DOH Announces Important Updates On PA’s Medical Marijuana Program Including Draft Regulations for Growers/Processors.

On August 18, 2016, Secretary of Health, Karen Murphy held a press conference to give four important updates on Pennsylvania’s Medical Marijuana Program. One update was the previous announcement of John Collins named as the director of the Office of Medical Marijuana.

The biggest update was Secretary Murphy’s announcement that the Department of Health finished drafting temporary regulations for growers/processors. The DOH website includes two sets of draft regulations. The first is a general set of regulations focused primarily on the permit and application process. The second set of draft regulations is titled as specific set for growers/processors and is primarily focused on operational requirements. The draft regulations will be available for review and feedback on the DOH’s website until August 26, 2018. This is an important opportunity for those interested in Pennsylvania’s Medical Marijuana Program to help shape the regulations with any input and feedback.

The second update was the release of a survey on the DOH’s website seeking input from the patient and caregiver community. The update states that the survey’s purpose is to help in drafting regulations but the survey is primarily focused in what patient /caregiver information should be required in their respective applications and what information should be on the their respective identification cards. The questions concerning information visible on the identification cards may raise some issues with regards to privacy.

The third update was concerning Safe Harbor Letter. The Secretary announced that 53 Safe Harbor Letters had been approved to date and that the DOH is processing another ten more applications. The Safe Harbor Letter allows parents, legal guardians, caregivers and spouses of minors under the age of 18 certified with serious with medical conditions to posses marijuana in its approved from for the minor within Pennsylvania. The next question is where will these 53 possessors of Safe Harbor Letters obtain the approved form of medical marijuana. Maryland has just started to issue dispensary permits and that may in the near future be an initial source of medical marijuana.

If you would like to read more of Secretary Murphy’s updates, you may visit the website below.

Four Important Updates You Need to Know About PA’s Medical Marijuana Program

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The Possible Ethical Conflict Facing Pennsylvania Marijuana Attorneys

As readers of my blog are aware, there is a conflict between state laws legalizing medical or recreational/adult marijuana use and federal law which continues to classify marijuana as an illegal drug. Despite federal law, the marijuana business is booming and states are rapidly changing their laws to allow some form legal marijuana (medical or recreational). Pennsylvania just enacted its own Medical Marijuana Act opening the door for entrepreneurs who want to be part of the medical marijuana business. As a Pennsylvania lawyer, it is my job to advise potential clients on federal, state and local laws and assist my client to navigate within those laws. However, there is a potential ethical problem with a client who wishes to start a medical marijuana business due to the tension between state law and ostensibly controlling federal law. Essentially, I would be advising and/or assisting a client to commit a crime and violate federal law (which theoretically could expose an attorney to federal liability).

Rule 1.2(d) of the Pennsylvania Rules of Professional Conduct states “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” (Emphasis added).

Comment 9 to Rule 1.2 states that Paragraph (d) “prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” (Emphasis added).

Comment 10 to Rule 1.2 essentially states that when the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client ……, must, therefore, withdraw from the representation of the client in the matter.

Rule 8.4 states, inter alia, that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

If an attorney provides legal advise and/or assists a client in the formation or operation of a medical marijuana business, the attorney could be found to have violated the Rules of Professional Conduct by advising and or assisting that client to commit a criminal act under federal law.

Other states with medical marijuana laws have addressed this conflict with differing conclusions. Both Ohio and New Mexico’s respective ethics committees have issued decisions saying that lawyers within those states who represent marijuana businesses or marijuana touching businesses would be helping clients violate federal law and. therefore, the lawyer would be violating the state’s code of conduct.

Other states such as Arizona, Colorado, Illinois, New York and Washington State have explicitly advised attorneys within those states that it is not a violation of the attorney code of conduct to assist clients with marijuana related businesses. While other states have passed statutes or enacted policies to protect attorneys advising and/or assisting clients with marijuana related businesses. Ohio is now looking to amend their rules of professional conduct to address this conflict.

“Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.” –  HENRY WARD BEECHER

While waiting for state and federal laws to be set to true time, Pennsylvania lawyers will continue to represent their clients and provide advice on and assistance with Pennsylvania’s Medical Marijuana Act. Any potential violations of the Rules of Professional Conduct can be dealt with a latter time should it become an issue.

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US Supreme Court Decision Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

On June 23, 2016, the U.S. Supreme Court decided that case of Birchfield v. North Dakota, 14-1468, in which the Court held that while implied consent laws relative to driving under the influence (DUI) may impose civil penalties, it is unconstitutional for them to impose criminal penalties for refusing to consent.

Specifically, as the Syllabus to the decision declares:

Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pg 36-37

So how does this affect your firearm rights?

Under Pennsylvania law, if an individual refuses his/her consent relative to a second (or third) DUI, the criminal grading becomes a misdemeanor of the 1st degree, which is federally prohibiting for purposes of purchasing and possessing firearms and ammunition. I previously blogged about a similar situation in Pennsylvania, when the Pennsylvania Superior Court decided Musau. Unfortunately, as a result of the Superior Court’s decision, the General Assembly amended the statute, so that anyone who refused consent on a second (or third) DUI would be penalized by a misdemeanor of the first degree, instead of an ungraded misdemeanor (which would not be prohibiting under state or federal law).

As a result of the U.S. Supreme Court’s decision in Birchfield, those individuals in Pennsylvania who have been convicted or pled guilty to a misdemeanor of the first degree as a result of a second (or third) DUI, due to their refusal to consent, have been subjected to an unlawful sentence and have a limited opportunity to file for relief under Pennsylvania’s Post-Conviction Relief Act (PCRA).

Therefore, if you or a family member were convicted of a second or third DUI, where you refused to submit to chemical testing, contact us immediately, as you have the ability to petition the court to have your conviction properly reflect the grading as an ungraded misdemeanor, which would not trigger a state or federal firearms disability.

As Federal Firearms Relief is not currently available and the Pennsylvania Board of Pardons does not with any frequency grant pardons to those who have been convicted of repeat offenses, this may be your ONLY extremely limited opportunity to obtain relief!

Contact Us Today to Discuss YOUR Rights and How We Can Restore Your Right to Keep and Bear Arms – info@princelaw.com or 888-313-0416

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Workers’ Compensation and Medical Marijuana

by Karl Voigt

This April, the Pennsylvania legislature enacted Act 16 of 2016 (the Medical Marijuana Program),which will enable patients with serious medical conditions to purchase marijuana to treat their symptoms. This is viewed as a conservative approach to the legalization of marijuana in certain circumstances, not a wholesale and liberal distribution of medical marijuana cards. The goal of the legislature was to assist patients suffering from very serious medical conditions in alleviating pain and improving the quality of their life.

This is still a fledgling Act and the Commonwealth is reporting that the process will not be 100% ready until as late as April of 2018. The legislature is still working on implementing regulations and procedures for patients, doctors, growers and dispensaries. Once in effect, patients will be able to purchase medical marijuana only in some forms, not including dried leaves. It will be legally available as a pill, oil, topical, vapor, tincture, or liquid.

Marijuana will be available to treat only serious medical conditions, as defined in the Medical Marijuana Act:

  • Cancer
  • HIV
  • Amyotrophic lateral sclerosis (ALS)
  • Parkinson’s disease
  • Multiple sclerosis
  • Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity
  • Epilepsy
  • Inflammatory bowel disease
  • Neuropathies
  • Huntington’s disease
  • Crohn’s disease
  • Post-traumatic stress disorder
  • Intractable seizures
  • Glaucoma
  • Sickle cell anemia
  • Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention or opiate therapy is contraindicated or ineffective
  • Autism
  • Terminally ill, where a medical prognosis of life expectancy of approximately one year or less if the illness runs its normal course
  • Ulcerative colitis

Most of our injured clients who qualify are going to have 1) damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity; or 2) severe chronic or intractable pain of neuropathic origin.

Because the Act conflicts with federal legislation that makes marijuana illegal, doctors can’t actually prescribe marijuana. Further, the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment. As a result, physicians in Pennsylvania can only recommend medical marijuana; it is merely a recommendation. Because the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment, very likely carriers will not be responsible for the cost of medical marijuana.

