Medical Marijuana in Montana

Basic Summary

Sixty-two percent of voters approved Initiative 148 on November 2, 2004. The law took effect that same day. It removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who possess written documentation from their physicians authorizing the medical use of marijuana.

1_medical_cannabis.pngPatients diagnosed with the following illnesses are afforded legal protection under this act:

cachexia or wasting syndrome; severe or chronic pain; severe nausea; seizures, including but not limited to seizures caused by epilepsy; or severe or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis or Crohn's disease.

The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients.

Senate Bill 423, which became law on May 14, 2011, amends the state's medical marijuana law. The act went into effect on July 1, 2011. Among the changes mandated by this act:

  • Chronic pain patients will face more stringent requirements to qualify under the law, and in some cases may require a recommendation from two separate physicians;
  • Patients found guilty of marijuana DUI will have their medical marijuana privileges revoked;
  • Advising physicians will be reported to the Board of Medical Examiners if they recommend for more than 25 patients per year; Physician will be responsible for the costs of this investigation;
  • Caregivers may accept no monetary compensation for providing cannabis to qualified patients.

A comprehensive summary of the primary provisions of SB 423 may be found here. Full text of the measure is online here.

Several provisions of SB 423 are presently being litigated in court.

Statutes: Montana Medical Marijuana Act, Mont. Code Ann. §§ 50-46-1 to 50-46-2 (2007).

State of Montana: http://www.dphhs.mt.gov/marijuanaprogram/

 

The “Montana Marijuana Act” Outline

This document is a guide, is not intended to serve as legal advice, and was created to assist readers in identifying relevant sections of the Act and should be used for reference purposes only. 

Some provisions of SB 423 have been blocked temporarily through a lawsuit sponsored by the Montana Cannabis Industry Association. Those provisions are highlighted in red. Currently two orders are in place, which block these provisions. The June 30, 2011 injunction is here. Portions of this order were overturned by the Montana Supreme Court and reinstated in a second order issued by the District Court on January 16, 2013, available here.

Name of the Act

50-46-301(1), MCA

“Montana Marijuana Act”

Purpose of the Act

50-46-301(2), MCA

 

(a)     Provide protections to people with debilitating medical conditions who use marijuana to alleviate symptoms of one or more debilitating medical condition(s)

(b)    Allow for cultivation, manufacture, delivery, and possession of marijuana by persons who obtain registry ID cards

(c)     Allow individuals to assist a limited number of registered cardholders with the cultivation and manufacture of marijuana or marijuana-infused products

(d)    Establish reporting requirements for production of marijuana and marijuana-infused products and inspection requirements for premises

(e)     Give local governments ability to set standards for cultivation, manufacture, and use of marijuana to protect the public health, safety, and welfare of residents

“Cardholder”

50-46-302(12), MCA

Same meaning as “Registered Cardholder”

Means:

  • A Montana resident
  • With a debilitating medical condition
  • Who has received and maintains a valid registry identification card

“Correctional facility or program”

50-46-302(1), MCA

  • Any facility or program that is described in 53-1-202 and to which a person may be ordered by court.

“Debilitating medical condition”

50-46-302(2), MCA

(a)     Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome when the condition or disease results in symptoms that seriously and adversely affect the patient's health status; 

(b)    Cachexia or wasting syndrome; 

(c)     Severe chronic pain that is persistent pain of severe intensity that significantly interferes with daily activities as documented by the patient's treating physician and by: 
     (i) objective proof of the etiology of the pain, including relevant and necessary diagnostic tests that may include but are not limited to the results of an x-ray, computerized tomography scan, or magnetic resonance imaging; or 
     (ii) confirmation of that diagnosis from a second physician who is independent of the treating physician and who conducts a physical examination;

(d)    Intractable nausea or vomiting; 

(e)     Epilepsy or an intractable seizure disorder; 

(f)      Multiple sclerosis; 

(g)     Crohn's disease; 

(h)    Painful peripheral neuropathy;

(i)       A central nervous system disorder resulting in chronic, painful spasticity or muscle spasms; 

(j)       Admittance into hospice care in accordance with rules adopted by the department; or 

(k)     Any other medical condition or treatment for a medical condition approved by the legislature. 

