a roll call vote, Representatives James, Murkowski, and Kott voted in favor of reporting HB 213 as amended from committee and Representatives Croft and Kerttula voted against reporting HB 213 as amended from committee. Representatives Green and Rokeberg were not present. Therefore, HB 213 as amended failed to be reported from committee. CHAIRMAN KOTT adjourned the meeting to the call of the chair at 3:48 p.m TAPE 99-68, SIDE A CHAIRMAN KOTT called the meeting back to order at 5:27 p.m. Representatives Kott, Murkowski, Green and Rokeberg were present.
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