Thursday, July 26, 2012

Maine Medical Marijuana Law, Proposed Rules Changes

Marijuana Dispensary Storefront

Maine has a pretty progressive medical marijuana law found at Title 22, Chapter 558-C. That law remains unchanged. But, under rule making authority granted to Maine Department of Health and Human Services, it has published new proposed rules. These rules would make some pretty substantial changes to the way the existing statute is applied.

Law Enforcement Seizure of Marijuana

Among other things, the rules add some language further warning police against seizing Marijuana from legitimate patients:
2.5 Prohibition on seizure and retention. Except when necessary for an ongoing criminal or civil investigation, a law enforcement officer may not seize marijuana that is in the possession of a qualifying patient, primary caregiver or registered dispensary as authorized by these rules.
And Providing that:
2.5.1 A law enforcement officer in possession of marijuana seized in violation of Section 2.5 of these rules must return the marijuana within 7 days after receiving a written request for return from the owner of the marijuana.
Of course, since Marijuana remains an illegal drug under Federal law, it is seems like the cops have a pretty great work around and could keep any marijuana they seized as part of a federal criminal investigation.

Marijuana Possession:

One big change is new section 2.6. If adopted, Patients will now be required to prove to the police that they are legal. This might run afoul of other federal laws that protect a patient's privacy. Still, the proposed rules provide:

2.6.1 Qualifying patient. As proof of authorized conduct, a qualifying patient must present upon request of a law enforcement officer the patient’s driver’s license that contains a photograph as described under 29-A, Maine Revised Statutes, section 1401 or a nondriver photo identification card as described under 29-A, Maine Revised Statutes, section 1410 and one of the following:
2.6.1.1 The original, unexpired physician’s written certification issued to the non-registered qualifying patient; or
2.6.1.2 An unexpired registry identification card issued to the qualifying patient who voluntarily registered with the department.
That is a pretty big change over the old rules which said nothing on the issue. 


Marijuana Cultivation:

The old rules required an "enclosed locked facility" for keeping Marijuana. See paragraph 4.9. The definition section said:

1.11 Enclosed, locked facility. Enclosed, locked facility means a closet, room, or otherenclosed area within a building, or an enclosed locked facility within a greenhouse, that is
equipped with locks or other security devices that permit access only by a cardholder.
The new rules would make that "enclosed locked facility" a lot more expensive and much more difficult to set up. Oh, and, strangely, you must grow on your own residential property. The prosed rules read in part:

2.7 Enclosed locked facility. All cultivation of marijuana must take place in an enclosed,locked facility as defined in Section 1.12 of these rules.
2.7.1.1 Security. Cultivation of marijuana in an enclosed area requires implementation of appropriate security measures to deter theft of marijuana and prevent unauthorized entrance into the enclosedcultivation area. Security measures must include but are not limited to the following:
2.7.1.1.1 Exterior lighting. Exterior lighting, including motion-activated lighting, must be sufficient to deter nuisance activity and facilitate surveillance, but must not disturb neighbors.
2.7.1.1.2 Fence. A privacy fence at least 8 feet high that completely obscures the view of the contents of the enclosed area and is sufficient to deter theft and unauthorized intrusion. For the purposes of these rules, fence means a structure in good repair, consisting of rails, timber, stone walls, iron or wire,
2.7.1.1.5 Other security measures. Other security measures required by the department to secure the enclosed area.
2.7.1.2 Enclosed area with residence. The enclosed cultivation area must be located where the qualifying patient or caregiver resides. The owner of the property where the qualifying patient or caregiver resides must give written authorization before the marijuana cultivation area is located on the property. 

Medical Marijuana as a defense to Criminal Charges:

This is actually some pretty great proposed language. I bet this gets cut out of the final version:

2.11 Defense for possession of excess marijuana. Except as provided in Section 2.10 of these rules, a qualifying patient may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana possession.
2.11.1 A qualifying patient may present evidence in court that the patient’s necessary medical use or cultivation circumstances warranted exceeding the amount of marijuana allowed by these rules and that the amount was reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of treating or alleviating the patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition.
There is a lot to deal with here. Check out the current rules and compare them yourself. The Rules are open for public comment until 8/23/12.