“Department”

50-46-302(3), MCA

The department of public health and human services (DPHHS)

“Local government”

50-46-302(4), MCA

A county, a consolidated government, or an incorporated city or town

“Marijuana”

50-46-302(5), MCA

Refers to the definition found in the criminal code, located at 50-32-101, MCA.

       (18) "Marijuana (marihuana)" means all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination. 

 

“Marijuana-infused product”

50-46-302(6), MCA

(a)     A product that contains marijuana and is intended for use by a registered cardholder by a means other than smoking.

(b)    Includes but is not limited to edible products, ointments, and tinctures.

“Marijuana-infused products provider”

50-46-302(7), MCA

(a) A person who

  • Is a Montana resident
  • Meets the requirements of the MMA
  • Has applied for and received a registry identification card to manufacture and provide marijuana-infused products
  • For a registered cardholder. 

(b) The term does not include the cardholder's treating or referral physician.

“Mature marijuana plant”

50-46-302(8), MCA

A harvestable female marijuana plant that is flowering.

“Paraphernalia”

50-46-302(9), MCA

Refers to the definition found in the criminal code, located at 45-10-101, MCA. The definition is extensive and lists many specific devices, but the basic definition is described as:

All equipment, products, and materials of any kind that are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a dangerous drug.

“ Provider”

50-46-302(10), MCA

(a) Means:

  • A Montana resident
  • Who is 18 years of age or older
  • Who is authorized by the department to assist a registered cardholder as allowed under the MMA. 

(b)  The term does not include the cardholder's treating physician or referral physician.

“ Referral physician”

50-46-302(11), MCA

A person who: 

  • Is licensed under Title 37, chapter 3
  • Has an established office in Montana; and
  • Is the physician to whom a patient's treating physician has referred the patient for physical examination and medical assessment. 

“Registered cardholder”

50-46-302(12), MCA

Same meaning as “Cardholder”

Means:

  • A Montana resident
  • With a debilitating medical condition
  • Who has received and maintains a valid registry identification card

“Registered premises”

50-46-302(13), MCA

 Means:

  • the location at which a provider or marijuana-infused products provider has indicated the person will cultivate or manufacture marijuana for a registered cardholder.

“Registry identification card”

50-46-302(14), MCA

  • A document issued by the department pursuant to 50-46-303 that identifies a person as a registered cardholder, provider, or marijuana-infused products provider.

“Resident”

50-46-302(15), MCA

(a) Refers to the definition found in 1-1-215, MCA:

 

(1)     It is the place where a person remains when not called elsewhere for labor or other special or temporary purpose and to which the person returns in seasons of repose. 

(2)     There may be only one residence. If a person claims a residence within Montana for any purpose, then that location is the person's residence for all purposes unless there is a specific statutory exception. 

(3)     A residence cannot be lost until another is gained.

(4)     The residence of an unmarried minor is:

  1. the residence of the minor's parents; 
  2. if one of the parents is deceased or the parents do not share the same residence, the residence of the parent having legal custody; 
  3. if neither parent has legal custody, the residence of the legal guardian or custodian appointed by a court of competent jurisdiction; or 
  4. if the conditions in 20-5-502 are met, the residence of the caretaker relative.

(5)     In the case of a controversy, the district court has jurisdiction over which residence is the residence of an unmarried minor. 

(6)     Except as provided in Title 20, chapter 5, part 5, and this section, the residence of an unmarried minor who has a parent living cannot be changed by either the minor's own act or an act of the minor's guardian. 

(7)     The residence can be changed only by the union of act and intent.

 

(b) An individual is not considered a resident for the purposes of the MMA if the individual: 
     (i) claims residence in another state or country for any purpose; or 
     (ii) is an absentee property owner paying property tax on property in Montana. 

“Second degree of kinship by blood or marriage”

50-46-302(16), MCA

Means a:

  • mother,
  • father,
  • brother,
  • sister,
  • son,
  • daughter,
  • spouse,
  • grandparent,
  • grandchild,
  • mother-in-law,
  • father-in-law,
  • brother-in-law,
  • sister-in-law,
  • son-in-law,
  • daughter-in-law,
  • grandparent-in-law,
  • grandchild-in-law,
  • stepfather,
  • stepmother,
  • stepbrother,
  • stepsister,
  • stepson,
  • stepdaughter,
  • stepgrandparent, or
 stepgrandchild.

