Evidence From The Statute For Dispenaries: Patients Can Obtain Marijuana From A Secondary Caregiver

[peanutbutter]

A person

[Herb Cannabis]

http://www.procon.or...oposal_2008.pdf

 

Thank you, you are a credit to our community.

[CaveatLector]

Does the same hold true for "a person" asked to pick up medicine from a caregiver?

 

Seriously, the idea that a family member cannot pick up medicine for a severely debilitated patient is a nonsensical interpretation. It is basic assistance.

"Basic assistance" is not in the law. The "assistance" must be provided in the "using or administering." The fact that the law uses those words (present tense) and together tells me that the intent is to allow a person to help with immediate use. Similar to giving a diabetic an injection. There are not many provisions in this law that I would bet the farm on but this is one I would. Using and administering is something LESS than medical use.

[CaveatLector]

I am starting to think that the problem is all of the line drawing. This law was supposed to "permit" medical use. These strict interpretations are doing the opposite.

Well, that could be. But, regardless, the law will be interpreted using tenets of statutory construction and interpretation. Giving the law a liberal meaning generally means that if there is a question on a provision where you are 50/50 that you will err on the side of a liberal answer. A liberal interpretation doesn't mean the sky is the limit.

[CaveatLector]

A person

That's your definition of deliver?

[peanutbutter]

So if it means medical use then the authors would have used that term.

 

So that logic applies to 4(i) but not 4(e)?

Edited February 7, 2013 by peanutbutter

[CaveatLector]

So that logic applies to 4(i) but not 4(e)?

How do you mean?

[CaveatLector]

You just aren't following this conversation, are you? There is no point in discussing this if you are going to be obtuse. 4e uses the term MEDICAL USE. Medical use is DEFINED in the statute. 4i does NOT use the same term. What is it you are missing here?

[peanutbutter]

It comes down to the word "assist."

 

Is it the same word as in 4(b)?

 

Which is where my conversation with Greg Schmid ended. At hash Bash 2009.

 

And we can only wait until the Supremes sing their song .... As I've been waiting every since.

 

COA has said a couple times now that transfers are legal.

 

The monetary issue is a joke.

[CaveatLector]

Very telling is the fact that 4i specifically mentions medical use but does not allow "a person" to assist in medical use. It clearly tells us that a person can be in the vicinity of medical use. 4i reads:

 

(i) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

 

it doesn't read:

 

(i) A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity,

or for assisting in the

medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.

 

Why would the drafters specifically exempt a person from penalties for being in the vicinity of medical use but make no mention of assisting in the medical use if, in fact, they intended for a person to be protected for assisting?

[CaveatLector]

It comes down to the word "assist."

 

Is it the same word as in 4(b)?

 

Which is where my conversation with Greg Schmid ended. At hash Bash 2009.

 

And we can only wait until the Supremes sing their song .... As I've been waiting every since.

 

COA has said a couple times now that transfers are legal.

 

The monetary issue is a joke.

It doesn't come down to that word. It comes down to the definition of "using or administering."

 

You can call the monetary issue a joke all you want but the fact is that when you throw in money you get a sale. If you have a sale then you very clearly don't have possession or ownership of something until AFTER the transaction. So money matters. If you are going to argue that "a person" simply went to the neighbors to "get the pt's mj" then the exchange of money for it makes it clear that it WASN'T the pt's mj until after the exchange. Therefore you cannot then argue that the person was just assisting in using.

 

You are missing a giant piece of this pie with your arguments.

[Restorium2]

I'll just put this scenario out there and see what people think, as it is one of the most commonplace and important scenarios this law was meant to cover.

 

Let's say I have a family member that is being treated for cancer with chemotherapy. In EVERY SINGLE CASE I have personally dealt with, the need for medical marijuana to treat nausea symptoms comes on very suddenly, as a result of the failure of medicines that were previously working. My family member is now extremely sick and needs relief, the pharmaceuticals are not working, and I am now willing to try marijuana. RIGHT NOW.

