requires two-thirds majority vote (§ 11)                                                                                                               

                                                                                                  

 

Assembly Bill No. 503–Committee on
Health and Human Services

 

(On Behalf of the Department of Administration)

 

March 24, 2003

____________

 

Referred to Committee on Health and Human Services

 

SUMMARY—Revises provisions relating to medical use of marijuana. (BDR 40‑1248)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to the medical use of marijuana; defining the term “propagation facility”; expanding the definition of “attending physician” to include certain physicians who are licensed to practice osteopathic medicine; revising the definition of “usable marijuana” to include the seeds of a plant of the genus Cannabis; providing that, with the written authorization of the State Department of Agriculture, not more than two persons who engage in the medical use of marijuana may use a single propagation facility to produce marijuana for both such persons; providing that such a single propagation facility must not contain an amount of marijuana which exceeds the amount allowed for two persons; requiring that a person with a qualifying medical condition to whom the Department issues a registry identification card be a resident of this state; revising the types of information which must be set forth upon a registry identification card; authorizing the Department to establish by regulation certain fees relating to the application for and issuance of a registry identification card; and providing other matters properly relating thereto.

 

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 453A of NRS is hereby amended by

1-2  adding thereto a new section to read as follows:

1-3  “Propagation facility” means a parcel of privately owned real

1-4  property on which a person who holds a valid registry

1-5  identification card issued to him pursuant to NRS 453A.220 or

1-6  453A.250 produces marijuana for medical use in accordance with

1-7  this chapter.

1-8  Sec. 2.  NRS 453A.010 is hereby amended to read as follows:

1-9  453A.010  As used in this chapter, unless the context otherwise

1-10  requires, the words and terms defined in NRS 453A.020 to

1-11  453A.170, inclusive, and section 1 of this act have the meanings

1-12  ascribed to them in those sections.

1-13      Sec. 3.  NRS 453A.030 is hereby amended to read as follows:

1-14      453A.030  “Attending physician” means a physician who:

1-15      1.  Is licensed to practice [medicine] :

1-16      (a) Medicine pursuant to the provisions of chapter 630 of NRS;

1-17  or

1-18      (b) Osteopathic medicine pursuant to the provisions of chapter

1-19  633 of NRS; and

1-20      2.  Has [primary] responsibility for the care and treatment of a

1-21  person diagnosed with a chronic or debilitating medical condition.

1-22      Sec. 4.  NRS 453A.160 is hereby amended to read as follows:

1-23      453A.160  1.  “Usable marijuana” means [the] :

1-24      (a) The dried leaves and flowers of a plant of the genus

1-25  Cannabis, and any mixture or preparation thereof, that are

1-26  appropriate for the medical use of marijuana[.] ; and

1-27      (b) The seeds of a plant of the genus Cannabis.

1-28      2.  The term does not include the [seeds,] stalks and roots of the

1-29  plant.

1-30      Sec. 5.  NRS 453A.200 is hereby amended to read as follows:

1-31      453A.200  1.  Except as otherwise provided in this section and

1-32  NRS 453A.300, a person who holds a valid registry identification

1-33  card issued to him pursuant to NRS 453A.220 or 453A.250 is

1-34  exempt from state prosecution for:

1-35      (a) Possession, delivery or production of marijuana;

1-36      (b) Possession or delivery of drug paraphernalia;

1-37      (c) Aiding and abetting another in the possession, delivery or

1-38  production of marijuana;

1-39      (d) Aiding and abetting another in the possession or delivery of

1-40  drug paraphernalia;

1-41      (e) Any combination of the acts described in paragraphs (a) to

1-42  (d), inclusive; and

2-1  (f) Any other criminal offense in which the possession, delivery

2-2  or production of marijuana or the possession or delivery of drug

2-3  paraphernalia is an element.

2-4  2.  In addition to the provisions of subsection 1, no person may

2-5  be subject to state prosecution for constructive possession,

2-6  conspiracy or any other criminal offense solely for being in the

2-7  presence or vicinity of the medical use of marijuana in accordance

2-8  with the provisions of this chapter.