“ Seedling”

50-46-302(17), MCA

  • A marijuana plant that has no flowers and is less than 12 inches in height and 12 inches in diameter.

“ Standard of care”

50-46-302(18), MCA

Means at least the following activities, when performed by a patient's treating physician or referral physician, and requires written certification for a patient with a debilitating medical condition: 

(a)     Obtaining the patient's medical history;

(b)    Performing a “relevant and necessary” physical exam; 

(c)     Reviewing prior treatment and treatment response for the debilitating medical condition; 

(d)    Obtaining and reviewing any relevant and necessary diagnostic test results related to the debilitating medical condition; 

(e)     Discussing with the patient and ensuring that the patient understands the advantages, disadvantages, alternatives, potential adverse effects, and expected response to the use of marijuana; 

(f)      Monitoring the response to treatment and possible adverse effects; and 

(g)     Creating and maintaining patient records that remain with the physician. 

“ Treating physician”

50-46-302(19), MCA

Means a person who: 

(a)     is licensed under Title 37, chapter 3;

(b)    has an established office in Montana; and

(c)     has a bona fide professional relationship with the person applying to be a registered cardholder.

“ Usable marijuana”

50-46-302(20), MCA

(a)     Means the dried leaves and flowers of the marijuana plant and any mixtures or preparations of the dried leaves and flowers that are appropriate for the use of marijuana by a person with a debilitating medical condition. 

(b)    The term does not include the seeds, stalks, and roots of the plant. 

 

Note: compare with the definition of simply “marijuana,” which is totally different! Both terms are used throughout the Montana Marijuana Act but courts treat these definitions differently.

“ Written certification”

50-46-302(21), MCA

Means:

  • A statement signed by a treating physician or referral physician that
  • Meets the requirements of 50-46-310 and
  • Is provided in a manner that meets the standard of care.

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(1) MCA

(a)     DPHHS must establish an ID card program for residence who

                                        i.      Have a debilitating medical condition and submit application, and

                                      ii.      Are named as providers or MIPPs by patients

(b)    People with ID cards may cultivate, manufacture, possess and transport marijuana

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(2) MCA

DPHHS must conduct a criminal background check according to standards set in 50-46-307 MCA and 50-46-308 MCA.

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(3) MCA

Cards must be:

(a)     Laminated on durable paper

(b)    Contain name, address and date of birth of cardholder and provider or PPIP

(c)     Provide date card issued and expiration date

(d)    Contain a unique ID number

(e)     Indicate whether card is for a patient, provider or MMIP

(f)      Contain other information DPHHS requires by agency rule

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(4) MCA

(a)     DPHHS must review new or renewal apps, approve or deny within 30 days of receipt of all required materials

(b)    DPHHS must issue registry ID within 5 days of approval 

 

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(5) MCA

Rejection of an application is considered final, but may be fought in court

 

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(6) MCA

(a)     ID cards expire 1 year after date issued unless

  1. Physician sets limit shorter than 1 year
  2. Patient changes providers or MMIPs

(b)  Providers or MMIPs card expires when new one issued to new provider or MMIP

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(7) MCA

 

Patient MUST notify DPHHS of a change of any of the following within TEN DAYS of change or CARD IS VOID.

  • Patient’s name
  • Patient’s address
  • Patient’s physician
  • Patient’s provider
  • Patient’s MMIP
  • Status of qualifying medical condition

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(8) MCA

DPHHS must keep a confidential list of people for whom ID cards were issued. Except as provided in 50-46-310(9), the list must be kept confidential except for:

(a)     Authorized employees of DPHHS as needed for their work

(b)    Authorized employees of state or local government including law enforcement, but only to identify person is a lawful possessor of ID card

Department responsibilities -- issuance of cards -- confidentiality -- reports.

50-46-303(9) MCA

  • DPHHS must give names of providers and MMIPs to local law enforcement agencies that have jurisdiction in area where provider/MMIP is located.
  • Law enforcement agency and employees subject to confidentiality requirements in 50-46-332, MCA.

Department responsibilities -- issuance of cards -- confidentiality – reports.

50-46-303(10) MCA

(a)     DPHHS must provide board of medical examiners with name of any physician who provides written certification for 25 or more patients in 12-month period

  • Board must review physician’s practice to see if practice meets standard of care.

