2005 -- S 710 SUBSTITUTE A AS AMENDED

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LC00988/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2005

____________

A N A C T

RELATING TO FOOD AND DRUGS -- THE RHODE ISLAND MEDICAL MARIJUANA

ACT

     Introduced By: Senators Perry, Polisena, Damiani, McCaffrey, and Sosnowski

     Date Introduced: February 17, 2005

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 21 of the General Laws entitled "Food And Drugs" is hereby amended

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by adding thereto the following chapter:

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     CHAPTER 28.6

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THE EDWARD O. HAWKINS MEDICAL MARIJUANA ACT

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     21-28.6-1. Short title. – This chapter shall be known and may be cited as “The Edward

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O. Hawkins Medical Marijuana Act.”

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     21-28.6-2. Legislative findings. – The general assembly finds and declares that:

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     (1) Modern medical research has discovered beneficial uses for marijuana in treating or

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alleviating pain, nausea and other symptoms associated with certain debilitating medical

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conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999.

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     (2) According to the U.S. Sentencing Commission and the Federal Bureau of

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Investigation, ninety-nine (99) out of every one hundred (100) marijuana arrests in the United

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States are made under state law, rather than under federal law. Consequently, changing state law

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will have the practical effect of protecting from arrest the vast majority of seriously ill people

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who have a medical need to use marijuana.

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     (3) Although federal law currently prohibits any use of marijuana, the laws of Alaska,

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California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington

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permit the medical use and cultivation of marijuana. Rhode Island joins in this effort for the

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health and welfare of its citizens.

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     (4) States are not required to enforce federal law or prosecute people for engaging in

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activities prohibited by federal law. Therefore, compliance with this chapter does not put the state

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of Rhode Island in violation of federal law.

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     (5) State law should make a distinction between the medical and nonmedical use of

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marijuana. Hence, the purpose of this chapter is to protect patients with debilitating medical

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conditions, and their physicians and primary caregivers, from arrest and prosecution, criminal and

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other penalties, and property forfeiture if such patients engage in the medical use of marijuana.

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     (6) The general assembly enacts this chapter pursuant to its police power to enact

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legislation for the protection of the health of its citizens, as reserved to the state in the Tenth

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Amendment of the United States Constitution.

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     21-28.6-3. Definitions. – The purposes of this chapter:

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     (1) “Debilitating medical condition” means:

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     (i) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired

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immune deficiency syndrome, Hepatitis C, or the treatment of these conditions;

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     (ii) A chronic or debilitating disease or medical condition or its treatment that produces

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one or more of the following: cachexia or wasting syndrome; severe, debilitating, chronic pain;

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severe nausea; seizures, including but not limited to, those characteristic of epilepsy; or severe

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and persistent muscle spasms, including but not limited to, those characteristic of multiple

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sclerosis or Crohn’s disease; or agitation of Alzheimer's Disease; or

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     (iii) Any other medical condition or its treatment approved by the department, as

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provided for in section 21-28.6-5.

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     (2) “Department” means the Rhode Island department of health or its successor agency.

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     (3) “Marijuana” has the meaning given that term in section 21-28-1.02(26).

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     (4) “Medical use” means the acquisition, possession, cultivation, manufacture, use,

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delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of

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marijuana to alleviate a registered qualifying patient’s debilitating medical condition or

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symptoms associated with the medical condition.

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     (5) “Practitioner” means a person who is licensed with authority to prescribe drugs

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pursuant to chapter 37 of title 5.

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     (6) “Primary caregiver” means a person who is at least twenty-one (21) years old, and

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who has agreed to assist with a person's medical use of marijuana. A primary caregiver may

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assist no more than five (5) qualifying patients with their medical use of marijuana.

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     (7) “Qualifying patient” means a person who has been diagnosed by a physician as

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having a debilitating medical condition.

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     (8) “Registry identification card” means a document issued by the department that

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identifies a person as a qualifying patient or primary caregiver.

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     (9) “Usable marijuana” means the dried leaves and flowers of the marijuana plant, and

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any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.

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     (10) “Written certification” means the qualifying patient’s medical records, or a statement

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signed by a practitioner, stating that in the practitioner’s professional opinion the potential

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benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying

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patient. A written certification shall be made only in the course of a bona fide practitioner-patient

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relationship after the practitioner has completed a full assessment of the qualifying patient's

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medical history. The written certification shall specify the qualifying patient's debilitating

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medical condition or conditions.

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     21-28.6-4. Protections for the medical use of marijuana. – (a) A qualifying patient

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who has in his or her possession a registry identification card shall not be subject to arrest,

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prosecution, or penalty in any manner, or denied any right or privilege, including but not limited

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to, civil penalty or disciplinary action by a business or occupational or professional licensing

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board or bureau, for the medical use of marijuana; provided, that the qualifying patient possesses

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an amount of marijuana that does not exceed twelve (12) marijuana plants and two and one-half

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(2.5) ounces of usable marijuana.