2-9  3.  [The] Except as otherwise provided in subsection 4, the

2-10  exemption from state prosecution set forth in subsection 1 applies

2-11  only to the extent that a person who holds a registry identification

2-12  card issued to him pursuant to paragraph (a) of subsection 1 of NRS

2-13  453A.220 and the designated primary caregiver, if any, of such a

2-14  person:

2-15      (a) Engage in or assist in, as applicable, the medical use of

2-16  marijuana in accordance with the provisions of this chapter as

2-17  justified to mitigate the symptoms or effects of the person’s chronic

2-18  or debilitating medical condition; and

2-19      (b) Do not, at any one time, collectively possess, deliver or

2-20  produce more than:

2-21          (1) One ounce of usable marijuana;

2-22          (2) Three mature marijuana plants; and

2-23          (3) Four immature marijuana plants.

2-24      4.  With the written authorization of the Department and

2-25  except as otherwise provided in this subsection, not more than two

2-26  persons who hold registry identification cards issued to them

2-27  pursuant to paragraph (a) of subsection 1 of NRS 453A.220 and

2-28  their designated primary caregivers, if any, may use a single

2-29  propagation facility to produce marijuana for both such persons

2-30  who hold registry identification cards issued to them pursuant to

2-31  paragraph (a) of subsection 1 of NRS 453A.220. If the use of a

2-32  single propagation facility to produce marijuana for not more

2-33  than two persons is authorized by the Department pursuant to this

2-34  subsection:

2-35      (a) The propagation facility must not, at any one time, contain

2-36  more than:

2-37          (1) Two ounces of usable marijuana;

2-38          (2) Six mature marijuana plants; and

2-39          (3) Eight immature marijuana plants; and

2-40      (b) The exemption from state prosecution set forth in

2-41  subsection 1 applies only to the extent that the persons who hold

2-42  registry identification cards issued to them pursuant to paragraph

2-43  (a) of subsection 1 of NRS 453A.220 and the designated primary

2-44  caregivers, if any, of such persons:

3-1       (1) Engage in or assist in, as applicable, the medical use of

3-2  marijuana in accordance with the provisions of this chapter as

3-3  justified to mitigate the symptoms or effects of the persons’

3-4  chronic or debilitating medical conditions; and

3-5       (2) Do not, at any one time, collectively possess, deliver or

3-6  produce more than:

3-7           (I) Two ounces of usable marijuana;

3-8           (II) Six mature marijuana plants; and

3-9           (III) Eight immature marijuana plants.

3-10      5.  If the persons described in subsection 3 possess, deliver or

3-11  produce marijuana in an amount which exceeds the amount

3-12  described in paragraph (b) of that subsection[,] or if the persons

3-13  described in subsection 4 possess, deliver or produce marijuana in

3-14  an amount which exceeds the amount described in subparagraph

3-15  (2) of paragraph (b) of that subsection, those persons:

3-16      (a) Are not exempt from state prosecution for possession,

3-17  delivery or production of marijuana.

3-18      (b) May establish an affirmative defense to charges of

3-19  possession, delivery or production of marijuana, or any combination

3-20  of those acts, in the manner set forth in NRS 453A.310.

3-21      Sec. 6.  NRS 453A.210 is hereby amended to read as follows:

3-22      453A.210  1.  The Department shall establish and maintain a

3-23  program for the issuance of registry identification cards to persons

3-24  who meet the requirements of this section.

3-25      2.  Except as otherwise provided in subsections 3 and 5, the

3-26  Department or its designee shall issue a registry identification card

3-27  to a person who is a resident of this state and who submits an

3-28  application on a form prescribed by the Department accompanied by

3-29  the following:

3-30      (a) Valid, written documentation from the person’s attending

3-31  physician stating that:

3-32          (1) The person has been diagnosed with a chronic or

3-33  debilitating medical condition;

3-34          (2) The medical use of marijuana may mitigate the symptoms

3-35  or effects of that condition; and

3-36          (3) The attending physician has explained the possible risks

3-37  and benefits of the medical use of marijuana;

3-38      (b) The name, address, telephone number, social security

3-39  number and date of birth of the person;

3-40      (c) Proof satisfactory to the Department that the person is a

3-41  resident of this state;

3-42      (d) The name, address and telephone number of the person’s

3-43  attending physician; and

3-44      [(d)] (e) If the person elects to designate a primary caregiver at

3-45  the time of application:

4-1       (1) The name, address, telephone number and social security

4-2  number of the designated primary caregiver; and

4-3       (2) A written, signed statement from his attending physician

4-4  in which the attending physician approves of the designation of the

4-5  primary caregiver.

