The 2002 Petition to Reschedule Cannabis (Marijuana)

Accepted Medical Use of Cannabis: State Laws


The acceptance of cannabis's medical use by eight states since 1996 and the experiences of patients, doctors, and state officials in these states establish marijuana's accepted medical use in the United States

Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington all have enacted legislation accepting marijuana’s medical use by its citizens. See Alaska Stat. §§ 17.37.010-17.37.080 & 11.71.090 (1999); Cal. Health & Safety Code § 11362.5(b)(1)(A) and (d) (1996); Colo. Const., Art. XVIII, § 14; Haw. S.B. 862, 20th Legis. (1999) (signed into law on July 12, 2000); Me. Rev. Stat. Ann., Tit. 22, § 2383-B(5) (2000); Nev. Const., Art. 4, § 38; Ore. Rev. Stat. §§ 475.300-475.346 (1999); Wash. Rev. Code §§ 69.51.010-69.51.080 (1997).

For example, the California Health and Safety Code §11362.5(A) indicates that the purpose of the state’s medical marijuana statute is:

"to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief”

Another indication of acceptance of marijuana’s medical use is Oregon’s program of providing identification cards for patients. One requirement is:

"Valid, written documentation from the person's attending physician stating that the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects of the person's debilitating medical condition” (Section 4, chapter 4, Oregon Laws 1999; 2a)

The right of doctors to recommend marijuana for medical use under state law has been upheld in federal court. (Conant v. McCaffrey, No. C 97-00139 WHA, 2000 U.S. Dist. LEXIS 13024 , 2000 WL 1281174 (N.D. Cal. Sept. 7, 2000)). In this case the Court recognized that physicians had a right to recommend or otherwise discuss medical marijuana use with their patients, and such actions could not be used by the federal government as a basis to revoke physician’s licenses to dispense controlled substances.

The California medical marijuana law was also recently clarified by the state’s Supreme Court, explicitly underscoring the state’s acceptance of marijuana’s medical use:

“As stated, the purpose of the statute is: (1) “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of . . . any . . . illness for which marijuana provides relief” (§ 11362.5, subd. (b)(1)(A)); and (2) “[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction” (§ 11362.5, subd. (b)(1)(B)). Under section 11362.5(d), qualified patients and primary caregivers “who obtain and use marijuana for medical purposes upon the recommendation of a physician” are exempted not only from “criminal . . . sanction” for possession and cultivation of marijuana, but even from “criminal prosecution” (§ 11362.5, subd. (b)(1)(B)), because their conduct is noncriminal, involving as it does the treatment of “seriously ill” persons who “obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit” therefrom (§ 11362.5, subd. (b)(1)(A)).

As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal -- so long as its conditions are satisfied -- than the possession and acquisition of any prescription drug with a physician’s prescription. Inasmuch as this statute provides that sections 11357 and 11358, which criminalize the possession and cultivation of marijuana, “shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician” (§ 11362.5(d)), the provision renders possession and cultivation of marijuana noncriminal under the conditions specified.” Pg 27-28. (People v. Mower, California Supreme Court Case S094490, July 18, 2002; Ct. App. 5 No Fo30690; County of Tuolumne Super. Ct. No. CR1995.)

 

 

 
 
 
  
 
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