45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO MARIJUANA; ENACTING THE COMPASSIONATE USE MEDICAL MARIJUANA ACT; AMENDING PROVISIONS OF THE CONTROLLED SUBSTANCES ACT; REPEALING THE CONTROLLED SUBSTANCES THERAPEUTIC RESEARCH ACT.

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 10 of this act may be cited as the "Compassionate Use Medical Marijuana Act".

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

A. The legislature finds that:

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

(2) state law should make a distinction between medical and non-medical use of marijuana;

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

(4) seriously ill patients who engage in medical use of marijuana 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 Marijuana Act is to allow the beneficial use of marijuana in treating debilitating medical conditions and their symptoms.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Compassionate Use Medical Marijuana 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 secretary of health for participation;

B. "debilitating medical condition" means:

(1) a chronic or debilitating disease, condition or its treatment that produces one or more of the following:

(a) cachexia or wasting syndrome;

(b) severe pain;

(c) severe nausea;

(d) seizures, including those characteristic of epilepsy; or

(e) severe muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(2) a condition that the department designates by adopted rule as being a debilitating medical condition;

C. "department" means the department of health;

D. "practitioner" means a physician licensed 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 marijuana pursuant to the Compassionate Use Medical Marijuana Act; and

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

Section 4. [NEW MATERIAL] RULEMAKING BY SECRETARY FOR ESTABLISHING PROGRAM.--The secretary of health shall promulgate rules establishing a program for medical use of marijuana to treat qualified patients. The rules shall provide for:

A. the establishment of an advisory board:

(1) having a number of members determined by the secretary of health and appointed by him;

(2) of individuals knowledgeable about the medical use of marijuana;

(3) to establish 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; and

(4) to recommend certification of qualified patients by the secretary;

B. requirements to be met by persons other than qualified patients who wish to participate in the program, such as individuals who dispense, administer and distribute marijuana for use in the program; and

C. a registration system for persons meeting the requirements established pursuant to Subsection B of this section.

Section 5. [NEW MATERIAL] STATUTORY REQUIREMENTS FOR PARTICIPATION IN PROGRAM.--A patient may participate in the program if he:

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

B. suffers from a debilitating medical condition; and

C. has been certified by the secretary of health to participate in the program.

Section 6. [NEW MATERIAL] LAWFUL ACTIVITIES.--

A. Except as provided in Section 8 of the Compassionate Use Medical Marijuana 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 marijuana if the amount of marijuana possessed collectively is not more than is reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of the person's debilitating medical condition.

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

C. A person is not subject to arrest, prosecution, civil or criminal penalty or denial of any right or privilege for possessing, distributing, cultivating or selling marijuana if the person is registered with the department as a participant in the program, the terms of the registration include the specified activities and all conditions of the registration are met.

Section 7. [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'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; and

B. 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 marijuana, the dosage and the frequency of use of the marijuana by the patient.

Section 8. [NEW MATERIAL] PROHIBITIONS, RESTRICTIONS AND LIMITATIONS ON THE MEDICAL USE OF MARIJUANA.--Participation in the program by a certified patient does not relieve the patient from:

A. liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana; and

B. criminal prosecution or civil penalty for possession or use of marijuana:

(1) in a school bus or public vehicle;

(2) on school grounds or property;

(3) in the workplace of the patient's employment; or

(4) at a public park, beach recreation center, youth center or other public place where the use or possession of marijuana is prohibited.

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 marijuana-related offense is guilty of a petty misdemeanor and shall be sentenced in accordance with Section 31-19-1 NMSA 1978.

Section 10. [NEW MATERIAL] DEFENSE OF MEDICAL USE OF MARIJUANA IN PROSECUTIONS FOR MARIJUANA OFFENSES.--A person who suffers from a debilitating medical condition or a primary caregiver of that person may assert the medical use of marijuana as a defense to a prosecution for an offense involving marijuana, and the defense is presumed valid if the evidence shows that the person and the primary caregiver collectively were in possession of marijuana that is no more than is reasonably necessary to ensure uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of the patient's debilitating medical condition.

Section 11. 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

(42) trimeperidine;

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 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] Compassionate Use Medical Marijuana Act."

Section 12. 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 is chemically equivalent or identical with any of the substances referred to in Subparagraph (a) of Paragraph (1) of Subsection A of this section, 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 is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine;

(e) marijuana, but only for the use by certified patients pursuant to the [Controlled Substances Therapeutic Research Act] Compassionate Use Medical Marijuana 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] Compassionate Use Medical Marijuana 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] Compassionate Use Medical Marijuana 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 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 13. REPEAL.--Sections 26-2A-1 through 26-2A-7 NMSA 1978 (being Laws 1978, Chapter 22, Sections 1 through 7, as amended) are repealed.

Section 14. SEVERABILITY.--If any part of application of the Compassionate Use Medical Marijuana Act is held invalid, the remainder or its application to other situations or persons shall not be affected.