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AN ACT

RELATING TO CONTROLLED SUBSTANCES; ALLOWING THE MEDICAL USE

OF CANNABIS; ENACTING THE LYNN AND ERIN COMPASSIONATE USE

ACT; AMENDING PROVISIONS OF THE CONTROLLED SUBSTANCES ACT;

PROVIDING PENALTIES.

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

Section 1. SHORT TITLE.--Sections 1 through 7 of this

act may be cited as the "Lynn and Erin Compassionate Use Act"

in honor of Lynn Pierson and Erin Armstrong.

Section 2. PURPOSE OF ACT.--The purpose of the Lynn and

Erin Compassionate Use Act is to allow the beneficial use of

medical cannabis in a regulated system for alleviating

symptoms caused by debilitating medical conditions and their

medical treatments.

Section 3. DEFINITIONS.--As used in the Lynn and Erin

Compassionate Use Act:

A. "adequate supply" means an amount of cannabis,

in any form approved by the department, possessed by a

qualified patient or collectively possessed by a qualified

patient and the qualified patient's primary caregiver that is

determined by rule of the department to be no more than

reasonably necessary to ensure the uninterrupted availability

of cannabis for a period of three months and that is derived

solely from an intrastate source;

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B. "debilitating medical condition" means:

(1) cancer;

(2) glaucoma;

(3) multiple sclerosis;

(4) damage to the nervous tissue of the

spinal cord, with objective neurological indication of

intractable spasticity;

(5) epilepsy;

(6) positive status for human

immunodeficiency virus or acquired immune deficiency

syndrome;

(7) admitted into hospice care in accordance

with rules promulgated by the department; or

(8) any other medical condition, medical

treatment or disease as approved by the department;

C. "department" means the department of health;

D. "licensed producer" means any person or

association of persons within New Mexico that the department

determines to be qualified to produce, possess, distribute

and dispense cannabis pursuant to the Lynn and Erin

Compassionate Use Act and that is licensed by the department;

E. "practitioner" means a person licensed in New

Mexico to prescribe and administer drugs that are subject to

the Controlled Substances Act;

F. "primary caregiver" means a resident of New

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Mexico who is at least eighteen years of age and who has been

designated by the patient's practitioner as being necessary

to take responsibility for managing the well-being of a

qualified patient with respect to the medical use of

cannabis pursuant to the provisions of the Lynn and Erin

Compassionate Use Act;

G. "qualified patient" means a resident of New

Mexico who has been diagnosed by a practitioner as having a

debilitating medical condition and has received written

certification and a registry identification card issued

pursuant to the Lynn and Erin Compassionate Use Act; and

H. "written certification" means a statement in a

patient's medical records or a statement signed by a

patient's practitioner that, in the practitioner's

professional opinion, the patient has a debilitating medical

condition and the practitioner believes that the potential

health benefits of the medical use of cannabis would likely

outweigh the health risks for the patient. A written

certification is not valid for more than one year from the

date of issuance.

Section 4. EXEMPTION FROM CRIMINAL AND CIVIL PENALTIES

FOR THE MEDICAL USE OF CANNABIS.--

A. A qualified patient shall not be subject to

arrest, prosecution or penalty in any manner for the

possession of or the medical use of cannabis if the quantity

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of cannabis does not exceed an adequate supply.

B. A qualified patient's primary caregiver shall

not be subject to arrest, prosecution or penalty in any

manner for the possession of cannabis for medical use by the

qualified patient if the quantity of cannabis does not exceed

an adequate supply.

C. Subsection A of this section shall not apply to

a qualified patient under the age of eighteen years, unless:

(1) the qualified patient's practitioner has

explained the potential risks and benefits of the medical use

of cannabis to the qualified patient and to a parent,

guardian or person having legal custody of the qualified

patient; and

(2) a parent, guardian or person having

legal custody consents in writing to:

(a) allow the qualified patient's

medical use of cannabis;

(b) serve as the qualified patient's

primary caregiver; and

frequency of the medical use of cannabis by the qualified

patient.

D. A qualified patient or a primary caregiver

shall be granted the full legal protections provided in this

section if the patient or caregiver is in possession of a

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registry identification card. If the qualified patient or

primary caregiver is not in possession of a registry

identification card, the patient or caregiver shall be given

an opportunity to produce the registry identification card

before any arrest or criminal charges or other penalties are

initiated.

E. A practitioner shall not be subject to arrest

or prosecution, penalized in any manner or denied any right

or privilege for recommending the medical use of cannabis or

providing written certification for the medical use of

cannabis pursuant to the Lynn and Erin Compassionate Use Act.

F. A licensed producer shall not be subject to

arrest, prosecution or penalty, in any manner, for the

production, possession, distribution or dispensing of

cannabis pursuant to the Lynn and Erin Compassionate Use Act.

