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Oregon Medical Marijuana Act amended for 2006: First Impressions

Dr. Rick Bayer - Alternatives Magazine

In 1998, Oregon voters passed the Oregon Medical Marijuana Act (OMMA). In 2005, legislators passed Senate Bill (SB) 1085. SB1085 is effective January 1, 2006.

SB1085 was true bipartisan compromise legislation so no one got everything s/he wanted. SB1085 has good, bad, and borderline parts. Viewpoints differ between patients versus caregivers and between those residing in “OMMA-hostile” versus “OMMA-tolerant” counties. When discussing the OMMA, recall that even though it protects only from state and local arrests; 99% of marijuana arrests are by state and local law enforcement - not by federal law enforcement.

SB1085 begins by codifying that delivery of marijuana among OMMA registered permit cardholders (registrants) is allowed within limits as long as there is no payment. Stated another way, delivery of marijuana without consideration of payment among registrants is legal within possession limits.

The new possession limits in SB1085 improve to 6 mature plants, 18 immature plants, and 24 ounces of useable marijuana, which is good. If a registrant follows the new limits, s/he should avoid arrest by state and local law enforcement (LE). But, overgrowing or exceeding the new possession limits can create more problems under SB1085 than under the 1998 OMMA. This is because SB1085, while keeping the affirmative defense for nonregistered patients within possession limits; removes the affirmative defense for registrants who exceed possession limits. With the registrant affirmative defense in the 1998 OMMA, a registrant could present - only after being arrested - a doctor’s note affirming s/he needed more than the 1998 OMMA limits of 3 mature plants, 4 immature plants, and 4 ounces of useable marijuana. Practically, an affirmative defense that costs over $50,000 to present and rarely yields an acquittal has limited value. Even with affirmative defenses, nearly all arrested for medical marijuana felonies will plea-bargain rather than go to trial. Politically, it seems LE allowed higher possession limits to get a bright line - above which, patients cannot cultivate or possess. All patients agree that adequate possession limits to avoid arrest are desirable. The controversy is whether the SB1085 possession limits are adequate.

SB1085 establishes a new category of registrant that is neither a patient nor the patient’s designated primary caregiver (caregiver). The new registrant is called a person responsible for a marijuana grow site. Legislators also created a growsite registration card that is different than the usual registry identification (ID) card. The growsite registration card must be at the growsite at all times while the registrant transporting marijuana must now physically carry the registry ID card.

Definite improvements in SB1085 include protection for nurses in healthcare facilities (like a hospice) that might administer medical marijuana to registered patients. This gets closer to original goals of the OMMA that medical marijuana be treated like other medicines. In addition, there will now be 24 hours per day, 7 days per week registry ID verification. Patients and LE want this so registration can be verified after business hours without hassle. Codification of security procedures described in the new amendments protects patient confidentiality. The Department of Human Services (DHS) Oregon Medical Marijuana Program (OMMP) allows stakeholder advisory meetings now but SB1085 requires these public meetings quarterly.

Another new area states usable marijuana and plants belong to the patient and must be provided to the patient upon request. An economic compromise in SB1085 is that a patient or patient’s caregiver may reimburse costs of supplies and utilities to the person responsible for a marijuana growsite but cannot pay other costs, including labor.

Bad parts of SB1085 include new administrative punishments piled on top of criminal justice punishment. If a patient is convicted of a crime involving Schedule 1 or 2 drugs (like overgrowing the new plant limits) the patient’s growsite registration card is restricted so the patient is prohibited from cultivating for 5 years. A second violation results in a lifetime restriction from cultivation. Some patients with poor yields or extraordinary demands compensate by growing more plants. At the insistence of LE, the new amendments mandate severe administrative penalties without any administrative review to allow for exceptional cases. Only intensive effort amended SB1085 so the restricted patient with the registry ID card could designate the growsite registration card to a person responsible for a marijuana growsite to cultivate for the restricted patient. But, the restricted patient cannot be present at the growsite and cannot possess over one ounce of useable marijuana. A similarly convicted nonpatient is also restricted from cultivating. Importantly, these restrictions apply only to violations after January 1, 2006; and SB1085 says patients, regardless of marijuana violations, should remain eligible for registry ID cards even if restricted from cultivating.

A multi-patient garden is more than one garden at one address. SB1085 states if the patient or caregiver is not present at the garden then the person responsible for the marijuana growsite may grow for a maximum of four patients and/or caregivers. Although there is a restriction on the person responsible for the marijuana growsite to four patients and/or caregivers; there is no restriction on the number of patients for whom one person can be the designated primary caregiver. And, there is no restriction on patient cooperatives if 6 or 10 patients live at one address and have personal gardens. SB1085 is clearly written this way, so perhaps legislators, while limiting garden sizes among nonpatients and noncaregivers, were humanely avoiding interference with existing patient-caregiver relationships.

For a section-by-section legal analysis of SB1085 by Oregon attorney and OMMA co-author Leland Berger, please see the Oregon Criminal Defense Lawyers Association Newsletter. Oregon Administrative Rules discussing SB1085 should be available soon at the OMMP website.

It will take time to assess the total impact of SB1085. Those who achieved this compromise legislation deserve congratulations because, with the above exceptions, SB1085 improves the 1998 OMMA. Nevertheless, SB1085 was overly influenced by America’s misguided war on marijuana and actually adds punitive laws for patients who may be guilty only of being bad gardeners. Herbal medicine gardens can provide cost-effective medicine but limits must be based on needs rather than ultimatums from prohibitionists. SB1085 ignores patients too sick to garden and patients who need medicine immediately since it remains illegal for patients to buy needed medicine. Making the OMMA better is a cause to celebrate. But, state actions must eventually persuade the feds to leave medical marijuana states alone and reschedule marijuana so patients can access medicine by prescription through state-regulated private pharmacy-like dispensaries.

Richard “Rick” Bayer, MD, FACP is board-certified in internal medicine, a Fellow in the American College of Physicians (FACP), and practiced in Oregon many years. He is an author of: Is Marijuana the Right Medicine For You? A Factual Guide to Medical Uses of Marijuana; an author and a chief-petitioner of the Oregon Medical Marijuana Act of 1998; has appeared as a medical cannabis expert witness in Oregon state courts, and maintains a medical cannabis bibliography linked from www.omma1998.org.

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