Legislature(1999 - 2000)
04/28/1999 01:36 PM Senate HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 94-MEDICAL USE OF MARIJUANA
TAPE 99-21, SIDE B
Number 280
MR. MIKE PAULEY, Staff Aide to Senator Leman, offered to defer his
comments and requested the Chairman accommodate the people holding
on-line.
MR. DUANE UDLAND, Anchorage Chief of Police, called in from Chicago
and said Senator Leman deserves thanks for bringing this bill
forward. Two issues are important to police chiefs: (1) mandatory
registration of the patient and the primary care giver with
restriction on how many patients a primary care giver can serve, to
avoid becoming a local dealer; and (2) the definition of how much
marijuana can be possessed under this law; two ounces or 6 plants
is too broad and needs work. The police don't want to arrest
people who have the medical marijuana exception, or deal with the
same problems that California has developed.
MR. "SCOOTER" JAMES WELCH, Chief Law Enforcement Officer for
Fairbanks Police Department, said enforcement's concern is to
strike a balance between compassion and legitimizing a narrow field
of what is an illegal activity. One plant can yield a pound of
marijuana selling for $4500, and can be harvested 3 times a year.
Six plants could be big business, producing an $80,000 per year
income. There must be some way to regulate, and the existing
legislation is too broad. Similarly, pharmaceutical cocaine is
available for legitimate medical purposes or you can buy street
cocaine, with a vast difference between the two products. Law
enforcement doesn't want to overlook the voters of the state but,
MR. WELCH said, the legislation needs some changes.
Number 180
MR. DEAN GUANELI, Chief Assistant Attorney General in the Criminal
Division of Department of Law, said the voters have spoken for the
medical use of marijuana. The administration wants to make the
initiative work, but it must be changed because it has technical
and serious substantive problems.
The initiative allows registered patients to sell to other
registered patients, or to anyone if it's not known for certain
that the person is not entitled to use marijuana. After
California's initiative passed, marijuana clubs with memberships
sprang up, and open buying and smoking. The club owners' defense
was that they were the primary care givers. The profits of the
largest club in San Francisco were $1 million a month until it was
shut down by the state. The state was able to shut it down because
there wasn't anything specific in their law allowing marijuana
clubs. In Alaska, there is something specific allowing a registered
patient to do that.
The initiative states a registered patient can't use marijuana in
public but registration is not required to use it, so if you're not
a registered patient and simply use it, you can use marijuana in
public. This raises the question of constitutionality.
MR. GUANELI said it creates a strong argument that it is not
constitutional in treating two similarly situated people
differently for no apparent reason and it is likely to be struck
down. Arguably, anyone can use medical marijuana in public.
A tricky provision in the initiative states that if a person uses
marijuana for medical purposes, it is not a controlled substance.
Almost all prescription drugs are controlled substances with state
and federal controls. If a person uses medical marijuana for pain
or nausea and gets very stoned and drives a car, that's okay
because the driving while intoxicated law states you're guilty of
that crime if you're under the influence of alcohol or a controlled
substance. Medical marijuana is not a controlled substance, and
therefore you can't be punished for driving under the influence. A
specific provision in the initiative says the registration card can
be taken away for one year. Since you don't have to be registered
to use marijuana, it has no effective penalty.
There is a problem with the amount of marijuana that can be used.
One ounce plus six plants can be a lot of marijuana. The average
amount from a mature plant is about 4 ounces of usable, dried
marijuana. The average of usable marijuana, from seedlings to
mature plants, is about 1 ounce. Mr. Guaneli gave an example of
how, under the initiative, a person could possess up to one pound
of marijuana. The initiative goes further and allows using more if
you can prove that it's justified.
The initiative puts many restrictions on law enforcement officials
in terms of search and seizure and forfeiture, by placing marijuana
in a separate category from other drugs or prescription drugs. When
police officers take some of this property, they have to preserve
it and water the plants. If for some technical search and seizure
reason the case gets thrown out of court, the police have to give
the property back. It is completely different from any other
provision in law, and DOL believes it is not appropriate.
Senator Leman's bill corrects a number of these problems. It makes
registration mandatory which addresses the practical problem for
law enforcement officers regarding arrest or release for legitimate
use. It changes the law so that marijuana, for medical purposes or
not, is a controlled substance. Finally, it ensures there is one
care giver for one patient, to avoid the problems arising in
California.
Number 058
CHAIRMAN MILLER commented that, as a business owner, he does not
allow cigarette smoking in his store. If the initiative were left
intact, he asked if someone smoking medical marijuana in his store
could be treated differently than someone smoking a cigarette.
Could he ask them to leave his store, or would that violate the
law?
MR. GUANELI replied there is a provision that nothing in the
initiative shall require the accommodation of medical use of
marijuana in any place of employment. Arguably, restrictions could
be placed.
CHAIRMAN MILLER asked if that applies to employees or to customers.
