SPECIFIC PROTECTIONS AND PROHIBITONS FOR PATIENTS UNDER PENNSYLVANIA’S MEDICAL CANNABIS ACT

In my previous blog, I note that as a result of the restrictions and expense, medical cannabis (“MC”) patients may elect to purchase marijuana illegal. The most obvious benefit to being a registered MC patient is that you are free from arrest for use, transportation and/or possession of MC so long as the individual is in compliance with the applicable terms of Pennsylvania’s Medical Cannabis Act, Senate Bill3 (“SB3”). Generally, a MC patient will be treated like any other individual taking prescribed medications that could impair his or her functioning.

Under SB3, there are the following explicit protections for MC patients:

– For the purposes of medical care, a person’s authorized use of MC shall be considered the equivalent of the use of other medicine used under the direction of a health care provider. MC may not be considered an illicit substance or otherwise disqualify a patient from medical care.
– A person may not be denied child custody due to use of MC.
– A person may not be presumed to neglect or endanger a minor child due to use of MC, unless the person’s behavior creates an unreasonable danger to the safety of the minor by clear and convincing evidence.
-A landlord may not refuse to lease or otherwise penalize a person because of
possession of an MC card or for using MC, unless the landlord would lose a monetary or licensing-related benefit under federal law or regulation.
-A school may not refuse to enroll or penalize a person because of a possession of an MC card or for using MC, unless the school would lose a monetary or licensing-related benefit under federal law or regulation.
-An employer may not discriminate against a person in the hiring or termination
of a person due to possession of an MC card. However, the employer can take the possession of an MC card into account if the employer can prove the person is abusing or misusing MC on the premises of the place of employment during ordinary hours of employment or if failure to do so would cause an employer to lose licensing benefit under federal law or regulation. A positive test for marijuana may not be considered by an employer unless the person unlawfully used, possessed or was impaired by the MC while on the premises of the place of employment or during the hours of employment.

SB3 also includes the following prohibitions and uses:

– No individual may operate or drive a motor vehicle, an aircraft, a motor boat, or heavy machinery with more than 10 nanograms of THC in their system.
– No individual may undertake any task under the influence when doing so would
constitute negligence or professional malpractice.
– MC may not be used by an individual who is not authorized under this act.
– No individual may smoke or utilize a vaporizer to ingest or inhale MC.
– MC may be used in any public place, including public transportation, on school
grounds, in a correctional institution or a public park or beach.

SB 3 provides that it is a criminal offense to (1) grow, process, or dispense MC without a license; (2) transport MC from or between an unlicensed grower, processor, or dispenser; (3) grow, process or dispense MC in violation of the act; (4) fail to report or pay a fee under the act; or (5) violate a regulation of the board.

A person who falsifies an application or certification commits a misdemeanor of the first degree. Otherwise, a violation of the act is graded as a misdemeanor of the second degree. A second or subsequent offense is graded as a felony of the third degree.

Possession or application for a MC access card may not alone constitute probable cause to search a person or a person’s property. Initially, there is likely to be some litigation on what constitutes probable cause to search a patient with a medical access card. This grey area being created by the language in SB3 may spur criminal and civil rights litigation.

For registered MC patients, the use of MC is not illegal so long as it not abused and taken within the guidelines of the Act. SB3 represents a legal shift from classifying marijuana as an illegal drug with no practical applications to classifying it as a medication with beneficial uses and applications. Something the vast majority of Pennsylvania’s population already believe.

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4 Comments

Filed under Marijuana Law, Uncategorized

4 responses to “SPECIFIC PROTECTIONS AND PROHIBITONS FOR PATIENTS UNDER PENNSYLVANIA’S MEDICAL CANNABIS ACT

  1. K Lehman

    What about when answering question 11(e) on a Form 4473? Would a person be lying under federal law if using Marijuana with a PA authorized prescription? As you have obviously stated marijuana is still a class 1 prohibited substance under federal law.

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    • That’s s very good question without an easy answer. Question 11e on ATF Form 4473 requires you to answer yes or no to whether you are an unlawful user of, addicted to, mariijuana …or other controles substancies. On a State levei, a MC patient is not an unlawful user. But on federal level, marijuana is still illegal. Per the US Deputy Attorney General’s August 29, 3013 Memo providing guidance on marijuana enforcement, a patient is not the focus of the Federal Government’s enforcement efforts and would not be prosecuted for use. However, you are still open to prosecution for making a false statement. There have been some cases in Oregon and Colorado dealing with the issue. See Willis v. Winters (http://law.justia.com/cases/Oregon/supreme-court/2011/s058645.html). In that case, the Oregon Supreme Court held the Federal Gun Control Act did not preempt the state’s handgun licensing statute and ordered the sheriff’s to issue or renew the required concealed handgun licenses.

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  2. Does the MC access card refer to a card issued to a user or a person on medical assistance ?

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