Because doctors will be able to apply for certification to recommend marijuana in October, any of our clients who are interested in pursuing medical marijuana will have to ask their treating physicians if they intend to go through the process. If so, that doctor will guide them through the process. Otherwise, they will have to find a doctor who has chosen to obtain certification. If this is the case, our clients are urged to secure their medical records from their treating physicians for subsequent review by a certified doctor.

For more reading, check out the Department of Health’s website. The full text of the Act can be found here.

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9th U.S. Circuit Court Of Appeals Says DOJ Can Not Prosecute Medical Cannabis Businesses That Comply With State Laws.

In a decision which can only be classified as a win for the marijuana industry, the U.S. Court of Appeals for the 9th Circuit in San Francisco (the “Court of Appeals”) ruled Tuesday August 16, 2016, that the U.S Department of Justice (the “DOJ”) must comply with a Congressional rider which prohibits the DOJ from spending money to prosecute cannabis businesses which comply with state medical marijuana laws. United States v. McIntosh, 2016 U.S. App. Lexis 15029. (the Court of Appeals consolidated ten cases on appeal arising out of orders in three districts and two state courts within the 9th Circuit). The Court of Appeals was asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the DOJ from spending funds to prevent states’ implementation of their own medical marijuana laws. The rider in questions, Rohrabach-Farr Amendment, was adopted originally by Congress in December of 2014 and has been extended repeatedly.

The rider states:

  • None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

In a nutshell, Defendants argued to the Court of Appeals that the DOJ violated the Appropriations Clause of the United States Constitution by spending funds which Congress said it could not. The Court of Appeals ruled that the DOJ is prohibited from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

The Court of Appeals further stated that if the DOJ wishes to continue with these prosecutions, Defendants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which they mean that Defendants strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. The Court of Appeals sent all of the cases back to the U.S. District Courts for evidentiary hearings to determine whether each defendant had complied with their respective state laws.

The Court of Appeals further noted that while the lack of funds to prosecute is currently temporary it may become more permanent if Congress continues to include the same rider in future appropriations bills. The other side of that coin as stated by Judge Diarmund O’Scannlain is that Congress could chose to restore funding to the DOJ at any time in the future and the DOJ could continue these prosecutions under Federal law.

While it is entirely possible that Congress could choose to not include the rider in any future appropriations bills and allow funding for DOJ prosecutions, I believe that Congress’ position will continue to reflect the growing national movement relaxing prohibitions against marijuana and medical marijuana. The Court of Appeals decision is a huge step forward in alleviating the fear Federal prosecution which may in turn spur greater investment in the medical marijuana industry.

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ATF’s Shocking Position on “Makers” of Silencers/Suppressors, Especially in Relation to Solvent Traps

As many of our readers are aware, Attorney Adam Kraut and I attended the NSSF’s Import/Export Conference on August 2-3, 2016, for which we blogged about many of the statements made by ATF (and other federal agencies) in our blog – News from the Round Table Discussions at the NSSF Import/Export Conference. One issue that we did not discuss is ATF’s statements during the Round Table Discussions relating to ATF’s position on “makers” of silencers/suppressors, especially relative to what been called “solvent traps.”

For those who are unaware, there are a number of business offering “solvent traps,” which are designed to thread on the end of one’s barrel to capture the solvent, typically in an oil or fuel filter threaded on the end.

Oil Filter Suppressor 1Oil Filter Suppressor 2.jpg

While the use of these devices for purposes of collecting solvent is questionable, many of these companies advise their customers that if they want to be able to use the solvent trap as a silencer/suppressor, the customer must first file a Form 1 with ATF to make a silencer and receive approval, before utilizing the solvent trap for purposes of being a silencer. (While we would advise our clients to file a Form 1 and obtain approval of ATF prior to even purchasing a solvent trap or similar device, so to prevent against constructive possession charges, such is beyond the scope of this article).

