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History & Legal Challenges
Constitutional Challenge to the Current Medical Marijuana Law in Montana
In 2011, the Montana legislature attempted to repeal the popular state medical marijuana law in effect at the time, which had been adopted in the state by voter initiative in 2004.
The legislature’s first attempt at repeal that year, HB 161, failed when Governor Brian Schweitzer vetoed the bill. In the days leading up to the veto, it became clear a veto was likely, and the legislature hastily assembled SB 423, a slap-dash attempt to render the state medical marijuana unworkable, just short of outright repeal.
The bill passed on April 28, 2011, and the Governor, rather than sign it, allowed it to take effect without his signature. The law was immediately challenged in court as unconstitutional by a newly-formed group called the Montana Cannabis Industry Association (the “MTCIA”). This page provides a roadmap to the main documents filed by the industry group, the state’s Attorney General, and the courts involved.
The MTCIA argued that the entire law should be invalidated. If the law went into effect in its entirety, it would eliminate virtually all medical marijuana caregivers, the backbone of a program in which most patients are either too sick or otherwise unable to grow their own marijuana.
The MTCIA requested that the law be blocked at the outset of the case, and an early battle ensued. Following a hearing, the judge decided not to block the entire law, but he did agree to block the most destructive provisions in the form of an injunction. The state Attorney General appealed some parts of the injunction to the Montana Supreme Court. He acknowledged that other blocked parts of the law were so clearly unconstitutional that it was not worth fighting the ruling on those provisions.The Montana Supreme Court determined that the lower court did not apply the correct constitutional analysis and overturned the injunction. It was then sent it back to the district court for further consideration, using a new standard set by the Montana Supreme Court for a revised analysis. Even under the new standard, however, the district court nonetheless agreed that the law was offensive to the Montana constitution, and re-imposed the same injunction. Today, both sides are preparing for a final hearing on the merits of the case in May of 2014.
Document
File Date
Purpose
5/13/11
Requested that the district court declare the law is unconstitutional, invalidate it, and prevent the law from going into effect following the final hearing.
5/13/11
By default, a court that grants an injunction does so after a final hearing, which might take place a year or more after a case begins. A “preliminary injunction” asks the court to set an emergency hearing and take action to block an event at the outset of the case.
5/13/11
Since it may take days or weeks before an emergency hearing can be held, a “temporary restraining order” can prevent the law from taking effect before a hearing on the preliminary injunction can be held.
6/15/11
Substantially similar to original complaint, but addressed some housekeeping functions not addressed in the original Complaint and expanded on some arguments.
6/30/2011
The order in which the judge partially blocked the medical marijuana law.
11/16/11
State AG appealed the preliminary injunction to the State Supreme Court, claiming the lower court applied the wrong constitutional review standard.
1/17/2012
MTCIA responded to the State AG’s request for appeal, and asked for its own review, arguing that the lower court did not go far enough by not blocking the entire law.
9/11/2012
The Montana Supreme Court overturned district court’s preliminary injunction and imposed a new standard for the lower court to use in reconsidering a new preliminary injunction.
District Court’s Order Re-imposing preliminary injunction (PDF)
1/16/13
A year and a half after the first preliminary hearing, the district court again found the law unconstitutional and blocked the same provisions again.
SUPREME COURT RULINGS ANALYSIS
In a string of rulings, the Montana Supreme Court took a harsh stand against protections and provisions contained in the former medical marijuana law. These decisions also directly affect anyone who is currently or may eventually be charged for violating the former law. Under Montana law, anyone charged with a criminal offense is subject to the law in effect at the time at the time of the alleged offense. Because felony charges can be brought for up to five years from the date of the activity at issue, providers who were operating under the former law will be subject to the legal interpretations offered by the Montana Supreme Court today in these recent cases.
State v. Johnson, 2012 MT 101. Decided May 8, 2012.
Bottom Line
The protections of the original medical marijuana law only apply when a patient obtains marijuana from his or her listed caregiver.
Case Summary
This case originated in Park County. On August 8, 2010, the defendant was pulled over during a traffic stop. The officer believed she may have been impaired while driving. At the time, the former medical marijuana law under I-148 was in effect. The driver was identified as a valid medical marijuana patient and was in possession of less than an ounce of marijuana. Upon further investigation, it came to light that the patient’s current medical marijuana caregiver did not provide the marijuana to the patient – rather the patient obtained marijuana from another source because the patients current provider, her father, was not yet in a position to provide marijuana because the grow operation was not yet up and running.