(b)    Physician under review must pay costs of review activity.

Department responsibilities -- issuance of cards -- confidentiality – reports.

50-46-303(11) MCA

 

DPHHS must report 2 times each year to the legislature with the following information:

  • Number applications
  • Number of approved patients
  • Nature of qualifying conditions
  • Number of providers and MIPPs
  • Number of ID cards revoked
  • Number of physicians providing recommendations
  • Number of certifications issued by physicians

 

Report may not provide identifying information on cardholders, physicians, providers or MMIPs

Department responsibilities -- issuance of cards -- confidentiality – reports.

50-46-303(12) MCA

 

Board of Medical Examiners must report to legislature each year:

(a)     Number of complaints and types of complaints related to medical marijuana recommendations

(b)    Number of physicians reported to Board by DPHHS pursuant to 50-46-303(10) above.

Report must include information on whether or not investigated on reported physician met the standard of care.

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(1), MCA

 

Unless an exception is made in sections 2-4 (below), DPHHS must issue an ID card to a person with a qualifying condition who complies with DPHHS rules and submits the following:

(a)     An application issued by DPHHS

(b)    A fee

(c)     The person’s name, street address and date of birth

(d)    Proof of residency in Montana

(e)     A statement that the person will either be growing their own or obtaining it from a provider or MMIP

(f)      A statement they will not divert marijuana to anyone else

(g)     The name, address and telephone number of the patient’s treating or referral physician

(h)    The street address where the person is cultivating marijuana if they are growing their own

(i)       Name, date of birth, street address of provider or MMIP if any

(j)       Written certification from recommending physician as required by 50-46-310, MCA.

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(2), MCA

 

DPHHS must issue an ID card to a minor if conditions of (1), above, are met AND the minor’s custodial parent or guardian does the following:

(a)     If a guardian, provides proof of legal guardianship and responsibility for health care decisions

(b)    Signs a statement that

  1. Treating physician or referral physician explained risks and benefits of marijuana to minor and parent or guardian
  2. Minor’s parent or guardian
    1. Consents to use of marijuana by minor
    2. Agrees to serve as MMIP
    3. Agrees to control acquisition or marijuana and dosage and frequency of use by minor
    4. Agrees minor will use marijuana-infused products ONLY andwill not smoke marijuana

(c)     Submits fingerprints for background check and consents to pay for costs for background check

  • Parent or guardian many get a card unless they meet the requirements of 50-46-308, MCA.

(d)    Pledges not to divert marijuana or MMIP to any other person.

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(3), MCA

Applications for minors must include a recommendation from a 2nd physician, which must comply with the requirements of 50-46-310, MCA.

 

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(4), MCA

A person cannot be a cardholder if he or she is in custody or under supervision by the Department of Corrections or a youth court.

 

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(5), MCA

A patient who uses a provider or a MIPP may not grow his or her own marijuana. That person may grow for someone else if he or she is a provider or MIPP.

 

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(6), MCA

A cardholder may grow or manufacture marijuana as allowed under 50-46-319, MCA, if

(a)     It is at the property owned by the cardholder, or

(b)    It is with written permission of the landlord and located at a property that is rented or leased by the cardholder

Persons with debilitating medical conditions -- requirements -- minors -- limitations.

50-46-307(7), MCA

When property is used by a cardholder for growing or manufacturing marijuana, the property may not be shared with, rented or leased to a provider or MIPP, unless the provider or MIPP is related to the cardholder by second degree of kinship by blood or marriage. 

Provider types -- requirements -- limitations -- activities.

50-46-308(1), MCA

 

DPHHS must issue a registry ID to a provider or MIPP if they submit:

(a)     Name, DOB, street address

(b)    Proof of residency

(c)     Fingerprints for background check by FBI

(d)    Signed agreement by patient that person will serve as provider or MIPP

(e)     Statement that person will not divert cultivated or manufactured marijuana to any other person

(f)      Statement that provider or MIPP will cultivate/manufacture at only one location identified by street address.

(g)     Fee determined by DPHHS. Must cover costs of fingerprints, background check and administrative costs
  

Provider types -- requirements -- limitations -- activities.

