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A second look at Hawaiʻi’s medical pot program

At the request of the recently created Medical Marijuana Dispensary Task Force, the Hawaiʻi Legislative Reference Bureau has created an updated report on the feasibility of a medical marijuana dispensary program.

Will Caron

In the year 2000, Hawaiʻi became the first state to establish a medical marijuana program by legislation rather than by ballot initiative. Authorized by Act 228, Hawaiʻi’s medical marijuana program became effective on June 14, 2000.

The program currently allows the medical use of marijuana by a qualifying patient only so long as the amount of marijuana possessed does not exceed “an adequate supply,” which Hawaiʻi state law presently defines as “not more than three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant, jointly possessed between a qualifying patient and a primary caregiver.”

The law does not provide patients with any method to obtain marijuana other than for them to grow it on their own. The sale of marijuana—including seeds for cultivation—remains illegal under state law.  As a result, qualifying patients who suffer from cancer or other debilitating diseases are often unable to legally acquire medical marijuana to find relief and improve the quality of their lives.

In recognition of this dilemma, this year the Legislature passed House Concurrent Resolution 48 establishing, under the University of Hawaiʻi at Mānoa’s Public Policy Center, the Medical Marijuana Dispensary Task Force to develop recommendations to establish a regulated statewide dispensary system for medical marijuana. 

The task force has announced the release of a newly updated report on the policies and procedures for access, distribution, security, and other relevant issues related to the medical use of marijuana in Hawaiʻi. The report was produced by the Hawaiʻi Legislative Reference Bureau (LRB) and updates findings released in an earlier report first published in August 2009.

The updated LRB report highlights “glaring uncertainties” within Hawaiʻi’s medical marijuana program, currently administered through the Department of Public Safety, particularly with regards to the access and transportation of medical marijuana.

Access and transportation issues

Under federal law, pharmacies are only permitted to dispense medications that have been prescribed by physicians. But marijuana is classified under federal law as a Schedule I Controlled Substance, making it illegal for physicians to write prescriptions for its use.

Under Hawaiʻi law, a physician does not actually “prescribe” marijuana for medical purposes, but rather issues a “written certification to a qualifying patient.” Again, the law makes no mention of how the qualifying patient is to obtain the marijuana.

And while the state’s medical marijuana program permits a qualifying patient and primary caregiver to grow marijuana plants for the patient’s medical use, “the program does not supply marijuana seeds or plants, nor does it provide a source or means of obtaining them. Nor does the program offer guidance on the cultivation of marijuana.”

Because the sale of marijuana, in any amount, is strictly prohibited under state law, there is no place within the state where a qualifying patient with a valid registry identification certificate can legally purchase marijuana.

With regards to transportation, it is uncertain whether or to what extent a qualifying patient or caregiver may take medical marijuana anywhere outside the home on the same island, or island to island, without violating state drug enforcement laws.

Federal law prohibits the interstate transportation of medical marijuana and regulates the transportation of medical marijuana through federal security checkpoints. As an island state, Hawaiʻi must contend with “a layer of potential federal intervention that other states may not otherwise have to contend with when implementing an efficient medical marijuana dispensing program.” Because travelers between Hawaiʻi and other states, or from one of Hawaiʻi’s islands to another, do so primarily via commercial airline, they must pass through federal Transportation Security Administration checkpoints located in airports operated by the State of Hawaiʻi.

Additionally, federal authorities have long maintained that the channels between the state’s major islands are international waters, rendering travel by either air or sea between those islands interstate travel, even though the destinations are within the same state. “The potential for federal prosecution of Hawaiʻi qualified patients traveling interisland who possess medical marijuana underscores the need for any medical marijuana dispensing strategy developed by the state of Hawaiʻi to recognize and address this concern,” reads the report.

Hawaiʻi state law remains unsettled concerning the transportation of medical marijuana outside the home, given the inconsistency in Hawaiʻi laws between the definition of “medical use” in section 329-121, HRS, which includes the “transportation of marijuana,” and the prohibition on the use of medical marijuana in any “place open to the public” under section 329-122(c)(2)(E), HRS.

