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Medical Marijuana in North Dakota

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opinion Fargo, 58102
Fargo North Dakota 101 5th Street North 58102

An Initiated Statutory Petition Relating to Using Marijuana for Medical Purposes was circulated this summer and had been submitted to the North Dakota Secretary of State for review. As noted in the media, the measure will not appear on the ballot due to the improper collection of signatures on the petition. Had it appeared on the ballot, voters would have been asked to decide if they were in favor of creating a new chapter within the North Dakota Century Code allowing for the possession and use of marijuana for medical purposes. This article highlights only portions of the proposed measure. The 28 pages comprising the measure can be read in its entirety at: https://vip.sos.nd.gov/pdfs/Portals/petition-medical.pdf. Copies are also available through the office of the North Dakota Secretary of State, 600 E. Blvd. Ave. Dept. 108, 1st Floor

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Bismarck N.D. 58505-0500; Telephone: 701-328-2900, Toll Free: 800-352-0867

TTY: 800-366-6888, Fax: 701-328-2992, Email: sos@nd.gov

Notes from the author of this article are provided in italic. The comments are meant to be informative and should be considered neutral in opinion.

PETITION TITLE

This initiated measure would create chapter 19-24 in the North Dakota Century Code permitting qualifying patients to use, possess or grow limited amounts of marijuana for medical use if authorized by a medical practitioner in order to treat certain medical conditions, including cancer, glaucoma, Alzheimer's disease, Crohn's disease, and post-traumatic stress disorder. Medical marijuana could not be used in public places, on school buses or grounds, in prisons, or on public transportation. The state Department of Health would regulate medical marijuana organizations involved in the process of producing, dispensing, and testing of medical marijuana; it would also adopt rules, create a registry of qualifying patients and caregivers, and issue identification cards.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF NORTH DAKOTA:

SECTION 1. Chapter 19-24 of the North Dakota Century Code is created and enacted as follows:

19-24-01. Definitions.

For purposes of this chapter, unless the context otherwise requires:

2. "Allowable amount of marijuana" means:

a. With respect to a qualifying patient:

(1) Two-and-one-half [70.8738 grams] ounces of usable marijuana; and

(2) If the qualifying patient's registry identification card states that the qualifying patient is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except the plants are not required to be in an enclosed, locked facility if the plants are being transported because the qualifying patient is moving.

b. With respect to a designated caregiver, for each patient assisted by the designated caregiver under this chapter:

(1) Two-and-one-half ounces [70.8738 grams] of usable marijuana; and

(2) If the designated caregiver's registry identification card provides that the designated caregiver is authorized to cultivate marijuana, twelve marijuana plants, provided that the total number of plants may not exceed 30, contained in an enclosed, locked facility except the plants are not required to be in an enclosed, locked facility if the plants are being transported because the designated caregiver is moving.

c. Marijuana that is incidental to medical use, but is not usable marijuana as defined in this chapter, may not be counted toward a qualifying patient's or designated caregiver's allowable amount of marijuana.

(NOTE: Websites relating to the use and cultivation of marijuana indicate an ounce of marijuana can be rolled into 37 to 54 marijuana cigarettes or joints at .5 to .75 grams per joint. The 2.5 ounces allowed by statute would equate to up to 135 joints. Each marijuana plant should product 1 to 2 ounces of usable marijuana. If the grower uses more highly sophisticated techniques the yield could be up to 5 ounces. The 12 plants allowed would result in 12 to 70 ounces of usable marijuana. The growth cycle from planting the marijuana seed to harvest of the crop averages 4 to 5 months.)

6. "Designated caregiver" means a person who:

a. Is at least twenty-one years of age; and

b. Has agreed to assist no more than five qualifying patients with the medical use of marijuana.

(NOTE: Under the proposed statute the designated caregiver could possess a total of 12.5 ounces if they accept the maximum of 5 patients. The caregiver could also grow up to 30 plants. No qualification, certification or training standard was established within the statute for a designated caregiver)

7. "Enclosed, locked facility" means a closet, room, greenhouse, building, or other enclosed area equipped with locks or other security devices that permit access only by a cardholder.

