SB1085 was true bipartisan compromise legislation so no one got everything s/he wanted. SB1085 has good, bad, and borderline parts. Viewpoints differ between patients versus caregivers and between those residing in “OMMA-hostile” versus “OMMA-tolerant” counties.
The new possession limits in SB1085 (6 mature plants, 18 immature plants, and 24 ounces of useable marijuana) are good. If a registrant follows the new limits, s/he should avoid arrest by law enforcement (LE). But, overgrowing or exceeding the new possession limits can create more problems under SB1085 than under the 1998 OMMA. This is because SB1085, while keeping the affirmative defense for non-registered patients within possession limits, removes the affirmative defense for registrants who exceed possession limits. With the registrant affirmative defense in the 1998 OMMA, a registrant could present—after being arrested—a doctor’s note affirming s/he needed more than the 1998 OMMA limits (3 mature plants, 4 immature plants, 4 ounces of useable marijuana). Practically, an affirmative defense that costs over $50,000 to present and rarely yields an acquittal has limited value. Even with affirmative defenses, nearly all arrested for medical marijuana felonies plea-bargain rather than go to trial. Politically, it seems LE allowed higher possession limits to get a bright line, above which patients cannot cultivate or possess. All patients agree that adequate possession limits to avoid arrest are desirable. The controversy is whether the SB1085 possession limits are adequate.
A bad part of SB1085 includes severe new administrative punishments on top of criminal justice punishment. This could affect patients with poor yields or extraordinary demands who compensate by growing more plants. At the insistence of LE, the new amendments mandate administrative penalties without any administrative review to allow for exceptional cases. If a patient is convicted of a crime involving Schedule 1 or 2 drugs (like overgrowing the new plant limits) the patient’s growsite registration card is restricted so the patient is prohibited from cultivating for 5 years. A second violation results in a lifetime restriction from cultivation. Only intensive effort amended SB1085 so the restricted patient with the registry ID card could designate the growsite registration card to a person responsible for a marijuana growsite to cultivate for the restricted patient. But, the restricted patient cannot be present at the growsite and cannot possess over one ounce of useable marijuana. A similarly convicted nonpatient is also restricted from cultivating. Importantly, these restrictions apply only to violations after January 1, 2006; and SB1085 states that patients, regardless of marijuana violations, remain eligible for registry ID cards even if restricted from cultivating.
Definite improvements in SB1085 include protection for nurses in healthcare facilities (like a hospice) that administer medical marijuana to registered patients. This is closer to OMMA’s goal that medical marijuana be treated like other medicines.
For a section-by-section legal analysis of SB1085 by Oregon attorney and OMMA co-author Leland Berger, please see the Oregon Criminal Defense Lawyers Association Newsletter www.ocdla.org/pdf/medicalmarijuana.pdf. Oregon Administrative Rules discussing SB1085 should soon be at the OMMP website www.healthoregon.org/mm.
It will take time to assess the total impact of SB1085. Those who achieved this compromise legislation deserve congratulations because, with certain exceptions, SB1085 improves the 1998 OMMA. Nevertheless, SB1085 was overly influenced by America’s misguided war on marijuana and actually adds punitive laws for patients who may be guilty only of being bad gardeners. Herbal medicine gardens can provide cost-effective medicine but limits must be based on needs rather than ultimatums from prohibitionists. SB1085 ignores patients too sick to garden and patients who need medicine immediately since it remains illegal for patients to buy needed medicine.
Making the OMMA better is a cause to celebrate. But, state actions must persuade the feds to leave medical marijuana states alone and reschedule marijuana so patients can access medicine by prescription through state-regulated private pharmacy-like dispensaries.
Richard “Rick” Bayer, MD, FACP is board-certified in internal medicine, a Fellow in the American College of Physicians (FACP), and practiced in Oregon many years. He is an author of: Is Marijuana the Right Medicine For You? A Factual Guide to Medical Uses of Marijuana; an author and a chief-petitioner of the Oregon Medical Marijuana Act of 1998; has appeared as a medical cannabis expert witness in Oregon state courts, and maintains a medical cannabis bibliography linked from www.omma1998.org.