G. Any property interest that is possessed, owned

or used in connection with the medical use of cannabis, or

acts incidental to such use, shall not be harmed, neglected,

injured or destroyed while in the possession of state or

local law enforcement officials. Any such property interest

shall not be forfeited under any state or local law providing

for the forfeiture of property except as provided in the

Forfeiture Act. Cannabis, paraphernalia or other property

seized from a qualified patient or primary caregiver in

connection with the claimed medical use of cannabis shall be

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returned immediately upon the determination by a court or

prosecutor that the qualified patient or primary caregiver is

entitled to the protections of the provisions of the Lynn and

Erin Compassionate Use Act, as may be evidenced by a failure

to actively investigate the case, a decision not to

prosecute, the dismissal of charges or acquittal.

H. A person shall not be subject to arrest or

prosecution for a cannabis-related offense for simply being

in the presence of the medical use of cannabis as permitted

under the provisions of the Lynn and Erin Compassionate Use

Act.

Section 5. PROHIBITIONS, RESTRICTIONS AND LIMITATIONS

ON THE MEDICAL USE OF CANNABIS--CRIMINAL PENALTIES.--

A. Participation in a medical use of cannabis

program by a qualified patient or primary caregiver does not

relieve the qualified patient or primary caregiver from:

(1) criminal prosecution or civil penalties

for activities not authorized in the Lynn and Erin

Compassionate Use 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;

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(b) on school grounds or property;

patient's or primary caregiver's employment; or

(d) at a public park, recreation

center, youth center or other public place.

B. A person who makes a fraudulent representation

to a law enforcement officer about the person's participation

in a medical use of cannabis program to avoid arrest or

prosecution for a cannabis-related offense is guilty of a

petty misdemeanor and shall be sentenced in accordance with

the provisions of Section 31-19-1 NMSA 1978.

C. If a licensed producer sells, distributes,

dispenses or transfers cannabis to a person not approved by

the department pursuant to the Lynn and Erin Compassionate

Use Act or obtains or transports cannabis outside New Mexico

in violation of federal law, the licensed producer shall be

subject to arrest, prosecution and civil or criminal

penalties pursuant to state law.

Section 6. ADVISORY BOARD CREATED--DUTIES.--The

secretary of health shall establish an advisory board

consisting of eight practitioners representing the fields of

neurology, pain management, medical oncology, psychiatry,

infectious disease, family medicine and gynecology. The

practitioners shall be nationally board-certified in their

area of specialty and knowledgeable about the medical use of

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cannabis. The members shall be chosen for appointment by the

secretary from a list proposed by the New Mexico medical

society. A quorum of the advisory board shall consist of

three members. The advisory board shall:

A. review and recommend to the department for

approval additional debilitating medical conditions that

would benefit from the medical use of cannabis;

B. accept and review petitions to add medical

conditions, medical treatments or diseases to the list of

debilitating medical conditions that qualify for the medical

use of cannabis;

C. convene at least twice per year to conduct

public hearings and to evaluate petitions, which shall be

maintained as confidential personal health information, to

add medical conditions, medical treatments or diseases to the

list of debilitating medical conditions that qualify for the

medical use of cannabis;

D. issue recommendations concerning rules to be

promulgated for the issuance of the registry identification

cards; and

E. recommend quantities of cannabis that are

necessary to constitute an adequate supply for qualified

patients and primary caregivers.

Section 7. REGISTRY IDENTIFICATION CARDS--DEPARTMENT

RULES--DUTIES.--

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A. No later than October 1, 2007, and after

consultation with the advisory board, the department shall

promulgate rules in accordance with the State Rules Act to

implement the purpose of the Lynn and Erin Compassionate Use

Act. The rules shall:

(1) govern the manner in which the

department will consider applications for registry

identification cards and for the renewal of identification

cards for qualified patients and primary caregivers;

(2) define the amount of cannabis that is

necessary to constitute an adequate supply, including amounts

for topical treatments;

(3) identify criteria and set forth

procedures for including additional medical conditions,

medical treatments or diseases to the list of debilitating

medical conditions that qualify for the medical use of

cannabis. Procedures shall include a petition process and

shall allow for public comment and public hearings before the

advisory board;

(4) set forth additional medical conditions,

medical treatments or diseases to the list of debilitating

medical conditions that qualify for the medical use of

cannabis as recommended by the advisory board;

(5) identify requirements for the licensure

of producers and cannabis production facilities and set forth

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procedures to obtain licenses;

(6) develop a distribution system for

medical cannabis that provides for:

(a) cannabis production facilities

within New Mexico housed on secured grounds and operated by

licensed producers; and

(b) distribution of medical cannabis to

qualified patients or their primary caregivers to take place

at locations that are designated by the department and that

are not within three hundred feet of any school, church or

daycare center;

(7) determine additional duties and

responsibilities of the advisory board; and

(8) be revised and updated as necessary.

B. The department shall issue registry

identification cards to a patient and to the primary

caregiver for that patient, if any, who submit the following,

in accordance with the department's rules:

(1) a written certification;

(2) the name, address and date of birth of

the patient;

(3) the name, address and telephone number

of the patient's practitioner; and

(4) the name, address and date of birth of

the patient's primary caregiver, if any.

