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.