50-46-308(2), MCA

 

DPHHS must not issue a registry ID card if the person:

(a)     Has a felony conviction for anything or either a felony or misdemeanor conviction for a drug offense

(b)    Is in custody or supervision of the Department of Corrections

(c)     Has been convicted of fraudulently misrepresenting patient, provider or MIPP status to law enforcement under 50-46-331, MCA.

(d)    Has failed to

                                           i.      Pay taxes, or money owed to a government agency

                                         ii.      Stay out of default on govt-backed student loan

                                        iii.      Pay child support

                                       iv.      Remain caught up on child support, back taxes, judgment owed to a government agency, or

(e)     Is a cardholder who has a provider or MIPP designated pursuant to his or her application for a card under 50-46-307, MCA.

Provider types -- requirements -- limitations -- activities.

50-46-308(3), MCA

(a)     (i) Provider or MIPP may provide for a max of 3 cardholders

(ii) Person who is registered as both a provider and MIPP may provide for a max of 3 cardholders

(b)    If the provider/MIPP is a registered cardholder, then may only provide for two other cardholders

Provider types -- requirements -- limitations -- activities.

50-46-308(4), MCA

The only reimbursement a provider or MIPP may accept from a cardholder is the cost of an application or renewal.

 

 

Provider types -- requirements -- limitations -- activities.

50-46-308(5), MCA

All marijuana used must be grown and processed in Montana.

 

Provider types -- requirements -- limitations -- activities.

50-46-308(6), MCA

 

A provider or MIPP may not:

(a)     Accept anything of value from a cardholder including money, for services or products provided

(b)    Buy or sell marijuana plants, seedlings, cuttings, clones, usable marijuana or marijuana-infused products

(c)     Use marijuana unless also registered as a cardholder

Provider types -- requirements -- limitations -- activities.

50-46-308(7), MCA

 

(a)     A provider or MIPP may cultivate or manufacture at one of the following types of locations

                                     i.      Property owned by the provider or MIPP

                                   ii.      If not owned, at a location with written permission of the landlord, or

                                  iii.      At a property owned, leased or rented by the patient under 50-46-307, MCA.

(b)    No part of the property used to cultivate/manufacture may be shared with, rented, or leased to another provider, MIPP or cardholder.

Marijuana-infused products provider -- requirements -- allowable activities.

50-46-309, MCA

 

(1)     A MIPP must

(a)     Do all preparation at location registered with DPHHS for that purpose, and

(b)    Use equipment used exclusively for manufacture and preparation of marijuana-infused products

(2)     A MIPP:

(a)     May cultivation only for making marijuana-infused products, and

(b)    May not provide cardholder smokable forms of marijuana unless also registered as a provider for that patient

(3)     Registered premises must meet standards set by local board of health for a food service as defined in 50-50-102, MCA.

(4)     Marijuana-infused products may not be considered a food or drug under Title 50, chapter 31.

Written certification -- accompanying statements.

50-46-310(1), MCA

 

Written certification from a doctor must be on a form created by DPHHS, and must include:

(a)     Physician’s name, license number, office address, office phone number on file with Board of Medical Examiners, physician’s business email address if any, and

(b)    Name, DOB, qualifying medical condition of patient applying for registry status

Written certification -- accompanying statements.

50-46-310(2), MCA

 

A physician providing documentation must provide an initialed statement that:

(a)     Confirms the physician is

(i)       The person’s treating physician and the patient has been under that doctor’s ongoing medical care as part of a bona fide professional relationship, or

(ii)     The patient’s referral physician

(b)    Confirms that the person has a debilitating medical condition

(c)     Describes the medical condition, why it is debilitation, and extent to which it is debilitating

(d)    Confirms that:

  • The physician has assumed primary responsibility for management and routine care for patient’s condition
  • After obtaining a comprehensive medical history and conducting a physical exam
  • Which includes review of medical records maintained by other physicians that may include reactions to conventional medical therapies

(e)     Describes medications, procedures and other medical options used to treat underlying condition

(f)      States that medications, procedures and other medical options have not been effective

(g)     Confirms that the physician has reviewed all prescription and nonprescription medications and supplements used by the person and has considered the potential drug interaction with marijuana; 

(h)    States that the physician is reasonably certain the patient’s condition would be alleviated by use of marijuana and would benefit by it

(i)       Confirms that the doctor has explained potential risks and benefits of marijuana use

(j)       Lists restrictions on patient’s activities due to use of marijuana

(k)     Specifies time period marijuana use would be appropriate, up to 1 year

(l)       States the physician will:

(i)       Continue to serve as treating physician or referral physician

(ii)     Monitor the person’s response to treatment with marijuana and its usefulness

(m)  Contains a formal assurance that the information contained in the written recommendation is true

Written certification -- accompanying statements.