4-6  3.  The Department or its designee shall issue a registry

4-7  identification card to a person who is under 18 years of age if:

4-8  (a) The person submits the materials required pursuant to

4-9  subsection 2; and

4-10      (b) The custodial parent or legal guardian with responsibility for

4-11  health care decisions for the person under 18 years of age signs a

4-12  written statement setting forth that:

4-13          (1) The attending physician of the person under 18 years of

4-14  age has explained to that person and to the custodial parent or legal

4-15  guardian with responsibility for health care decisions for the person

4-16  under 18 years of age the possible risks and benefits of the medical

4-17  use of marijuana;

4-18          (2) The custodial parent or legal guardian with responsibility

4-19  for health care decisions for the person under 18 years of age

4-20  consents to the use of marijuana by the person under 18 years of age

4-21  for medical purposes;

4-22          (3) The custodial parent or legal guardian with responsibility

4-23  for health care decisions for the person under 18 years of age agrees

4-24  to serve as the designated primary caregiver for the person under 18

4-25  years of age; and

4-26          (4) The custodial parent or legal guardian with responsibility

4-27  for health care decisions for the person under 18 years of age agrees

4-28  to control the acquisition of marijuana and the dosage and frequency

4-29  of use by the person under 18 years of age.

4-30      4.  The form prescribed by the Department to be used by a

4-31  person applying for a registry identification card pursuant to this

4-32  section must be a form that is in quintuplicate. Upon receipt of an

4-33  application that is completed and submitted pursuant to this section,

4-34  the Department shall:

4-35      (a) Record on the application the date on which it was received;

4-36      (b) Retain one copy of the application for the records of the

4-37  Department; and

4-38      (c) Distribute the other four copies of the application in the

4-39  following manner:

4-40          (1) One copy to the person who submitted the application;

4-41          (2) One copy to the applicant’s designated primary caregiver,

4-42  if any;

4-43          (3) One copy to the Central Repository for Nevada Records

4-44  of Criminal History; and

4-45          (4) One copy to the Board of Medical Examiners.

5-1  The Central Repository for Nevada Records of Criminal History

5-2  shall report to the Department its findings as to the criminal history,

5-3  if any, of an applicant within 15 days after receiving a copy of an

5-4  application pursuant to subparagraph (3) of paragraph (c). The

5-5  Board of Medical Examiners shall report to the Department its

5-6  findings as to the licensure and standing of the applicant’s attending

5-7  physician within 15 days after receiving a copy of an application

5-8  pursuant to subparagraph (4) of paragraph (c).

5-9  5.  The Department shall verify the information contained in an

5-10  application submitted pursuant to this section and shall approve or

5-11  deny an application within 30 days after receiving the application.

5-12  The Department may contact an applicant, his attending physician

5-13  and designated primary caregiver, if any, by telephone to determine

5-14  that the information provided on or accompanying the application is

5-15  accurate. The Department may deny an application only on the

5-16  following grounds:

5-17      (a) The applicant failed to provide the information required

5-18  pursuant to subsections 2 and 3 to:

5-19          (1) Establish his chronic or debilitating medical condition; or

5-20          (2) Document his consultation with an attending physician

5-21  regarding the medical use of marijuana in connection with that

5-22  condition;

5-23      (b) The applicant failed to comply with regulations adopted by

5-24  the Department, including, without limitation, the regulations

5-25  adopted by the Director pursuant to NRS 453A.740;

5-26      (c) The Department determines that the information provided by

5-27  the applicant was falsified;

5-28      (d) The Department determines that the attending physician of

5-29  the applicant is not licensed to practice medicine in this state or is

5-30  not in good standing, as reported by the Board of Medical

5-31  Examiners;

5-32      (e) The Department determines that the applicant, or his

5-33  designated primary caregiver, if applicable, has been convicted of

5-34  knowingly or intentionally selling a controlled substance;

5-35      (f) The Department has prohibited the applicant from obtaining

5-36  or using a registry identification card pursuant to subsection 2 of

5-37  NRS 453A.300; or

5-38      (g) In the case of a person under 18 years of age, the custodial

5-39  parent or legal guardian with responsibility for health care decisions

5-40  for the person has not signed the written statement required pursuant

5-41  to paragraph (b) of subsection 3.

