The Rules in Hawai`i
In April 2000 Hawai`i became the first state to permit medicinal use of marijuana via an act of the state legislature. Governor Benjamin Cayetano signed Hawai`i’s Act 228 into law on June 15, 2000. Rules for its administration, developed by the state Department of Public Safety, were approved in December of that year and the medical marijuana program has been in effect since that time. Since the implementation of the program, more than 4,000 patients are being registered every year to use medical marijuana under state law.
In the states which have approved the medical use of marijuana, thousands of patients, doctors and caregivers are participating in programs protected from state or local prosecution.
Conflicts between State and Federal Laws However, despite the progress that has been made toward creating safe and legal systems at the state and local level, federal laws banning any use of marijuana remain in effect (except for a narrow exception for participants in federally approved clinical trials.) In fact, on May 14, 2001 the United States Supreme Court issued a decision reaffirming that federal law prohibits the distribution of marijuana for any reason.
In 2005 the U.S. Supreme Court, in Gonzales v. Raich ruled that the federal government had the power under the commerce clause of the U. S. Constitution to enforce federal marijuana laws against patients who possess or cultivate marijuana. The ruling did not address any issues related to medical marijuana nor did it overturn any of the state laws on medical marijuana. The power of state governments to enact and enforce state medical marijuana laws was not affected by this decision.
From a practical point of view, federal prosecutors tend to act against large drug operations. Federal charges are rarely brought against patients for small-scale, personal possession or cultivation of marijuana, although this remains a possibility. In fact, arrests for marijuana in the U.S. over the last several years made by federal authorities account for only 1% of all marijuana arrests.
If a state like Hawai`i has removed criminal penalties for medical use of marijuana, then patients and physicians are protected from arrest by state or local authorities. It is important to note, however, that the protections of the Hawai`i medical marijuana act do not protect patients and physicians from possible federal prosecution.
What Hawaii’s Law Does Protects Patients and Caregivers from Arrest at the State or Local Level
Patients and their “primary caregiver” who comply with this law (obtain certification from a physician and register with the Narcotics Enforcement Division) are protected against prosecution for marijuana-related crimes under Hawai`i law. In the unlikely event of being arrested, patients and their caregivers who follow the law have a new legal defense available to them. If they are arrested by state or local authorities on marijuana charges, a qualified patient or primary caregiver can claim this new defense under state law if they are following the Act’s procedures and using the marijuana only for medical purposes. The law allows growing, transporting and possession of marijuana and “paraphernalia,” but only for medical purposes. It does not speak to the question of whether the purchase and/or sale of marijuana for medical purposes permitted by the Act is decriminalized.
Protects Physicians at the State, Local and Federal Levels The Act states that, if a physician complies with the procedures specified in the Act, she or he shall not be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written recommendation for the medical use of marijuana for a qualifying patient. As of September 2001, the physician is protected from state prosecution and as of 2003, from federal prosecution.
On October 29, 2002 the Ninth Circuit Court of Appeals unanimously upheld the right of doctors to recommend marijuana to their patients The Justices ruled that it is the role of the states, not the federal government to regulate the practice of medicine. In October 2003 the U.S. Supreme Court let this ruling stand (Conant v. Walters, 309F.3d 629, 2002). At the heart of the Conant decision is the First Amendment’s protection of a physician’s right to speak openly and candidly about marijuana’s potential risks and its therapeutic benefits.
Physicians may therefore recommend medical marijuana to patients free from federal threats or interference as long as they do not do more than is required of them by the Act.
Limits Qualifying Medical Conditions In order to use marijuana as medicine, a patient must be diagnosed by a physician licensed to practice in Hawaii as having one or more of the following “debilitating” medical conditions:
1. Cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), or the treatment of these conditions;
2. A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: a) Cachexia or wasting syndrome (severe weakness, malnutrition or weight loss)
b) Severe pain;
c) Severe nausea;
d) Seizures, including those characteristic of epilepsy; or
e) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn’s disease;
f) Additional conditions which may be added by the state Department of Health.
Sets Limits on a Patient’s Protected Supply of Medical Marijuana Under the Hawai`i medical marijuana act, “adequate supply” means an amount of marijuana possessed by the qualifying patient and the primary caregiver together that is “not more than is reasonably necessary” to alleviate the symptoms or effects of a debilitating medical condition. An “adequate supply” must not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant at any given time. Hawaii’s state Narcotics Enforcement Division (NED) is interpreting this to mean that a patient (and/or caregiver) can have 7 plants and/or 3 ounces of useable marijuana on hand at any given time.
What Hawaii’s Law Does NOT Do Does Not Legalize Marijuana
Federal laws banning marijuana remain in effect and the Hawai`i Act does not permit the recreational use of marijuana.
Does Not Allow Just Anyone to Claim “Medical Use” of Marijuana
To be covered under Hawai`i’s medical marijuana law, a patient must register and must have one of the listed medical conditions and have been certified by his/her doctor for medical marijuana use. If a doctor does not provide a written certification, that person does not qualify.
Does Not Allow Unlimited Supplies of Medical Marijuana
Even patients who qualify under the law must still adhere to strict limits on the quantity of medical marijuana they possess. This is limited to an “adequate supply” which shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant (i.e. three ounces in total).
Does Not Permit the Sale of Marijuana
The medical marijuana act defense will not protect someone who sells any amount of marijuana. Any evidence of sale of marijuana can result in prosecution and years of prison time, regardless of the buyer’s or seller’s medical condition or medical authorization to use marijuana.
Does Not Allow the Use of Medical Marijuana in a Public Place, Workplace or in a Moving Vehicle
Even with a doctor’s certification, the Act specifically prohibits use of medical marijuana in any bus or moving vehicle, in the workplace, on school grounds, any use that endangers the health or well being of another person, or in any public place.
Does Not Force a Doctor to Give a Certification for Medical Marijuana
No doctor is required to authorize the medical use of marijuana. Even patients who qualify under the law must still adhere to strict limits on the quantity of medical marijuana they possess.
Please ask you doctor to see if Medical Marijuana is right for you.