45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO THE MEDICAL USE OF CANNABIS; AMENDING PROVISIONS OF THE CONTROLLED SUBSTANCES ACT; ENACTING THE COMPASSIONATE USE MEDICAL CANNABIS ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 9 of this act may be cited as the "Compassionate Use Medical Cannabis Act".

Section 2. [NEW MATERIAL] LEGISLATIVE FINDINGS--PURPOSE.--

A. The legislature finds that:

(1) New Mexico is a sovereign state imposed with the duty to maintain the health, safety and well-being of its citizens, including those who suffer from debilitating illnesses and injuries;

(2) recent medical research has shown that the use of cannabis is a medically valuable treatment for a variety of medical conditions;

(3) state law should make a distinction between medical and nonmedical use of cannabis, also known as marijuana;

(4) practitioners should not be penalized for discussing cannabis or marijuana as a treatment option for their patients; and

(5) seriously ill patients who engage in medical use of cannabis on their treating practitioner's advice should not be arrested and incarcerated for violation of drug laws.

B. The purpose of the Compassionate Use Medical Cannabis Act is to allow the beneficial use of cannabis in treating debilitating medical conditions and their symptoms.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Compassionate Use Medical Cannabis Act:

A. "certified patient" means a person who has been determined to be qualified to participate in the program and has been certified by the department for participation;

B. "debilitating medical condition" means:

(1) cancer;

(2) human immunodeficiency virus or acquired immune deficiency syndrome;

(3) glaucoma;

(4) neuromuscular conditions that include spasticity or seizures; or

(5) another debilitating illness or condition for which cannabis has a therapeutic benefit that is designated by department rule as being a debilitating medical condition;

C. "department" means the department of health;

D. "practitioner" means a physician licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act;

E. "primary caregiver" means a person who has reached his eighteenth birthday and who has agreed to take responsibility for managing the well-being of a certified patient with respect to the medical use of cannabis pursuant to the Compassionate Use Medical Cannabis Act; and

F. "program" means the medical use of cannabis program established and administered by the department pursuant to the Compassionate Use Medical Cannabis Act.

Section 4. [NEW MATERIAL] RULEMAKING BY SECRETARY FOR ESTABLISHING PROGRAM.--

A. The secretary of health shall promulgate rules establishing a program for medical use of cannabis to treat certified patients. The rules shall be in accordance with federal law and shall provide for:

(1) requirements and procedures for patients to qualify for participation in the program, including a requirement that a patient must be certified by a practitioner to have a debilitating medical condition;

(2) a registration system for certified patients, primary caregivers, persons other than certified patients and primary caregivers who produce, possess, distribute, dispense or sell cannabis for use in the program, and practitioners who are participants in the program;

(3) identification cards, to be issued by the department, for certified patients, primary caregivers and any other person approved by the department to produce, possess, distribute, dispense or sell cannabis for the purposes of the Compassionate Use Medical Cannabis Act;

(4) requirements to be met by persons other than certified patients and primary caregivers who produce, possess, distribute, dispense or sell cannabis for use in the program; and

(5) the department to ensure that the cannabis produced for the program is grown only in a secure facility and that the producer of the cannabis provides an inventory of the product at regular intervals.

B. The secretary shall establish an advisory board to recommend requirements and procedures for patients to qualify for participation in the program pursuant to Paragraph (1) of Subsection A of this section. The advisory board shall consist of at least five practitioners, appointed by the secretary from a list proposed by the New Mexico medical society, who are knowledgeable about the medical use of cannabis.

Section 5. [NEW MATERIAL] STATUTORY REQUIREMENTS FOR PARTICIPATION IN PROGRAM.--Except as provided in Section 6 of the Compassionate Use Medical Cannabis Act, a patient shall be certified by the department to participate in the program if the patient:

A. is a resident of the state at the time of application and continues to be a resident during participation;

B. has been certified by a practitioner as suffering from a debilitating medical condition;

C. has received from his attending practitioner an explanation of the potential risks and benefits of the program; and

D. has satisfied the requirements and procedures, established by rule of the department, for participation in the program.

Section 6. [NEW MATERIAL] PARTICIPATION BY PERSON WHO HAS NOT REACHED HIS EIGHTEENTH BIRTHDAY.--A person who has not reached his eighteenth birthday may be certified as a patient to participate in the program only if:

A. the patient satisfies the requirements of Section 5 of the Compassionate Use Medical Cannabis Act;

B. the patient's attending practitioner has explained the potential risks and benefits of the program to the patient and the patient's parents, guardian or person having legal custody of the patient;

C. a parent, guardian or person having legal custody of the patient consents in writing to:

(1) the patient's participation in the program;

(2) serve as the patient's primary caregiver; and

(3) control the acquisition of the cannabis, the dosage and the frequency of use of the cannabis by the patient.

Section 7. [NEW MATERIAL] LAWFUL ACTIVITIES.--

A. Except as provided in Section 8 of the Compassionate Use Medical Cannabis Act, a certified patient and his primary caregiver are not subject to arrest, prosecution, civil or criminal penalty or denial of any right or privilege for possessing cannabis if the amount of cannabis possessed collectively is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of the patient's debilitating medical condition.

