Medical Marijuana: Legislation this year

Several states, including Connecticutt, New Mexico, Texas, and Wisconsin, have medical marijuana statutes pending in their state legislatures this year. If any of these are enacted, the enacting states will be added to the twelve already having state medical marijuana laws.

I'm quoting the proposed Texas bill for two reasons: first, it's my state and I'm more familar with it; and second, it takes an affirmative defense approach that is different from the other states that have simply excluded marijuana for medical use from the coverage of their criminal statutes.

80R7115 MSE-D
By: Naishtat H.B. No. 1534


A BILL TO BE ENTITLED
AN ACT
relating to the medical use of marihuana.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 481.121, Health and Safety Code, is amended by adding Subsections (c) and (d) to read as follows:
(c) It is an affirmative defense to prosecution under Subsection (a) for the possession of marihuana that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.
(d) An agency, including a law enforcement agency, of this state or a political subdivision of this state may not initiate an administrative, civil, or criminal investigation into a physician licensed to practice medicine in this state on the ground that the physician discussed marihuana as a treatment option with a patient of the physician or made a written or oral statement that, in the physician's opinion, the potential benefits of marihuana would likely outweigh the health risks for a particular patient.
SECTION 2. Subchapter B, Chapter 164, Occupations Code, is amended by adding Section 164.0525 to read as follows:
Sec. 164.0525. MEDICAL USE OF MARIHUANA. A physician may not be denied any right or privilege or be subject to any disciplinary action solely for making a written or oral statement that, in the physician's professional opinion, the potential benefits of marihuana would likely outweigh the health risks for a particular patient.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.
SECTION 4. This Act takes effect September 1, 2007.

I foresee one major difference between the proposed Texas law and those the other states have passed. California, Colorado, and Oregon, which legalized medical marijuana, have all had trouble with law enforcement officers confiscating marijuana from legitimate patients and refusing to return it to them. The courts of all three states have ultimately ordered the marijuana returned to the patients.

The Texas statute, by merely excusing the act of possession, not the status of marijuana as a medicine, will still leave medical marijuana as contraband, subject to seizure by the police. This difference could lead to continuing harassment of bona fide patients.

Dennis Kocenich (sp?), D-Ohio is now chairman of the House committe with oversight of the subject and has promissed to introduce federal legislation creating an exemption from the Controlled Substances Act for medical marijuana in states that have enacted medical marijuana laws. Since he has replaced Mark Souder, a fanatical drug warrior, in that position, the bill, when introduced, will probably clear the committee. However, its fate in the House as a whole, in the Senate, and in front of the president's (this one doesn't deserve a capital letter) veto pen is still problematic.

The medical uses of marijuana are no longer in doubt; and its safety was never seriously questioned by anyone who looked at the subject with even a half-opened eye. It's time for this country's legislators to catch up with everyone else.