50-46-310(3), MCA

 

A second physician making a recommendation for a minor must submit:

(a)     An initialed statement that the doctor performed a comprehensive review of the minor’s medical records from the treating physician

(b)    A statement that in his or her professional opinion, the potential benefits likely outweigh health risks, and

(c)     A formal assurance that information provided is true

Written certification -- accompanying statements.

50-46-310(4), MCA

If doctor limits use of marijuana to less than 1 year, DPHHS must issue card valid for time specified by the doctor.

Registry card to be carried and exhibited on demand -- photo identification required. 

50-46-317, MCA

Patients, providers and MIPPs must:

  • Keep their cards in their immediate possession at all times
  • Display their cards when demanded by a law enforcement officer or judge

 

Health care facility procedures for patients with marijuana for use.

50-46-318, MCA

(1)      

(a)     Unless it is a hospice or residential care facility that allows use of medical marijuana as provided in 50-46-320, MCA, a health care facility shall do the following when a patient has marijuana in his or her possession upon admission:

                                     i.      Require the patient to remove it from the premises before admission, or

                                   ii.      Make a reasonable effort to contact the provider, MIPP, guardian or someone with power of attorney

(b)    If the patient can’t remove the marijuana or the facility cannot reach anyone:

                                     i.      The facility must contact law enforcement

(2)  The provider, MIPP, guardian or person with power of attorney remove the marijuana and deliver it to the patient’s residence.

(3) If law enforcement is contacted, they must remove the marijuana and destroy it.

(4) The health care facility may not be charged for costs related to removal.

Legal protections -- allowable amounts.

50-46-319(1), MCA

 

(a)     A patient may have up to 4 mature plants, 12 seedlings, and 1 ounce of usable marijuana.

(b)    A provider or MIPP may have up to 4 mature plants, 12 seedlings, and 1 ounce of usable marijuana for each registered patient who named that person as their provider.

Legal protections -- allowable amounts.

50-46-319(2), MCA

 

Just because a person …

(a)

  • cultivates,
  • manufactures,
  • possesses, or
  • transports marijuana in the amounts allowed in this section, or

(b)  a patient acquires or uses marijuana

 

That individual may not be  …

  • Arrested
  • Prosecuted
  • Penalized in any manner, or
  • Be denied any right or privilege including
    • Civil penalty or
    • Disciplinary action by a professional licensing board or the Department of Labor and Industry

 

UNLESS as provided in 50-46-320, MCA and as provided in 50-46-319(7).

Legal protections -- allowable amounts.

50-46-319(3), MCA

 

Just because he or she provides a written certification for a patient with a debilitating medical condition, a physician may not be

  • Arrested,
  • Prosecuted,
  • Penalized in any manner, or
  • Denied any right or privilege, including
    • Civil penalty, or
    • Disciplinary action by
      • The Board of Medical Examiners, or
      • The Department of Labor and Industry

Legal protections -- allowable amounts.

50-46-319(4), MCA

 

Despite the protections offered in this section, a person can still face civil penalty or disciplinary action by a professional licensing board or department of labor and industry if:

(a)     A patient’s use of marijuana impairs that person’s job-related performance, or

(b)    A physician violates the standard of care or other requirements of the Act.

Legal protections -- allowable amounts.

50-46-319(5), MCA

 

(a)     An individual may not be arrested or prosecuted for

(a)     Just because an individual is in the presence or vicinity of the use of marijuana as permitted in the Act, that person may not be arrested or prosecuted for:

  • Constructive possess, or
  • Conspiracy, or
  • Other provisions of law or any other offense

 

(b)   This subsection does not prevent arrest or prosecution if the person is in actual possession or is using marijuana and is not a registered cardholder.

Legal protections -- allowable amounts.

50-46-319(6), MCA

Other than the fact that under this Act, law enforcement can search providers and MIPPs during business hours under 50-46-329, MCA, simply possessing or applying for a registry card by itself does not give law enforcement or any other government agency probable cause to search or inspect a person or property.