B. A practitioner is not subject to arrest, prosecution, civil or criminal penalty or denial of any right or privilege for certification of a patient's condition for the purpose of qualifying the patient for participation in the program if the practitioner is registered with the department as a participating practitioner in the program.

C. Persons who have been approved by the department to produce, possess, distribute, dispense or sell cannabis for the purposes of the Compassionate Use Medical Cannabis Act are not subject to arrest, prosecution, civil or criminal penalty or denial of any right or privilege for engaging in approved activities.

Section 8. [NEW MATERIAL] PROHIBITIONS, RESTRICTIONS AND LIMITATIONS ON THE MEDICAL USE OF CANNABIS.--

A. Participation in the program by a certified patient or primary caregiver does not relieve the certified patient or primary caregiver from:

(1) criminal prosecution or civil penalties for activities not authorized in Subsection A of Section 7 of the Compassionate Use Medical Cannabis Act;

(2) liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of cannabis; or

(3) criminal prosecution or civil penalty for possession or use of cannabis:

(a) in a school bus or public vehicle;

(b) on school grounds or property;

(c) in the workplace of the certified patient's or primary caregiver's employment; or

(d) at a public park, recreation center, youth center or other public place.

B. If a certified patient, practitioner, primary caregiver or any other person approved by the department to produce, possess, distribute, dispense or sell cannabis for the purposes of the Compassionate Use Medical Cannabis Act sells, conveys or transfers cannabis to a person not approved by the department pursuant to that act, the certified patient, practitioner, primary caregiver or approved person shall be removed by the department from participation in the program and shall be subject to arrest, prosecution and civil or criminal penalties pursuant to state law.

Section 9. [NEW MATERIAL] FRAUDULENT REPRESENTATION TO LAW ENFORCEMENT OFFICER PUNISHABLE AS PETTY MISDEMEANOR.--A person who makes a fraudulent representation to a law enforcement officer about his participation in the program to avoid arrest or prosecution for a cannabis-related offense is guilty of a petty misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978.

Section 10. Section 30-31-6 NMSA 1978 (being Laws 1972, Chapter 84, Section 6, as amended) is amended to read:

"30-31-6. SCHEDULE I.--The following controlled substances are included in Schedule I:

A. any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters and ethers, unless specifically exempted, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation:

(1) acetylmethadol;

(2) allylprodine;

(3) alphacetylmethadol;

(4) alphameprodine;

(5) alphamethadol;

(6) benzethidine;

(7) betacetylmethadol;

(8) betameprodine;

(9) betamethadol;

(10) betaprodine;

(11) clonitazene;

(12) dextromoramide;

(13) dextrorphan;

(14) diampromide;

(15) diethylthiambutene;

(16) dimenoxadol;

(17) dimepheptanol;

(18) dimethylthiambutene;

(19) dioxaphetyl butyrate;

(20) dipipanone;

(21) ethylmethylthiambutene;

(22) etonitazene;

(23) etoxeridine;

(24) furethidine;

(25) hydroxypethidine;

(26) ketobemidone;

(27) levomoramide;

(28) levophenacylmorphan;

(29) morpheridine;

(30) noracymethadol;

(31) norlevorphanol;

(32) normethadone;

(33) norpipanone;

(34) phenadoxone;

(35) phenampromide;

(36) phenomorphan;

(37) phenoperidine;

(38) piritramide;

(39) proheptazine;

(40) properidine;

(41) racemoramide; and

B. any of the following opium derivatives, their salts, isomers and salts of isomers, unless specifically exempted, whenever the existence of these salts, isomers and salts of isomers is possible within the specific chemical designation:

(1) acetorphine;

(2) acetyldihydrocodeine;

(3) benzylmorphine;

(4) codeine methylbromide;

(5) codeine-N-oxide;

(6) cyprenorphine;

(7) desomorphine;

(8) dihydromorphine;

(9) etorphine;

(10) heroin;

(11) hydromorphinol;

(12) methyldesorphine;

(13) methyldihydromorphine;

(14) morphine methylbromide;

(15) morphine methylsulfonate;

(16) morphine-N-oxide;

(17) myrophine;

(18) nicocodeine;

(19) nicomorphine;

(20) normorphine;

(21) pholcodine; and

(22) thebacon;

C. any material, compound, mixture or preparation [which] that contains any quantity of the following hallucinogenic substances, their salts, isomers and salts of isomers, unless specifically exempted, whenever the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) 3,4-methylenedioxy amphetamine;

(2) 5-methoxy-3,4-methylenedioxy amphetamine;

(3) 3,4,5-trimethoxy amphetamine;

(4) bufotenine;

(5) diethyltryptamine;

(6) dimethyltryptamine;

(7) 4-methyl-2,5-dimethoxy amphetamine;

(8) ibogaine;

(9) lysergic acid diethylamide;

(10) marijuana;

(11) mescaline;

(12) peyote, except as otherwise provided in the Controlled Substances Act;

(13) N-ethyl-3-piperidyl benzilate;

(14) N-methyl-3-piperidyl benzilate;

(15) psilocybin;

(16) psilocyn;

(17) tetrahydrocannabinols; and

(18) hashish;

D. the enumeration of peyote as a controlled substance does not apply to the use of peyote in bona fide religious ceremonies by a bona fide religious organization, and members of the organization so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the organization or its members shall comply with the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 and all other requirements of law; and

E. the enumeration of marijuana, tetrahydrocannabinols or chemical derivaties of tetrahydrocannabinol as Schedule I controlled substances does not apply to the use of marijuana, tetrahydrocannabinols or chemical derivatives of tetrahydrocannabinol by certified patients pursuant to the Controlled Substances Therapeutic Research Act or the Compassionate Use Medical Cannabis Act."