In 2013, the Hawaiʻi Supreme Court overturned a qualifying patient’s conviction for promoting a detrimental drug in the third degree, with regards to his possession of medical marijuana in a public place, but emphasized that “the decision applied only to the specific facts and circumstances of that case.” The court held that there was an “irreconcilable inconsistency between the authorized transportation of medical marijuana under HRS § 329-121, and the prohibition on transport of medical marijuana through ‘any . . . place open to the public’ under HRS § 329-122(c)(E).” Under the rule of lenity, the defendant was entitled to an affirmative defense and a judgment of acquittal.

The court explicitly did not address whether other circumstances, including other locations or modes of transportation, may similarly trigger the rule of lenity, which, according to the report, “strictly construes an ambiguous statute against the government and in favor of the accused.” But the court did note that Hawaiʻi’s medical marijuana laws do not explicitly provide for how medical marijuana would initially arrive at the qualifying patient’s home, nor do they provide for its possession outside the home, even though “qualifying patients, like other ordinary people, may be absent from the home” for legitimate purposes and might need their medication with them at any given point during that absence.

So right now it’s uncertain whether or to what extent a Hawaiʻi qualifying patient or caregiver may transport medical marijuana anywhere outside the home, even when limited to travel within the same island, without violating state drug enforcement laws. “The inconsistency between sections 329-121 and 329-122, HRS, presently presents an impediment to an effective medical marijuana distribution system in Hawaiʻi and would need to be addressed if the State is to implement a distribution system,” reads the report.

“It has been over a decade since Hawaiʻi took the historic step of legalizing medical marijuana to better the lives our residents,” said House Health Chair Della Au Belatti after the announcement. “But as we have learned throughout the years and once again validated by the report, issues still exist with the program that need to be addressed. The task force is working towards improving our medical cannabis system with the goal of facilitating access for patients through a legal dispensary system or other means.”

Recent developments in Hawaiʻi’s medical marijuana laws

During the 2013 Legislative Session, two laws were enacted that, according to the report, will have a significant effect on Hawaiʻi’s medical marijuana program when they take effect in January 2015.

Act 177, Session Laws of Hawaiʻi 2013, implements the 2009 Medical Cannabis Working Group’s recommendation to transfer the administration of Hawaiʻi’s medical marijuana program from the Department of Public Safety to the Department of Health no later than January 1, 2015.

“By keeping marijuana a law enforcement priority, we take away our law enforcement resources from much more important things, such as really dangerous drugs and violent criminals,” said Senator Russell Ruderman, a proponent of Act 177, during the 2013 legislative session. “This idea comes from a public health and policy point of view. It’s not about advocating drug use, it’s about sensible public policy. This simply allows our law enforcement, legal and incarceration resources to be spent on more appropriate efforts.” Ruderman added that Hawaiʻi Island residents voted marijuana to the lowest level priority for Hawaiʻi County police and, in supporting Act 177, he is following the will of his constituents.

Aside from making various technical amendments that address the transfer of administration of the medical marijuana program to the Department of Health in 2015, the most significant amendment to the Hawaiʻi medical marijuana program included in Act 178, Session Laws of Hawaiʻi 2013, is that, beginning January 2, 2015, the definition of “adequate supply” will change from “three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant” to “seven marijuana plants, whether immature or mature, and four ounces of usable marijuana at any given time.”

The Dispensary System Task Force will submit a report of its findings and recommendations, including proposed legislation to the 2015 Legislature.

On Tuesday, September 9, from 9–11 a.m. at the Hawaiʻi State Capitol, Room 325, the Dispensary Task Force will be briefed by the Legislative Reference Bureau on its 2014 report.

Public hearings on Hawaiʻi Island and Oʻahu have been scheduled by the Task Force to obtain public testimony on issues and concerns regarding dispensaries in Hawaiʻi and any input on the updated Legislative Reference Bureau report. These public hearings are scheduled as follows:

Hawaiʻi Island (Hilo): Wednesday, September 10th at 5 p.m., Aupuni Center.
Oʻahu: Wednesday, September 24th at 5 p.m., Hawaiʻi State Capitol Auditorium.