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     (b) No school, employer or landlord may refuse to enroll, employ or lease to or otherwise

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penalize a person solely for his or her status as a registered qualifying patient or a registered

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primary caregiver.

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      (c) A primary caregiver, who has in his or her possession, a registry identification card

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shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or

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privilege, including but not limited to, civil penalty or disciplinary action by a business or

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occupational or professional licensing board or bureau, for assisting a qualifying patient to whom

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he or she is connected through the department’s registration process with the medical use of

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marijuana; provided, that the primary caregiver possesses an amount of marijuana which does not

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exceed twelve (12) marijuana plants and two and one-half (2.5) ounces of usable marijuana for

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each qualifying patient to whom he or she is connected through the department's registration

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process.

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     (d) There shall exist a presumption that a qualifying patient or primary caregiver is

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engaged in the medical use of marijuana if the qualifying patient or primary caregiver:

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     (1) Is in possession of a registry identification card; and

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     (2) Is in possession of an amount of marijuana that does not exceed the amount permitted

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under this chapter. Such presumption may be rebutted by evidence that conduct related to

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marijuana was not for the purpose of alleviating the qualifying patient’s debilitating medical

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condition or symptoms associated with the medical condition.

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     (e) A primary caregiver may receive reimbursement for costs associated with assisting a

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registered qualifying patient's medical use of marijuana. Compensation shall not constitute sale

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of controlled substances.

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     (f) A practitioner shall not be subject to arrest, prosecution, or penalty in any manner, or

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denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by

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the Rhode Island Board of Medical Licensure and Discipline or by any another business or

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occupational or professional licensing board or bureau solely for providing written certifications

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or for otherwise stating that, in the practitioner's professional opinion, the potential benefits of the

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medical marijuana would likely outweigh the health risks for a patient.

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     (g) Any interest in or right to property that is possessed, owned, or used in connection

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with the medical use of marijuana, or acts incidental to such use, shall not be forfeited.

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     (h) No person shall be subject to arrest or prosecution for constructive possession,

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conspiracy, aiding and abetting, being an accessory, or any other offense for simply being in the

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presence or vicinity of the medical use of marijuana as permitted under this chapter or for

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assisting a registered qualifying patient with using or administering marijuana.

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     (i) A practitioner, nurse or pharmacist shall not be subject to arrest, prosecution or

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penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty

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or disciplinary action by a business or occupational or professional licensing board or bureau

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solely for discussing the benefits or health risks of medial marijuana or its interactions with other

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substances with a patient.

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     (j) A registry identification card, or its equivalent, issued under the laws of another state,

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U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying

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patient, or to permit a person to assist with a qualifying patient’s medical use of marijuana, shall

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have the same force and effect as a registry identification card issued by the department.

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     21-28.6-5. Department to issue regulations. – (a) Not later than ninety (90) days after

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the effective date of this chapter, the department shall promulgate regulations governing the

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manner in which it shall consider petitions from the public to add debilitating medical conditions

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to those included in this chapter. In considering such petitions, the department shall include

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public notice of, and an opportunity to comment in a public hearing, upon such petitions. The

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department shall, after hearing, approve or deny such petitions within one hundred eighty (180)

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days of submission. The approval or denial of such a petition shall be considered a final

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department action, subject to judicial review. Jurisdiction and venue for judicial review are

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vested in the superior court. The denial of a petition shall not disqualify qualifying patients with

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that condition, if they have a debilitating medical condition. The denial of a petition shall not

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prevent a person with the denied condition from raising an affirmative defense.

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     (b) Not later than ninety (90) days after the effective date of this chapter, the department

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shall promulgate regulations governing the manner in which it shall consider applications for and

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renewals of registry identification cards for qualifying patients and primary caregivers. The

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department’s regulations shall establish application and renewal fees that generate revenues

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sufficient to offset all expenses of implementing and administering this chapter. The department

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may vary the application and renewal fees along a sliding scale that accounts for a qualifying

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patient’s income. The department may accept donations from private sources in order to reduce

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the application and renewal fees.

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     21-28.6-6. Administration of regulations. – (a) The department shall issue registry

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identification cards to qualifying patients who submit the following, in accordance with the

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department’s regulations:

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     (1) written certification as defined in section 23-28.6-3(10) of this chapter;

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     (2) application or renewal fee;

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     (3) name, address, and date of birth of the qualifying patient; provided, however, that if

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the patient is homeless, no address is required;

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     (4) name, address, and telephone number of the qualifying patient’s practitioner; and

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     (5) name, address, and date of birth of each primary caregiver of the qualifying patient,, if

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any.