The driver was charged with criminal possession of a dangerous drug along with other charges including DUI. The driver was not charged for possession of drug paraphernalia because of the card status, but was charged with possession of marijuana because the source for her marijuana was not her listed caregiver.
The Justice Court in Park County found her guilty on the possession charge (as well as the other charges) and the matter was appealed to the District Court in Park County.
In district court, the driver filed a motion to dismiss the possession charge because as a medical marijuana patient, she could not be arrested or charged for possession under the current law at the time. The district court denied the motion and proceeded with the case. While the driver was found not guilty of some of the charges, she was convicted of possession. She appealed to the Montana Supreme Court.
The Supreme Court determined that despite the clear language of 50-46-201, when read in conjunction with the other provisions of the medical marijuana law, it said that the medical marijuana act limited patients to possession of marijuana provided by their listed caregiver. Therefore, marijuana a person possesses is not protected by the former law if it was obtained from a source that was not the patient’s caregiver.
The affirmative defense, located at 50-46-206, also was raised in the lower court however the Supreme Court ruled that the driver failed to prove the elements of the defense. It isn’t enough to simply raise it as a defense – it must be proven in court to be effective.
MMGA v. Corrigan, 2012 MT 146. Decided July 6, 2012.
Bottom Line
Caregivers cannot provide marijuana to other caregivers or work for them and perform duties consistent with “medical use” on their behalf under the former medical marijuana law.
Case Summary
The factual basis for this case is somewhat complicated. Two couriers were stopped by law enforcement and charged with felony possession. The couriers wanted to introduce testimony at their trials that they were hired by caregivers and should have been protected by an area of the law called “agency.” Where an agent works on another’s behalf, he or she is protected by the law just like the employer is. The caregivers had worked out a transaction for the sale of marijuana between themselves, and because it was not clear if the medical marijuana act authorized caregiver-to-caregiver transactions, it was not clear if the caregivers could testify at trial without incriminating themselves. Unlike the typical cases going to the Montana Supreme Court seeking guidance on the provisions of the medical marijuana act, this case was a civil request seeking the court’s interpretation, as opposed to a criminal case.
The Supreme Court ruled that caregivers may not transact with other caregivers . In doing so, it relied on language of the former act found at 50-46-103(4)(a), which states that a caregiver, in order to obtain a card from the state, must sign a statement that he or she will only provide marijuana to qualifying patients who have named the applicant as caregiver. The counter argument, that no caregiver can ever provide marijuana to patients if seeds or plants cannot legally be acquired from any source whatsoever, was not persuasive to the Supreme Court in light of the “clear and unambiguous” language above. The further argument, that this rule is not changed when the caregivers are in an employment relationship does not change this restriction on the prohibition of providing marijuana to other caregivers. The Supreme Court applied this rule both to the sale or transfer of marijuana, as well as for relationships in which one caregiver grows marijuana for another caregiver.
State v. Pirello, 2012 MT 155. Decided July 20, 2012.
Bottom Line
Hashish (and presumably kief) as well as hash oil are not considered useable marijuana under the former act, and are therefore not protected.
Case Summary
A driver in Mineral County was changing a flat tire in the median of Interstate 90. A law enforcement officer stopped to “assist” the driver and detected the order of burnt marijuana eminating from the vehicle, saw marijuana in the vehicle, and noticed the driver had red, watery eyes.
The driver was from the State of Washington. He was in possession of several baggies of marijuana, several joints, and two bottles of hash oil. The driver was charged with felony possession for the hash oil, misdemeanor possession for the marijuana, misdemeanor possession of paraphernalia, and DUI. The driver moved to dismiss the charge of felony possession for the hash oil, which was denied by the district court. The driver pled guilty to the remaining charges, but reserved the right to appeal the denial of the motion to dismiss, which was then appealed to the Montana Supreme Court.
On appeal, the driver claimed that the former medical marijuana law provided an exception for “usable marijuana” which included hashish (and hash oil) because it falls under the description “any mixture or preparation of marijuana.” In the alternate, he also claimed that the term itself was unconstitutionally vague.