5-42      6.  The decision of the Department to deny an application for a

5-43  registry identification card is a final decision for the purposes of

5-44  judicial review. Only the person whose application has been denied

5-45  or, in the case of a person under 18 years of age whose application

6-1  has been denied, the person’s parent or legal guardian, has standing

6-2  to contest the determination of the Department. A judicial review

6-3  authorized pursuant to this subsection must be limited to a

6-4  determination of whether the denial was arbitrary, capricious or

6-5  otherwise characterized by an abuse of discretion and must be

6-6  conducted in accordance with the procedures set forth in chapter

6-7  233B of NRS for reviewing a final decision of an agency.

6-8  7.  A person whose application has been denied may not

6-9  reapply for 6 months after the date of the denial, unless the

6-10  Department or a court of competent jurisdiction authorizes

6-11  reapplication in a shorter time.

6-12      8.  Except as otherwise provided in this subsection, if a person

6-13  has applied for a registry identification card pursuant to this section

6-14  and the Department has not yet approved or denied the application,

6-15  the person, and his designated primary caregiver, if any, shall be

6-16  deemed to hold a registry identification card upon the presentation

6-17  to a law enforcement officer of the copy of the application provided

6-18  to him pursuant to subsection 4. A person may not be deemed to

6-19  hold a registry identification card for a period of more than 30 days

6-20  after the date on which the Department received the application.

6-21      9.  As used in this section, “resident” has the meaning

6-22  ascribed to it in NRS 483.141.

6-23      Sec. 7.  NRS 453A.220 is hereby amended to read as follows:

6-24      453A.220  1.  If the Department approves an application

6-25  pursuant to subsection 5 of NRS 453A.210, the Department or its

6-26  designee shall, as soon as practicable after the Department approves

6-27  the application:

6-28      (a) Issue a serially numbered registry identification card to the

6-29  applicant; and

6-30      (b) If the applicant has designated a primary caregiver, issue a

6-31  serially numbered registry identification card to the designated

6-32  primary caregiver.

6-33      2.  A registry identification card issued pursuant to paragraph

6-34  (a) of subsection 1 must set forth:

6-35      (a) The name, address, photograph and date of birth of the

6-36  applicant;

6-37      (b) The date of issuance and date of expiration of the registry

6-38  identification card;

6-39      (c) The [name and address of] identification number assigned

6-40  by the Department to the applicant’s designated primary caregiver,

6-41  if any; and

6-42      (d) Any other information prescribed by regulation of the

6-43  Department.

6-44      3.  A registry identification card issued pursuant to paragraph

6-45  (b) of subsection 1 must set forth:

7-1  (a) The name, address and photograph of the designated primary

7-2  caregiver;

7-3  (b) The date of issuance and date of expiration of the registry

7-4  identification card;

7-5  (c) The [name and address of] identification number assigned

7-6  by the Department to the applicant for whom the person is the

7-7  designated primary caregiver; and

7-8  (d) Any other information prescribed by regulation of the

7-9  Department.

7-10      4.  A registry identification card issued pursuant to this section

7-11  is valid for a period of 1 year and may be renewed in accordance

7-12  with regulations adopted by the Department.

7-13      Sec. 8.  NRS 453A.250 is hereby amended to read as follows:

7-14      453A.250  1.  If a person who applies to the Department for a

7-15  registry identification card or to whom the Department or its

7-16  designee has issued a registry identification card pursuant to

7-17  paragraph (a) of subsection 1 of NRS 453A.220 desires to designate

7-18  a primary caregiver, the person must:

7-19      (a) To designate a primary caregiver at the time of application,

7-20  submit to the Department the information required pursuant to

7-21  paragraph [(d)] (e) of subsection 2 of NRS 453A.210; or

7-22      (b) To designate a primary caregiver after the Department or its

7-23  designee has issued a registry identification card to him, submit to

7-24  the Department the information required pursuant to subparagraph

7-25  (2) of paragraph (b) of subsection 1 of NRS 453A.230.