Under the National Firearms Act (“NFA”), 26 U.S.C. 5801, et seq, one who wishes to “make” an NFA firearm must file an application with the Attorney General, pursuant to 26 U.S.C. 5822. (Although the statute still references the Secretary (of the Treasury), when ATF was moved under DOJ in 2003, it changed to the Attorney General). Under the NFA, pursuant to 26 U.S.C. 5845, “make” is defined as to “include manufacturing (other than by one qualified to engage in such business under this chapter [26 USCS §§ 5801 et seq.]), putting together, altering, any combination of these, or otherwise producing a firearm.”  While the NFA, pursuant to 26 U.S.C. 5841, does differentiate between a “maker” and a “manufacturer” in relation to how one is to initially register an NFA firearm  and does define “make” as mentioned previously, nothing in the NFA differentiates between the rights of a “maker” and those of a “manufacturer.”

Nevertheless, during a discussion on ATF-29p (ATF’s Advanced Notice of Proposed Rulemaking relating to Silencer/Suppressor engravings), ATF’s Mike Curtis and Earl Griffith with the Firearms and Ammunition Technology Division (“FATD”) stated that ATF views “makers” of silencers/suppressors differently than “manufacturers.” Specifically, the example of solvent traps was brought up, where they stated that ATF’s position is that a “maker” of a silencer cannot replace a silencer part without filing a new Form 1, paying another $200.00 and obtaining approval from ATF; whereas, a manufacturer, may lawfully replace a silencer part in a silencer it manufactured, provided that the part that is being replaced is destroyed. While there does not exist any specific statutory provision to support this contention, Mr. Curtis went on to explain that an individual who files a Form 1 to make a “solvent trap silencer” can only use the original oil/fuel filter that is installed and is barred from replacing a previously utilized oil/fuel filter with a new filter, absent a newly approved Form 1.

While Mr. Curtis did admit that to his knowledge ATF has not been asked to make a determination on a solvent trap silencer, he was explicitly clear that if a determination request was filed (or criminal charges brought against someone in such a situation), ATF would specifically find and contend that a “maker” of a silencer/suppressor may not repair/replace any part of the silencer/suppressor without first obtaining another approved Form 1.

Obviously, ATF’s position has a great impact on the Firearms Industry, as many individuals have made their own silencers/suppressors, long before the solvent trap silencers, and have been under the impression that like a manufacturer of a silencer/suppressor, they may lawfully replace a part in that silencer, provided that they destroy the part being replaced.

While Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., does not agree with ATF’s position, we believe it is extremely important to advise those who have Form 1’ed their own silencer/suppressor of ATF’s position, since non-compliance could result in federal charging.

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FDA WON’T RE-SCHEDULE MARIJUANA BUT WILL ALLOW RESEARCH

The FDA has decided that it will not re-schedule marijuana under the Federal Controlled Substance Act but will allow more research of marijuana.   After months of speculation of whether the FDA would reschedule marijuana from a Schedule I drug to a Schedule II, the FDA is electing to take this half-hearted measure. The Federal government’s policy on marijuana has relaxed some in light of the nation’s changing laws and opinions toward marijuana -25 states have legalized medical marijuana and four states have legalized adult use or recreational marijuana.   However, the continued classification of marijuana as a Schedule I drug with no currently accepted medical use and a high potential for abuse does not reflect the views of the American people. A new Gallop poll shows that 1 in 8 – 13% – Americans currently use marijuana, and 43% said they have tried marijuana. Let’s face it, marijuana is no more harmful than alcohol and has been shown to have substantial benefits and applications to numerous medical conditions.

While only a baby step, it is welcome news to the marijuana industry that greater research will be allowed.   The change in Federal policy will allow universities and other licensed research facilities to grow and conduct research which will, hopefully, lead to greater supply of research grade marijuana and further changes in the law.   However, the federal government will likely create another level of regulation, and the criminal stigma and penalty associated with a Schedule I drug remains.

The move does represent a further relaxing of the views of the Federal government toward marijuana which first started with the DOJ’s Cole Memos.

The Federal government may publish the new policy as soon as today in the Federal Register.

For the DOJ’s explanation for rejected rescheduling, see DOJ Acting Administrator, Chuck Rosenberg, August 11, 2016 letter. DOJ Letter Rejecting Rescheduling

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