MR. GUANELI said you could restrict customers because it would
bother employees. On the other hand, with the Americans with
Disabilities Act, there might be an argument that because state law
allows a certain substance to be used, it might be a kind of
discrimination against someone with a disability. This question
presents a potential problem.
MR. GUANELI said that Senator Leman's Sponsor Substitute takes care
of a number of the problems he mentioned, and there are a number
that it does not address. Amendments have been prepared and he
offered to explain them.
CHAIRMAN MILLER asked if he has seen Mr. Luckhaupt's draft
amendments that put Mr. Guaneli's amendments into legislative
language. He replied that he had, and they cover all of the topics
suggested by the administration with the exception of the last one
which is still being drafted.
TAPE 99-22, SIDE A
Number 001
CHAIRMAN MILLER stated his intent to take public testimony today
and discuss the Sponsor Substitute and the amendments prepared for
it.
SENATOR ELTON questioned Mr. Guaneli about his description of "two
people similarly situated," one under the authority of a physician
who can use marijuana in public and someone like himself who
wouldn't be able to use it publicly. MR. GUANELI clarified that he
meant a registered user with a physician's recommendation, and an
unregistered user who has a physician's recommendation but who has
chosen not to register, to use it and run the risk of arrest.
CHAIRMAN MILLER asked, if the committee moves the amendments
proposed by DOL and Public Safety as the vehicle and it passes the
legislature with no major changes, would the administration support
these changes to SB 94 and would Mr. Guaneli recommend that the
Governor sign the bill.
MR. GUANELI said the departments are in consensus that these are
appropriate amendments. They have discussed them with Pat
Pourchot, the Governor's legislative liaison, and are prepared to
support this bill as amended.
Number 048
MR. DEL SMITH, Deputy Commissioner of the Department of Public
Safety, echoed the comments of Chief Udland and Chief Welch and
spoke for mandatory registration. The department's concern is not
to figure out whether people ought to have marijuana, because
obviously that's the case. He said mandatory registration with a
card, or computer verification of medical use with the DHSS would
be preferable to seizing marijuana from someone who later turned
out to have a doctor's note. The possession issue and the amount
must be clearly delineated for the officer on the street.
Number 082
MR. ELMER LINDSTROM, Special Assistant to Commissioner Perdue,
Department of Health & Social Services, said the department has a
somewhat different perspective. Law enforcement notified DHSS of
enforcement concerns shortly after the initiative passed, and DHSS
would defer to those concerns. However, its difficulty is to craft
a solution that doesn't make administration of the program
impossible or difficult, or that is inappropriately intrusive of
the patient/physician relationship and violates the standard
practice of medicine in this state.
With these amendments, the department would not be opposed to the
legislation. He pointed out the DHSS 4/27/99 fiscal note totaling
$87,700. DHSS had an increment in the House and Senate Finance
Committees to operate its registry under the initiative as it was
passed, but unfortunately it was not approved by either committee.
Without the resource and despite the best efforts to improve the
legislation, the department would not be able to get information to
law enforcement in a timely manner. Under the registry system, a
patrolman could call in from the street to the DHSS dispatcher and
find out immediately if a person was a patient or a registered care
giver. If these amendments were approved by the committee, MR.
LINDSTROM said the fiscal note would be reduced by about $30,000.
MR. SMITH agreed with Mr. Lindstrom that law enforcement would need
to know in the middle of the night, not at 8:00 when personnel come
in to work.
Number 120
CHAIRMAN MILLER said although he did not support the initiative the
intent of the committee is to make the program work. The
initiative was supported by the voters so the program must be made
to work for law enforcement and the folks who truly have a
legitimate medical need for the substance. He thanked the
departments for their time and effort. He said his intent is to
bring back the Committee Substitute on Monday, which would
essentially be their amendments.
Number 140
MR. MATTHEW FAGNANI stated he is President of Work Safe Inc., the
largest drug and alcohol testing business in the state, providing
testing to 2500 private businesses and public sector organizations.
Its objective is to improve workplace safety and reduce customers'
exposure to liability from employees' illegal drug use. He spoke
to the potential workplace impacts of the marijuana initiative,
saying numerous loopholes in the language provide for ample abuse
of the law. Senator Leman has corrected some of these, and Mr.
Fagnani supported the administration's amendments as well. He
supported further revising the definition of "debilitating medical
condition" because the current broad definition would potentially
enable persons with certain conditions to obtain a recommendation
for use and be in the workplace. He suggested incorporating the
requirement of a three-physician panel to review the decision of
the physician and ensure that other means of alleviating pain have
been explored. Also of concern is the loophole allowing patients of
primary care givers to sell or distribute marijuana to each other.
He said marijuana is especially dangerous in the workplace because
it impairs coordination and judgment, making it a major cause of
accidents. Use of it off the job causes residual effects. The
Alaska Human Rights Commission has informally indicated they will
view a medical recommendation for marijuana the same as a
legitimate prescription for other drugs. Employers will have to
make reasonable accommodations in the workplace even though the
federal Americans with Disabilities Act does not recognize use of
medical marijuana as a disability. Although the statute does not
require accommodation in the workplace, it also does not prohibit
it.