7-26      2.  A person may have only one designated primary caregiver at

7-27  any one time.

7-28      3.  If a person designates a primary caregiver after the time that

7-29  he initially applies for a registry identification card, the Department

7-30  or its designee shall, except as otherwise provided in subsection 5 of

7-31  NRS 453A.210, issue a registry identification card to the designated

7-32  primary caregiver as soon as practicable after receiving the

7-33  information submitted pursuant to paragraph (b) of subsection 1.

7-34      Sec. 9.  NRS 453A.310 is hereby amended to read as follows:

7-35      453A.310  1.  Except as otherwise provided in this section and

7-36  NRS 453A.300, it is an affirmative defense to a criminal charge of

7-37  possession, delivery or production of marijuana, or any other

7-38  criminal offense in which possession, delivery or production of

7-39  marijuana is an element, that the person charged with the offense:

7-40      (a) Is a person who:

7-41          (1) Has been diagnosed with a chronic or debilitating

7-42  medical condition within the 12-month period preceding his arrest

7-43  and has been advised by his attending physician that the medical use

7-44  of marijuana may mitigate the symptoms or effects of that chronic

7-45  or debilitating medical condition;

8-1       (2) Is engaged in the medical use of marijuana; and

8-2       (3) Possesses, delivers or produces marijuana only in the

8-3  amount described in [paragraph (b) of] subsection 3 or 4 of NRS

8-4  453A.200 , as applicable, or in excess of that amount if the person

8-5  proves by a preponderance of the evidence that the greater amount is

8-6  medically necessary as determined by the person’s attending

8-7  physician to mitigate the symptoms or effects of the person’s

8-8  chronic or debilitating medical condition; or

8-9  (b) Is a person who:

8-10          (1) Is assisting a person described in paragraph (a) in the

8-11  medical use of marijuana; and

8-12          (2) Possesses, delivers or produces marijuana only in the

8-13  amount described in [paragraph (b) of] subsection 3 or 4 of NRS

8-14  453A.200 , as applicable, or in excess of that amount if the person

8-15  proves by a preponderance of the evidence that the greater amount is

8-16  medically necessary as determined by the assisted person’s

8-17  attending physician to mitigate the symptoms or effects of the

8-18  assisted person’s chronic or debilitating medical condition.

8-19      2.  A person need not hold a registry identification card issued

8-20  to him by the Department or its designee pursuant to NRS 453A.220

8-21  or 453A.250 to assert an affirmative defense described in this

8-22  section.

8-23      3.  Except as otherwise provided in this section and in addition

8-24  to the affirmative defense described in subsection 1, a person

8-25  engaged or assisting in the medical use of marijuana who is charged

8-26  with a crime pertaining to the medical use of marijuana is not

8-27  precluded from:

8-28      (a) Asserting a defense of medical necessity; or

8-29      (b) Presenting evidence supporting the necessity of marijuana

8-30  for treatment of a specific disease or medical condition,

8-31  if the amount of marijuana at issue is not greater than the amount

8-32  described in [paragraph (b) of] subsection 3 or 4 of NRS 453A.200 ,

8-33  as applicable, and the person has taken steps to comply

8-34  substantially with the provisions of this chapter.

8-35      4.  A defendant who intends to offer an affirmative defense

8-36  described in this section shall, not less than 5 days before trial or at

8-37  such other time as the court directs, file and serve upon the

8-38  prosecuting attorney a written notice of his intent to claim the

8-39  affirmative defense. The written notice must:

8-40      (a) State specifically why the defendant believes he is entitled to

8-41  assert the affirmative defense; and

8-42      (b) Set forth the factual basis for the affirmative defense.

8-43  A defendant who fails to provide notice of his intent to claim an

8-44  affirmative defense as required pursuant to this subsection may not

9-1  assert the affirmative defense at trial unless the court, for good cause

9-2  shown, orders otherwise.