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C. The department shall verify the information

contained in an application submitted pursuant to Subsection

B of this section and shall approve or deny an application

within thirty days of receipt. The department may deny an

application only if the applicant did not provide the

information required pursuant to Subsection B of this section

or if the department determines that the information provided

is false. A person whose application has been denied shall

not reapply for six months from the date of the denial unless

otherwise authorized by the department.

D. The department shall issue a registry

identification card within five days of approving an

application, and a card shall expire one year after the date

of issuance. A registry identification card shall contain:

(1) the name, address and date of birth of

the qualified patient and primary caregiver, if any;

(2) the date of issuance and expiration date

of the registry identification card; and

(3) other information that the department

may require by rule.

E. A person who possesses a registry

identification card shall notify the department of any change

in the person's name, address, qualified patient's

practitioner, qualified patient's primary caregiver or

change in status of the qualified patient's debilitating

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medical condition within ten days of the change.

F. Possession of or application for a registry

identification card shall not constitute probable cause or

give rise to reasonable suspicion for a governmental agency

to search the person or property of the person possessing or

applying for the card.

G. The department shall maintain a confidential

file containing the names and addresses of the persons who

have either applied for or received a registry identification

card. Individual names on the list shall be confidential and

not subject to disclosure, except:

(1) to authorized employees or agents of the

department as necessary to perform the duties of the

department pursuant to the provisions of the Lynn and Erin

Compassionate Use Act;

(2) to authorized employees of state or

local law enforcement agencies, but only for the purpose of

verifying that a person is lawfully in possession of a

registry identification card; or

(3) as provided in the federal Health

Insurance Portability and Accountability Act of 1996.

Section 8. 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:

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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;

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(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

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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

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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;

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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;

E. the enumeration of marijuana,

tetrahydrocannabinols or chemical derivatives 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 by qualified patients pursuant to the

provisions of the Lynn and Erin Compassionate Use Act; and

F. controlled substances added to Schedule I by

rule adopted by the board pursuant to Section 30-31-3 NMSA

1978."

Section 9. 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

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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 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;

(d) coca leaves and any salt, compound,

derivative or preparation of coca leaves, and any salt,

compound, derivative or preparation thereof that is

chemically equivalent or identical with any of these

substances, but not including decocainized coca leaves or

extractions 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 by qualified patients pursuant to

the provisions of the Lynn and Erin Compassionate Use Act;

and

(f) tetrahydrocannabinols or chemical

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derivatives of tetrahydrocannabinol, but only for the use by

certified patients pursuant to the Controlled Substances

Therapeutic Research Act or by qualified patients pursuant to

the provisions of the Lynn and Erin Compassionate Use 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 Lynn

and Erin Compassionate Use 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;

(d) dihydrocodeine;

(e) diphenoxylate;

(f) fentanyl;

(g) hydromorphone;

(h) isomethadone;

(i) levomethorphan;

(j) levorphanol;

(k) meperidine;

(l) metazocine;

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(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;

(3) unless listed in another schedule, any

material, compound, mixture or preparation 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;

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and salts of isomers; and

(d) methylphenidate; and

(4) controlled substances added to Schedule

II by rule adopted by the board pursuant to Section 30-31-3

NMSA 1978.

B. Where methadone is prescribed, administered or

dispensed by a practitioner of a drug abuse rehabilitation

program while acting in the course of the practitioner's

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

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 the ultimate user 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

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up to five thousand dollars ($5,000), or both."

Section 10. TEMPORARY PROVISION.--

A. During the period between July 1, 2007 and

thirty days after the effective date of rules promulgated by

the department of health pursuant to Subsection A of Section

7 of the Lynn and Erin Compassionate Use Act, a person who

would be eligible to participate in the medical use of

cannabis program as a qualified patient, but for the lack of

effective rules concerning registry identification cards,

licensed producers, cannabis production facilities,

distribution system and adequate supply, may obtain a written

certification from a practitioner and upon presentation of

that certification to the department of health, the

department shall issue a temporary certification for

participation in the program. The department of health shall

maintain a list of all temporary certificates issued pursuant

to this section.

B. 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 the amount

that is specified on the temporary certificate issued by the

department of health.

C. A practitioner shall not be subject to arrest

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or prosecution, penalized in any manner or denied any right

or privilege for recommending the medical use of cannabis or

providing written certification for the medical use of

cannabis pursuant to the Lynn and Erin Compassionate Use Act

on or after July 1, 2007.

Section 11. SEVERABILITY.--If any part or application

of the Lynn and Erin Compassionate Use Act is held invalid,

the remainder or its application to other situations or

persons shall not be affected. Failure to promulgate rules

or implement any provision of the Lynn and Erin Compassionate

Use Act shall not interfere with the remaining protections

provided by that act.

Section 12. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2007.