Legal protections -- allowable amounts.

50-46-319(7), MCA

Getting a card after arrest or a criminal charge is not a defense to the charge.

 

Legal protections -- allowable amounts.

50-46-319(8), MCA

(a)     It is assumed that a patient, provider or MIPP is engaged in lawful conduct related to this act if the person:

                                           i.      Is in possession of a valid card, and

                                         ii.      Is only in possession of an amount of marijuana within the limits set in this law

(b)    This assumption may be rebutted by evidence that possession was not for the purpose of alleviating the symptoms or effects of a cardholder’s medical condition.

Limitations of act.

50-46-320(1), MCA

A person may not:

(a)     Operate or be in control of a vehicle while impaired due to the use of marijuana

(b)    Use marijuana

                                        i.      In a health care facility

                                      ii.      In a school or postsecondary school

                                     iii.      On or in property owned by a school district or postsecondary school

                                    iv.      On or in property leased by a school district or postsecondary school when it is being used for school-related purposes

                                      v.      In a school bus or other form of transportation

                                    vi.      When sentenced to a correctional facility or program

                                   vii.      When restricted by a court under 46-18-202, MCA

                                 viii.      At a public park, public beach, public recreation center or youth center

                                    ix.      In or on the property of a church, synagogue, or other place of worship,

                                      x.      In plain view of the public

                                    xi.      Where exposure to marijuana smoke significantly adversely affects the health, safety or welfare of children.

Limitations of act.

50-46-320(2), MCA

A patient, provider or MIPP may not grow marijuana or manufacture it in a place visible from the street or other public area.

Limitations of act.

50-46-320(3), MCA

A hospice or residential care facility may adopt a policy that allows use of marijuana by a patient.

Limitations of act.

50-46-320(4), MCA

Nothing in the law requires:

(a)     A government assistance program, state employee benefits program,  or insurance company to cover costs of the use of medical marijuana by a patient

(b)    An employer to accommodate use

(c)     A school or postsecondary school to allow a patient to participate in extracurricular activities

(d)    A landlord to allow a tenant who is a patient, provider or MIPP to grow or manufacture medical marijuana, or a patient to consume it.

Limitations of act.

50-46-320(5), MCA

Language in the medical marijuana act cannot be used to:

(a)     Prohibit an employer to prohibit use of marijuana for a condition,

(b)    Create a reason to sue an employer for wrongful discharge or discrimination

Limitations of act.

50-46-320(6), MCA

The medical marijuana law cannot be used to justify a provider or MIPP to consume marijuana or prevent that person for being charged for use of marijuana or paraphernalia for personal use.

Limitations of act.

50-46-320(7), MCA

(a)     A copy who has reasonable cause to believe a person with a card is DUI may apply for a search warrant and require that person to submit a blood sample.

  • If the person tests at 5 ng/mL may be charged with DUI.

(b)    A violation of this restriction means their card is revoked if he or she is found or pleads to any offense related to DUI. The revocation must be for the same period of time as the person’s driver’s license is suspended

(c)     If that person’s card is up for renewal during that period, it may not be renewed until the period has elapsed.

  • A new set of paperwork will need to be submitted just as with any renewal

Prohibitions on physician affiliation with providers and marijuana-infused products providers -- sanctions. 

50-46-327, MCA

 

(1)      

(a)     A recommending physician may not

(i)  Accept anything of value from a provider or MIPP

(ii)   Offer a discount or other thing of value to a person who agrees to use a particular provider or MIPP.

(iii) Perform an exam for a recommendation at a location where marijuana is cultivated or manufactured

(b)    This does not prevent a recommending physician from accepting a fee for providing medical care to a provider or MIPP if it is the same fee the doctor would provide to other patients for the same service

(2)     DPHHS may refer a physician to the Board of Medical examiners if it has cause to believe the physician:

  • Has violated the provisions or rules adopted by a state agency, or
  • Has not met the standard of care

(3)     A violation of this section is unprofessional conduct.

  • If the Board find a violation, it must restrict the physician from making other recommendations and notify DPHHS of the sanction

(4)     If the Board BELIEVES a doctor’s practice MAY harm public health, safety, or welfare, the Board may restrict a physician’s ability to make recommendations without a hearing.      

Local government authority to regulate.