The Supreme Court ruled against this interpretation. It relied on the definitions found in the Montana Controlled Substances Act, which defined marijuana and separately defined “hashish” as a separate drug. Hashish “as distinguished from marijuana, means the mechanically processed or extracted plant material that contains tetrahydrocannabinol (THC) and is composed of resin from the cannabis plant.” Section 50-32-101(4).
Despite the fact that the medical marijuana act defined usable marijuana as “the dried leaves and flowers of marijuana and any mixture or preparation of marijuana” in Section 50-46-102(10), the Supreme Court was unwilling to apply this definition to include hash oil or hashish. The basis for this distinction is that in order for something to be “usable marijuana” it must qualify as “marijuana,” which was defined not in the medical marijuana act, but in the criminal provisions found in the Montana Controlled Substances Act. Because hashish was separately defined, it did not qualify as “useable marijuana” as defined in the medical marijuana act itself.
Further, the argument that the medical marijuana act was unconstitutionally vague also fell short in the eyes of the Montana Supreme Court, because it determined these definitions were “clear and unambiguous” on their face.
What Does This Mean?
These cases have several important effects on activity under the former medical marijuana law. First of all, if SB-423 is repealed and the prior law goes back into effect, the landscape will be radically different than it was in 2009 and 2010.
The source of marijuana for a patient will determine whether or not it is legal to possess, regardless of patient status, and despite the plain protections for patients found in the law. Will patients be required to prove where they got their medical marijuana? We don’t know yet.
- Caregivers cannot obtain marijuana plants or seeds from anywhere or help one another in the event of crop failure, despite the fact that crop failure is fairly common, and everyone who grows marijuana has to get it from somewhere aside from divine intervention.
- Finally, hash, kief and hash oil are simply illegal under any circumstances. Given that nearly all forms of marijuana-infused edibles – favored by the medical community – are derived from keep or hash oil, it calls into question whether they can be produced at all without committing a felony.
Clearly the Supreme Court is unwilling to find workable solutions to difficult and important questions raised under medical marijuana laws. This means that we have to help the legislature create a workable solution, something we know from last session their leadership seems unwilling to do. Clearly Montanan’s want medical marijuana to be available to patients under certain circumstances, and patients are often unable to grow their own for a wide variety of reason. Just as clearly, the legislature and the courts are unwilling to make allowances for that process to take place. Until the voters take control of this issue, we should expect our elected officials to continue to work against the will of the people.
Marijuana laws are changing in our country and they will continue to change in Montana whether our elected officials understand it or not. Our governments, both state and federal, continue to deny the clear trend. In the end, medical marijuana will be a reasonable solution for those who need it. It is up to us to continue to soldier on in this battle until it becomes a reality. We owe it to the sick patients in the state to find a solution that will actually work. Our first task is to repeal SB-423. Then the challenge moves to the legislature to develop a law that isn’t riddled with impossibilities.
Patients need access. Providers need to be able to provide. It isn’t that complicated.
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Sierra Boehm published Does Montana recognize patients from other states? in Medical Marijuana FAQ 2014-01-13 14:28:20 -0700
Does Montana recognize patients from other states?
A:No. There is no reciprocity provision under the current law.
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Medical Marijuana FAQ
This FAQ is not legal advice. If you have a specific question about how the law applies to you, consult with an attorney. As importantly, the cultivation, possession, and distribution of any amount of marijuana is illegal under federal law. The rules discussed here are based on current state laws in Montana only.
We highly recommend you read the law. You can find a handy summary of the provisions here.
- Which state agency or agencies administer the program?
- When is a patient protected under the law?
- Does Montana recognize patients from other states?
- Is there an affirmative defense in the new law?
- Hasn’t the law been blocked or something?
- How do I become a cardholder?
- Can I grow my own if I designate a provider?
- If I am a cardholder, can I provide marijuana to another cardholder?
- Can I be a cardholder if I am on supervision?
- If I want to grow my own, how do I get plants or seeds?
- How many plants can I have as a cardholder?
- How do I become a provider or a marijuana-infused products provider (MIPP)?
- If I can only have 1 ounce, what am I supposed to do at harvest if I grow my own?
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Sierra Boehm published Which state agency or agencies administer the program? in Medical Marijuana FAQ 2014-01-13 14:17:56 -0700
Which state agency or agencies administer the program?
A:The Montana Department of Public Health and Human Services (DPHHS) runs the program for issuing cards, but there is no government oversight of the cultivation of marijuana or its sale to patients.