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     (b) The department shall not issue a registry identification card to a qualifying patient

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under the age of eighteen (18) unless:

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     (1) The qualifying patient's practitioner has explained the potential risks and benefits of

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the medical use of marijuana to the qualifying patient and to a parent, guardian or person having

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legal custody of the qualifying patient; and

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     (2) A parent, guardian or person having legal custody consents in writing to:

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     (i) Allow the qualifying patient's medical use of marijuana;

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     (ii) Serve as one of the qualifying patient's primary caregivers; and

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     (iii) Control the acquisition of the marijuana, the dosage, and the frequency of the

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medical use of marijuana by the qualifying patient.

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     (c) The department shall verify the information contained in an application or renewal

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submitted pursuant to this section, and shall approve or deny an application or renewal within

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thirty (30) days of receiving it. The department may deny an application or renewal only if the

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applicant did not provide the information required pursuant to this section, or if the department

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determines that the information provided was falsified. Rejection of an application or renewal is

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considered a final department action, subject to judicial review. Jurisdiction and venue for

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judicial review are vested in the superior court.

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     (d) The department shall issue a registry identification card to each primary caregiver, if

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any, who is named in a qualifying patient’s approved application, up to a maximum of two (2)

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primary caregivers per qualifying patient.

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     (e) The department shall issue registry identification cards within five (5) days of

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approving an application or renewal, which shall expire one year after the date of issuance.

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Registry identification cards shall contain:

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     (1) Name, address, and date of birth of the qualifying patient;

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     (2) Name, address, and date of birth of each primary caregiver of the qualifying patient.,

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if any;

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     (3) The date of issuance and expiration date of the registry identification card;

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     (4) A random registry identification number; and

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     (5) A photograph, if the department decides to require one.

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     (f) Persons issued registry identification cards shall be subject to the following:

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     (1) A qualifying patient who has been issued a registry identification card shall notify the

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department of any change in the qualifying patient’s name, address, or primary caregiver; or if the

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qualifying patient ceases to have his or her debilitating medical condition, within ten (10) days of

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such change.

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     (2) A registered qualifying patient who fails to notify the department of any of these

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changes is responsible for a civil infraction, punishable by a fine of no more than one hundred

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fifty dollars ($150). If the person has ceased to suffer from a debilitating medical condition, the

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card shall be deemed null and void and the person shall be liable for any other penalties that may

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apply to the person's nonmedical use of marijuana.

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     (3) A registered primary caregiver shall notify the department of any change in his or her

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name or address within ten (10) days of such change. A primary caregiver who fails to notify the

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department of any of these changes is responsible for a civil infraction, punishable by a fine of no

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more than one hundred fifty dollars ($150).

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     (4) When a qualifying patient or primary caregiver notifies the department of any

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changes listed in this subsection, the department shall issue the registered qualifying patient and

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each primary caregiver a new registry identification card within ten (10) days of receiving the

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updated information and a ten dollar ($10.00) fee.

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     (5) When a qualifying patient who possesses a registry identification card changes his or

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her primary caregiver, the department shall notify the primary caregiver within ten (10) days.

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The primary caregiver's protections as provided in this chapter shall expire ten (10) days after

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notification by the department.

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     (6) If a registered qualifying patient or a primary caregiver loses his or her registry

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identification card, he or she shall notify the department and submit a ten dollar ($10.00) fee

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within ten (10) days of losing the card. Within five (5) days, the department shall issue a new

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registry identification card with new random identification number.

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     (g) Possession of, or application for, a registry identification card shall not constitute

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probable cause or reasonable suspicion, nor shall it be used to support the search of the person or

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property of the person possessing or applying for the registry identification card, or otherwise

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subject the person or property of the person to inspection by any governmental agency.

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     (h)(1) Applications and supporting information submitted by qualifying patients,

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including information regarding their primary caregivers and practitioners, are confidential and

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protected under the federal Health Insurance Portability and Accountability Act of 1996.

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     (2) The department shall maintain a confidential list of the persons to whom the

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department has issued registry identification cards. Individual names and other identifying

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information on the list shall be confidential, exempt from the provisions of Rhode Island Access

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to Public Information, chapter 2 of title 38, and not subject to disclosure, except to authorized

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employees of the department as necessary to perform official duties of the department.

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     (i) The department shall verify to law enforcement personnel whether a registry

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identification card is valid solely by confirming the random registry identification number.

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     (j) It shall be a crime, punishable by up to one hundred eighty (180) days in jail and a one

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thousand dollar ($1,000) fine, for any person, including an employee or official of the department

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or another state agency or local government, to breach the confidentiality of information obtained

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pursuant to this chapter. Notwithstanding this provision, the department employees may notify

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law enforcement about falsified or fraudulent information submitted to the department.