9-3  Sec. 10.  NRS 453A.400 is hereby amended to read as follows:

9-4  453A.400  1.  The fact that a person possesses a registry

9-5  identification card issued to him by the Department or its designee

9-6  pursuant to NRS 453A.220 or 453A.250 does not, alone:

9-7  (a) Constitute probable cause to search the person or his

9-8  property[;] , including, without limitation, a propagation facility;

9-9  or

9-10      (b) Subject the person or his property , including, without

9-11  limitation, a propagation facility, to inspection by any

9-12  governmental agency.

9-13      2.  Except as otherwise provided in this subsection, if officers

9-14  of a state or local law enforcement agency seize marijuana, drug

9-15  paraphernalia or other related property from a person engaged or

9-16  assisting in the medical use of marijuana:

9-17      (a) The law enforcement agency shall ensure that the marijuana,

9-18  drug paraphernalia or other related property is not destroyed while

9-19  in the possession of the law enforcement agency.

9-20      (b) Any property interest of the person from whom the

9-21  marijuana, drug paraphernalia or other related property was seized

9-22  must not be forfeited pursuant to any provision of law providing for

9-23  the forfeiture of property, except as part of a sentence imposed after

9-24  conviction of a criminal offense.

9-25      (c) Upon a determination by the district attorney of the county in

9-26  which the marijuana, drug paraphernalia or other related property

9-27  was seized, or his designee, that the person from whom the

9-28  marijuana, drug paraphernalia or other related property was seized is

9-29  engaging in or assisting in the medical use of marijuana in

9-30  accordance with the provisions of this chapter, the law enforcement

9-31  agency shall immediately return to that person any usable

9-32  marijuana, marijuana plants, drug paraphernalia or other related

9-33  property that was seized.

9-34  The provisions of this subsection do not require a law enforcement

9-35  agency to care for live marijuana plants.

9-36      3.  For the purposes of paragraph (c) of subsection 2, the

9-37  determination of a district attorney or his designee that a person is

9-38  engaging in or assisting in the medical use of marijuana in

9-39  accordance with the provisions of this chapter shall be deemed to be

9-40  evidenced by:

9-41      (a) A decision not to prosecute;

9-42      (b) The dismissal of charges; or

9-43      (c) Acquittal.

 

 

10-1      Sec. 11.  NRS 453A.740 is hereby amended to read as follows:

10-2      453A.740  The Director of the Department shall adopt such

10-3  regulations as the Director determines are necessary to carry out the

10-4  provisions of this chapter. The regulations must set forth, without

10-5  limitation:

10-6      1.  Procedures pursuant to which the State Department of

10-7  Agriculture will, in cooperation with the Department of Motor

10-8  Vehicles, cause a registry identification card to be prepared and

10-9  issued to a qualified person as a type of identification card described

10-10  in NRS 483.810 to 483.890, inclusive. The procedures described in

10-11  this subsection must provide that the State Department of

10-12  Agriculture will:

10-13     (a) Issue a registry identification card to a qualified person after

10-14  the card has been prepared by the Department of Motor Vehicles; or

10-15     (b) Designate the Department of Motor Vehicles to issue a

10-16  registry identification card to a person if:

10-17         (1) The person presents to the Department of Motor Vehicles

10-18  valid documentation issued by the State Department of Agriculture

10-19  indicating that the State Department of Agriculture has approved the

10-20  issuance of a registry identification card to the person; and

10-21         (2) The Department of Motor Vehicles, before issuing the

10-22  registry identification card, confirms by telephone or other reliable

10-23  means that the State Department of Agriculture has approved the

10-24  issuance of a registry identification card to the person.

10-25     2.  Criteria for determining whether a marijuana plant is a

10-26  mature marijuana plant or an immature marijuana plant.

10-27     3.  Fees for:

10-28     (a) Providing to an applicant an application for a registry

10-29  identification card, which fee must not exceed $50; and

10-30     (b) Processing and issuing a registry identification card, which

10-31  fee must not exceed $150.

10-32     Sec. 12.  This act becomes effective on July 1, 2003.

 

10-33  H