Section 11. Section 30-31-7 NMSA 1978 (being Laws 1972, Chapter 84, Section 7, as amended) is amended to read:

"30-31-7. SCHEDULE II.--

A. The following controlled substances are included in Schedule II:

(1) any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:

(a) opium and opiate, and any salt, compound, derivative or preparation of opium or opiate;

(b) any salt, compound, isomer, derivative or preparation thereof [which] that is chemically equivalent or identical with any of the substances referred to in Subparagraph (a) of this paragraph, but not including the isoquinoline alkaloids of opium;

(c) opium poppy and poppy straw;

(d) coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative or preparation thereof [which] that is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions [which] that do not contain cocaine or ecgonine;

(e) marijuana, but only for the use by certified patients pursuant to the Controlled Substances Therapeutic Research Act or the Compassionate Use Medical Cannabis Act; and

(f) tetrahydrocannabinols or chemical derivatives of tetrahydrocannabinol, but only for the use of certified patients pursuant to the Controlled Substances Therapeutic Research Act or the Compassionate Use Medical Cannabis Act.

Marijuana, tetrahydrocannobinols or chemical derivatives of tetrahydrocannabinol shall be considered Schedule II controlled substances only for the purposes enumerated in the Controlled Substances Therapeutic Research Act or the Compassionate Use Medical Cannabis Act;

(2) any of the following opiates, including their isomers, esters, ethers, salts and salts of isomers, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation:

(a) alphaprodine;

(b) anileridine;

(c) bezitramide;

(d) dihydrocodeine;

(e) diphenoxylate;

(f) fentanyl;

(g) hydromorphone;

(h) isomethadone;

(i) levomethorphan;

(j) levorphanol;

(k) meperidine;

(l) metazocine;

(m) methadone;

(n) methadone--intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;

(o) moramide--intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid;

(p) oxycodone;

(q) pethidine;

(r) pethidine--intermediate--A, 4-cyano-1-methyl-4-phenylpiperidine;

(s) pethidine--intermediate--B, ethyl-4-phenyl-piperidine-4-carboxylate;

(t) pethidine--intermediate--C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;

(u) phenazocine;

(v) piminodine;

(w) racemethorphan; and

(x) racemorphan; and

(3) unless listed in another schedule, any material, compound, mixture or preparation [which] that contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(a) amphetamine, its salts, optical isomers and salts of its optical isomers;

(b) phenmetrazine and its salts;

(c) methamphetamine, its salts, isomers and salts of isomers; and

(d) methylphenidate.

B. Where methadone is prescribed, administered or dispensed by a practitioner of a drug abuse rehabilitation program as defined [in Paragraph (3) of Subsection A of Section 26-2-13 NMSA 1978] by the department of health while acting in the course of his professional practice, or otherwise lawfully obtained or possessed by a person, such person shall not possess such methadone beyond the date stamped or typed on the label of the container of the methadone, nor shall any person possess methadone except in the container in which it was originally administered or dispensed to such person, and such container [must] shall include a label showing the name of the prescribing physician or practitioner, the identity of methadone, the name of the ultimate user, the date when the methadone is to be administered to or used or consumed by the named ultimate user shown on the label and a warning on the label of the methadone container that the ultimate user must use, consume or administer to himself the methadone in such container. Any person who violates this subsection is guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years, or by a fine of up to five thousand dollars ($5,000), or both."

Section 12. TEMPORARY PROVISION.--During the period between July 1, 2002 and the effective date of rules promulgated by the secretary of health pursuant to Section 4 of the Compassionate Use Medical Cannabis Act, a person who would be eligible to participate in the medical use of cannabis program as a certified patient, but for the lack of effective regulations establishing procedures for certification and participation, may be certified as suffering from a debilitating medical condition by a practitioner and upon presentation of that certification to the secretary of health, the secretary may issue a temporary certification for participation in the program. The secretary shall maintain a list of all temporary certificates issued pursuant to this section. A person possessing a temporary certificate and the person's primary caregiver are not subject to arrest, prosecution, civil or criminal penalty or denial of any right or privilege for possessing cannabis if the amount of cannabis possessed collectively is not more than is reasonably necessary to ensure the uninterrupted availability of cannabis for the purpose of alleviating the symptoms or effects of the person's debilitating medical condition.

Section 13. SEVERABILITY.--If any part or application of the Compassionate Use Medical Cannabis Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 14. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2002.