(NOTE: Qualifying patients or designated caregivers are not restricted by this statute as to the location of the "Enclosed, locked facility." Medical marijuana organizations may be restricted by local ordinance under 19-24-04.)

19-24-20. Affirmative defense.

1. Except as provided in section 19-24-02, a qualifying patient, a visiting qualifying patient, or a caregiver may assert the medical purpose for using marijuana as a defense to any prosecution of an offense involving marijuana intended for a qualifying patient's or visiting qualifying patient's medical use, and this defense must be presumed valid if the evidence shows that:

a. A person who is licensed with authority to prescribe drugs to humans in the state of the patient's residence states that, in his professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide practitioner-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition;

b. The patient and the patient's caregiver, if any, were collectively in possession of a quantity of marijuana that was not more than 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;

c. All marijuana plants were contained in an enclosed locked facility; and

d. The patient and the patient's caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, or transportation of marijuana, paraphernalia, or both, relating to the administration of marijuana solely to treat or alleviate the patient's debilitating medical condition or symptoms associated with the patient's debilitating medical condition.

2. A person may assert the medical purpose for using marijuana in a motion to dismiss, and the charges must be dismissed following an evidentiary hearing if the person shows the elements listed in subsection 1.

3. If a patient or a patient's caregiver demonstrates the patient's medical purpose for using marijuana pursuant to this section, the patient and the patient's caregiver must not be subject to disciplinary action by a court or occupational or professional licensing board or forfeiture of any interest in or right to non-marijuana licit property for the patient's medical use of marijuana.

(NOTE: This portion of the proposed statute was mute as to when the medical examination would have occurred. As written the examination could take place after the person has been charged with illegal possession or delivery of marijuana or drug paraphernalia. If the person charged with illegal possession or delivery received a favorable recommendation from a practitioner following the person's arrest the charges must be dismissed.)

19-24-24. Violations - Civil penalty - Classification.

1. A registered qualifying patient, designated caregiver, or medical marijuana organization agent who willfully fails to comply with subsection 19-24-16(1), (2), or (3) is guilty of an infraction.

(NOTE: This portion relates to change of name and address.)

2. A medical marijuana dispensary or its agent may not willfully dispense, deliver, or otherwise transfer marijuana to a person other than another medical marijuana organization or its agent, a registered qualifying patient, or a registered qualifying patient's registered designated caregiver.

(NOTE: No penalty was defined.)

3. A medical marijuana production facility or its agent may not willfully deliver or otherwise transfer marijuana to a person other than a medical marijuana dispensary or its agent or a safety compliance facility or its agent.

(NOTE: No penalty was defined.)

4. A safety compliance facility or its agent may not willfully deliver or otherwise transfer marijuana to any person other than the registered qualifying patient, visiting qualifying patient, registered designated caregiver, medical marijuana dispensary or its agent, or medical marijuana production facility or its agent that provided the marijuana to the safety compliance facility for laboratory sampling or testing.

(NOTE: No penalty was defined.)

5. A practitioner may not refer patients to a medical marijuana organization or to a registered designated caregiver and shall not advertise in a medical marijuana organization. A person who willfully violates this subsection is guilty of an infraction.

6. A practitioner who holds a financial interest in a medical marijuana organization may not issue written certifications. A person who violates this subsection is guilty of an infraction.

7. It is a class A misdemeanor for any person, including an employee or official of the department or another state agency or local government, to breach the confidentiality of information obtained pursuant to this chapter.

8. A person who intentionally makes a false statement to a law enforcement official about any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution is guilty of an infraction in addition to any other penalties that may apply for making a false statement or for the possession, cultivation, or sale of marijuana not protected by this chapter.

(NOTE: NDCC 12.1-32-01. Classification of offenses - Penalties. Class A misdemeanor, for which a maximum penalty of one year's imprisonment, a fine of two thousand dollars, or both, may be imposed. Infraction, for which a maximum fine of five hundred dollars may be imposed. Any person convicted of an infraction who has, within one year prior to commission of the infraction of which the person was convicted, been previously convicted of an offense classified as an infraction may be sentenced as though convicted of a class B misdemeanor. If the prosecution contends that the infraction is punishable as a class B misdemeanor, the complaint shall specify that the offense is a misdemeanor.)

Please be cautious and take time to be informed.

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