Number 244
DR. ANDREW EMBICK, a physician in private practice in Valdez, spoke
in opposition to SB 94. He said he is neither an expert on
marijuana nor on the legal system, but the "replacement bill
creates an impossible standard which cannot come even close to
being met by physicians," because it requires that marijuana used
medically be the only therapeutic modality in use, rather than one
among a number of useful treatments. This is his primary
objection. If it is so dangerous, he asked, why in twenty years
has he never run into anyone with a medical problem from it?
Number 303
MR. DAVID FINKELSTEIN of Alaskans for Medical Rights (AMR) stated a
recent national Gallup Poll indicated 73% of Americans support the
medical use of marijuana at this time. He thanked Senator Leman for
the improvements in his Sponsor Substitute to SB 94 that addressed
his group's concerns.
He stated the AMR believes the legislation is not necessary. The
AMR doesn't disagree with the goals of law enforcement, and also
wants a law that is easily enforced. The interpretation of minor
drafting errors should be dealt with through regulations or in the
Revisor's Bill. The standards involved allow for these kinds of
regulations. Regulations for the registration system won't be in
place until this summer. He said he doesn't foresee any
significant problems occurring from the implementation of this
bill, but if there are, these could be addressed next session.
Mr. Finkelstein would discuss their major concerns with the Sponsor
Substitute that fall into nine areas, and said he wouldn't address
the amendments from the administration today.
A concern is the elimination of protection from arrest. It's an
affirmative defense and it's not appropriate when a person gets a
doctor's recommendation, applies to the state and meets all the
other requirements.
Another concern is access to the list by law enforcement agencies.
The SS adds "in the course of a criminal investigation or
prosecution" and this provision will significantly discourage
people from signing up on the list.
An additional concern is mandatory registration. To avoid arrest,
you must be registered with the state. There will be situations
where people aren't registered although they have complied with all
the other requirements, and they could be convicted. Future
administrations may not support the registration system.
The letter from 19 doctors indicates no additional requirements
are necessary. Adding standards for the doctor will make it much
harder for them to make recommendations for legitimate patients.
Doctors must be allowed to make their own judgments. He referred to
AS 08.64.101 which allows for review of doctors, various reprimand
levels or elimination of their license.
The provision in AS 17.37.010 states the recommendation of the
doctor would specify the nature of the patient's condition. If
that is added, MR. FINKELSTEIN said he doubts many patients would
ever register with the state. Records including details of their
medical history is completely inappropriate and would lead to a
system unintended in the initiative.
A concern is the protection given to doctors. In the initiative,
doctors are protected from prosecution if making a recommendation
is based on a legitimate doctor-patient relationship. The language
in the SS gives doctors legal protection when they also base it on
other approved treatments. That higher standard and the complexity
involved is a discouraging factor, because it's unclear that the
doctor will be protected by law if he is making a legitimate
attempt to address the medical needs of the patient. This
protection shouldn't be conditional.
SENATOR WILKEN asked if he is looking at Version I.
MR. FINKELSTEIN said yes, and referred to page 9, line 15.
SENATOR WILKEN asked him to repeat his testimony.
MR. FINKELSTEIN said that subsection (A) is basic, that a physician
should not be penalized for making these diagnoses based upon
assessment of the patient's medical history and condition, and in
the context of a bona fide patient-doctor relationship. The
Sponsor Substitute adds that the recommendation is also based on
other approved medications and treatments. While that may be
legitimate, would the doctor have legal protection if he
inaccurately interpreted or applied subsection (B). It would
discourage any doctor from even touching the subject, and to
prosecute a doctor for misinterpretation of this section would be
unfair.
Another concern relates to one patient per care giver. The
concerns expressed by law enforcement are reasonable. Draft
regulations would limit one person per care giver except for
Hospice situations or where people apply to the state. The AMR
thinks there are others such as family members who should also be
covered, which is partially addressed in the Sponsor Substitute. He
said this kind of detail can be handled in the regulations.
An additional concern relates to the approach on excess amount.
The way the law is written, if you have more than an ounce or 6
plants, 3 of which are mature plants, then you're subject to
arrest. There are cases where patients legitimately need more than
an ounce and it's not easy to obtain it.
MR. FINKELSTEIN concluded with a final concern regarding the way
doctors are treated and the standards for what is a bona fide
doctor-patient relationship.
Number 492
CHAIRMAN MILLER announced the committee would recess and reconvene
at 6:00 p.m. Depending on how many people want to testify on SB
94, a time limit might be imposed on each speaker because the
committee could meet only from 6:00 to 8:00. The committee
recessed at 3:45 p.m.
| Document Name | Date/Time | Subjects |
|---|