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Ending Prohibition in Montana
The war on marijuana is now entering its final stages, and Montana NORML is gearing up to play its part. We are actively planning a voter initiative campaign for the 2016 presidential election that would tax and regulate marijuana for adults similar to Colorado’s program. We now have a financial commitment of over $500,000 toward that effort from a leading marijuana advocacy group interested in funding that campaign!But it takes more than money, and there is much work to do. Real change can only happen if it is based on the time, energy and commitment of our supporters. In coming weeks, we will be asking for your help in forming and running several key groups to support our state-wide, multi-year campaign to put marijuana prohibition in the ground permanently.
Read more
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Why Reform?
If you are unsure about why reform is important, here are just a few of the many common sense reasons change would benefit everyone:
- Marijuana prohibition has been just as ineffective, inefficient, and problematic as alcohol prohibition. Most Americans agree it is time to replace this failed policy with a more sensible approach.
- Marijuana is objectively less harmful than alcohol. It is less toxic, less addictive, and less harmful to the body, and it does not contribute to violent and reckless behavior. Adults should not be punished for choosing to use the safer substance.
- By regulating marijuana like alcohol, we can take sales out of the hands of drug cartels in the underground market and put them behind the counters of state-licensed businesses that are creating legitimate jobs and paying taxes.
- Law enforcement officials’ time and resources would be better spent addressing violent and otherwise serious crimes instead of arresting and prosecuting adults for using marijuana.
Please join with us and the majority of Americans who believe it’s time to end this ineffective, costly and harmful strategy that wastes lives and money.
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Pledge your support for Montana NORML
According to a new Gallup poll, 58 percent of Americans support legalizing marijuana—the largest percentage ever in that survey.Gallup says: "Support for legalization has jumped 10 percentage points since last November and the legal momentum shows no sign of abating."
Now is the time to be active and informed, the tides are turning. The states of Colorado and Washington have broken the barrier. Do you support Montana NORML's mission to make Montana the next state to reform it's marijuana laws?
Pledge your vote
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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.
Patients 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”
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”
- Any facility or program that is described in 53-1-202 and to which a person may be ordered by court.
“Debilitating medical condition”
(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”
The department of public health and human services (DPHHS)
“Local government”
A county, a consolidated government, or an incorporated city or town
“Marijuana”
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”
(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”
(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”
A harvestable female marijuana plant that is flowering.
“Paraphernalia”
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”
(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”
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”
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”
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”
- 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”
(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:
- the residence of the minor's parents;
- if one of the parents is deceased or the parents do not share the same residence, the residence of the parent having legal custody;
- if neither parent has legal custody, the residence of the legal guardian or custodian appointed by a court of competent jurisdiction; or
- 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”
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”
- A marijuana plant that has no flowers and is less than 12 inches in height and 12 inches in diameter.
“ Standard of care”
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”
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”
(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”
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.
(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.
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.
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.
(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.
Rejection of an application is considered final, but may be fought in court
Department responsibilities -- issuance of cards -- confidentiality -- reports.
(a) ID cards expire 1 year after date issued unless
- Physician sets limit shorter than 1 year
- 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.
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.
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.
- 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.
(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.
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.
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.
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.
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
- Treating physician or referral physician explained risks and benefits of marijuana to minor and parent or guardian
- Minor’s parent or guardian
- Consents to use of marijuana by minor
- Agrees to serve as MMIP
- Agrees to control acquisition or marijuana and dosage and frequency of use by minor
- 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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
All marijuana used must be grown and processed in Montana.
Provider types -- requirements -- limitations -- activities.
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.
(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.
(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.
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.
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.
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.
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.
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.
(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.
(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.
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.
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.
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.
(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.
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.
Getting a card after arrest or a criminal charge is not a defense to the charge.
Legal protections -- allowable amounts.
(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.
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.
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.
A hospice or residential care facility may adopt a policy that allows use of marijuana by a patient.
Limitations of act.
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.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
The medical marijuana act does not limit law enforcement’s ability to investigate unlawful activity related to a registry ID card.
Forfeiture.
(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.
No person with a card (patients, providers, MIPPs) may advertise marijuana or marijuana-related products in any medium, including electronic.
Hotline.
(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.
(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.
(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.
Sierra Boehm
Web designer, political activist. Member, Montana NORML Communications Committee.
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