50-46-328, MCA

 

(1)     Local governments may regulate providers and MIPPs to protect health, safety and welfare of it citizens. Regulation can include inspections of grows or manufacturing locations to ensure compliance with requirements.

(2)     Local governments may ban providers and MIPPs from operating as storefront businesses.

Inspection procedures.

50-46-329, MCA

 

(1)     DPHHS, state, and local law enforcement may conduct unannounced inspections of registered premises.

(2)     Information

(a)     Providers and MIPPs must keep records necessary to show transactions with cardholders

  • The records must be open for inspection by DPHHS, state and local law enforcement during normal business hours

(b)    DPHHS may require information it considers necessary for administration

(3)     Premise requirements

(a)     All locations on the premises are subject to entry for the purpose of inspection

(b)    If any part is locked, it must be made available for inspection without delay upon request

(4)     A provider or MIPP must maintain records showing names and registry ID of patients to receive plants, seedlings, usable marijuana, or marijuana-infused products and the quantities of each.

Unlawful conduct by cardholders -- penalties.

50-46-330, MCA

 

(1)     DPHHS may revoke and may not reissue cards to a person who:

(a)     Is convicted of a drug offense

(b)    Allows another person to be in possession of the person’s

(i)  Registry ID card

(ii)   Plants, seedlings, usable marijuana or marijuana-infused products

(c)     Fails to cooperate with DPHHS concerning an investigation or inspection if the person is cultivating or manufacturing

(2)     Unless the person has committed a violation of a crime specified in Title 45, a patient, provider or marijuana-infused products provider who violates the medical marijuana act is punishable by:

  • A fine of up to $500, and
  • Jail up to 6 months

If the person has violated Title 45, he or she must be charged with the offense listed there.

Fraudulent representation -- penalties.

50-46-331, MCA

(1)     A person who commits a fraud by misrepresenting that the person is a cardholder, provider or MIPP is guilty of a misdemeanor punishable by

  • Jail of up to 1 year, and
  • A fine of up to $1,000

(2)     A physician who misrepresents information required under 50-46-310 is guilty of a misdemeanor punishable by

  • Jail of up to 1 year, and
  • A fine of up to $1,000

(3)     A person convicted of one of these offenses may not be registered as a provider or MIPP.

Confidentiality of registry information -- penalty.

50-46-332, MCA

(1)     Unless allowed under 37-3-203, a person including an employee of DPHHS commits the offense of disclosure of confidential information related to registry information if the person knowingly or purposely discloses confidential information in violation of the medical marijuana law

(2)     If convicted, the person could face penalties of

  • Up to 6 months in jail, and
  • Up to $1000 in fines

Law enforcement authority.

50-46-339, MCA

The medical marijuana act does not limit law enforcement’s ability to investigate unlawful activity related to a registry ID card.

 

Forfeiture.

50-46-340, MCA

 

(1)     Marijuana or paraphernalia seized by law enforcement from a person claiming protections under the medical marijuana law must be returned to that person immediately if the person is determined to be in compliance

(2)     Law enforcement is not responsible for care and maintenance of any mature plants or seedlings

Advertising prohibited.

50-46-341, MCA

No person with a card (patients, providers, MIPPs) may advertise marijuana or marijuana-related products in any medium, including electronic.

 

Hotline.

50-46-342, MCA

 

(1)     DPHHS must set up a phone line to receive reports of suspected abuse of the medical marijuana law

(2)     DPHHS may

(a)     Investigate reports, or

(b)    Refer the report to law enforcement

Legislative monitoring.

50-46-343, MCA

 

(1)     The Children, Families, Health, and Human Services Interim Committee must provide oversight of DPHHS activities related to registrations and issues related to cultivation, manufacture and use of marijuana under the medical marijuana law.

(2)     The committee must identify issues likely to require future legislative attention and develop legislation to present to the next regular session of the legislature.

Rulemaking authority -- fees.

50-46-344, MCA

 

(1)     DPHHS must adopt agency rules to implement and administer the medical marijuana law including:

(a)     The manner in which the agency will consider applications for patients, providers, and MIPPs

(b)    The acceptable forms of proof of residency

(c)     Procedures for obtaining fingerprints

(d)    Other rules as necessary

(2)     DPHHS must establish application and renewal fees sufficient to offset all expenses in implementing and administering the medical marijuana act.