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     (k) On or before January 1, 2007, the department shall report to the House Committee on

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Health, Education and Welfare and to the Senate Committee on the Judiciary on the use of

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marijuana for symptom relief. The report shall provide:

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     (i) The number of applications for registry identification cards, the number of qualifying

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patients and primary caregivers approved, the nature of the debilitating medical conditions of the

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qualifying patients, the number of registry identification cards revoked, and the number of

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practitioners providing written certification for qualifying patients;

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     (ii) An evaluation of the costs of permitting the use of marijuana for symptom relief,

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including any costs to law enforcement agencies and costs of any litigation;

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     (iii) Statistics regarding the number of marijuana-related prosecutions against registered

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patients and caregivers, and an analysis of the facts underlying those prosecutions;

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     (iv) Statistics regarding the number of prosecutions against physicians for violations of

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this act; and

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     (v) Whether the United States Food and Drug Administration has altered its position

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regarding the use of marijuana for medial purposes or has approved alternative delivery systems

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for marijuana.

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     21-28.6-7. Scope of chapter. – (a) This chapter shall not permit:

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      (1) Any person to undertake any task under the influence of marijuana, when doing so

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would constitute negligence or professional malpractice;

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     (2) The smoking of marijuana:

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     (i) In a school bus or other form of public transportation;

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     (ii) On any school grounds;

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     (iii) In any correctional facility;

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     (iv) In any public place; or

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     (v) In any licensed drug treatment facility in this state

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     (3) Any person to operate, navigate, or be in actual physical control of any motor vehicle,

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aircraft, or motorboat while under the influence of marijuana. However, a registered qualifying

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patient shall not be considered to be under the influence solely for having marijuana metabolites

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in his or her system.

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     (b) Nothing in this chapter shall be construed to require:

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     (1) a government medical assistance program or private health insurer to reimburse a

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person for costs associated with the medical use of marijuana; or

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     (2) an employer to accommodate the medical use of marijuana in any workplace.

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     (c) Fraudulent representation to a law enforcement official of any fact or circumstance

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relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a

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fine of five hundred dollars ($500) which shall be in addition to any other penalties that may

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apply for making a false statement for the nonmedical use of marijuana.

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     21-28.6-8. Affirmative defense and dismissal. – (a) Except as provided in section 21-

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28.6-7, a person and a person’s primary caregiver, if any, may assert the medical purpose for

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using marijuana as a defense to any prosecution involving marijuana, and such defense shall be

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presumed valid where the evidence shows that:

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     (1) The person’s medical records indicate, or a practitioner has stated that, in the

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practitioner’s professional opinion, after having completed a full assessment of the person’s

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medical history and current medical condition made in the course of a bona fide practitioner-

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patient relationship, the potential benefits of using marijuana for medical purposes would likely

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outweigh the health risks for the person; and

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     (2) The person and the person’s primary caregiver, if any, were collectively in possession

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of a quantity of marijuana that was not more than was reasonably necessary to ensure the

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uninterrupted availability of marijuana for the purpose of alleviating the person's medical

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condition or symptoms associated with the medical condition.

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     (b) A person may assert the medical purpose for using marijuana in a motion to dismiss,

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and the charges shall be dismissed following an evidentiary hearing where the defendant shows

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the elements listed in section 21-28.6-8(a).

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     (c) Any interest in or right to property that was possessed, owned, or used in connection

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with a person's use of marijuana for medical purposes shall not be forfeited if the person or the

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person's primary caregiver demonstrates the person's medical purpose for using marijuana

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pursuant to this section.

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     21-28.6-9. Enforcement. – (a) If the department fails to adopt regulations to implement

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this chapter within one hundred twenty (120) days of the effective date of this act, a qualifying

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patient may commence an action in a court of competent jurisdiction to compel the department to

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perform the actions mandated pursuant to the provisions of this chapter.

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     (b) If the department fails to issue a valid registry identification card in response to a

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valid application submitted pursuant to this chapter within thirty-five (35) days of its submission,

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the registry identification card shall be deemed granted and a copy of the registry identification

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application shall be deemed valid registry identification card.

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     21-28.6-10. Severability. – Any section of this act being held invalid as to any person or

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circumstances shall not affect the application of any other section of this act that can be given full

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effect without the invalid section or application.

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     SECTION 2. This act shall take effect upon passage.

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LC00988/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO FOOD AND DRUGS -- THE RHODE ISLAND MEDICAL MARIJUANA

ACT

***

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     This act would protect patients with debilitating medical conditions, and their physicians

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and primary caregivers, from arrest and prosecution, criminal and other penalties, and property

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forfeiture if such patients engage in the medical use of marijuana.

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     This act would take effect upon passage.

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LC00988/SUB

=======

2005 -- S 710 H.

SUBSTITUTE A

A N A C T

RELATING TO FOOD AND DRUGS -- THE RHODE ISLAND MEDICAL MARIJUANA ACT

=======

LC00988/SUB A

=======

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Presented by