 

So, is the person that chooses to go into town and buy a little bag of marijuana:

1) a person, covered under 4i, or

2) an unregistered caregiver?

That is EXACTLY and EXCLUSIVELY why there is a section of the law for the unregistered. The person became an unregistered caregiver when they decided to help the patient that HAS SEEN a doctor that has recommended marijuana to help with the side effects of cancer, or other diseases, and their treatment. The protections would mirror section 4. The only difference would be that if law enforcement didn't believe you were truely qualified(after they became aware of your activity) then they could make you prove your qualifications in court, because you were not pre-approved by LARA(registration). I have my mind firmly wrapped around that.

[CaveatLector]

I'll just put this scenario out there and see what people think, as it is one of the most commonplace and important scenarios this law was meant to cover.

 

Let's say I have a family member that is being treated for cancer with chemotherapy. In EVERY SINGLE CASE I have personally dealt with, the need for medical marijuana to treat nausea symptoms comes on very suddenly, as a result of the failure of medicines that were previously working. My family member is now extremely sick and needs relief, the pharmaceuticals are not working, and I am now willing to try marijuana. RIGHT NOW.

 

So, is the person that chooses to go into town and buy a little bag of marijuana:

1) a person, covered under 4i, or

2) an unregistered caregiver?

Undoubtedly a cg has more protections than "a person." A cg can assist with using and administering as well as everything else contained in the definition of medical use. The answer here turns on what the person did. If they bought the mj then they are an unregistered cg. Why? Because buying is not assisting in using or administering. It is assisting in acquiring.

 

You need to start with the definition of medical use. The cg can assist (per 4b) in medical use. Medical use includes USE and it ALSO includes ADMINISTRATION--as well as many other things. So medical use provides more protection.

 

If using and administering somehow includes transfer then why would the author include use, administration, AND transfer within the definition of medical use? Furthermore, if the author intended the same protections for "a person" as for a cg then why did they use "using and administering" rather than medical use? Or, if they intended more limited protections than a cg but intended that a person was protected for transfer then why didn't they write, "using, administering, or transfering?" Why? Because they didn't mean that. You can argue until you are blue in the face that "using and administering" includes transfer (or other elements) but doing that makes you question why the drafter used use and administration AS WELL AS TRANSFER in the definition of medical use.

[peanutbutter]

You just aren't following this conversation, are you? There is no point in discussing this if you are going to be obtuse. 4e uses the term MEDICAL USE. Medical use is DEFINED in the statute. 4i does NOT use the same term. What is it you are missing here?

 

Actually trying to follow several at the same time. Not to mention the work and travel I need to get done today.

 

4(e) is not limited by 4(b). Construction .. Each subsection stands on it's own. And that subsection is modified by it's own subsections. For logic tree purposes 4(b) is irrelevant to 4(e). There are exceptions, such as the control exerted by a definition. If 4(b) redefines "primary caregiver" then it only applies to 4(b) and has no weight on 4(e) or (i).

[Restorium2]

This is ridiculously divergent from the ballot language, as well.

You had it right up there a few posts ago. It's clear and concise. Makes all the sense in the world if you understand the actual situation. As soon as you go past a caregiver and their patient you are overreaching the law we have.

[OG Fire Beaster]

So if this is the medical marijuana act does it provide for some sort of protection that is not related to medical use. If 4(e) is not medical use then what other type of use is it? Recreational use? Should not all using and administering that is giving a protection automatically be considered medical?

[CaveatLector]

Actually trying to follow several at the same time. Not to mention the work and travel I need to get done today.

 

4(e) is not limited by 4(b). Construction .. Each subsection stands on it's own. And that subsection is modified by it's own subsections. For logic tree purposes 4(b) is irrelevant to 4(e). There are exceptions, such as the control exerted by a definition. If 4(b) redefines "primary caregiver" then it only applies to 4(b) and has no weight on 4(e) or (i).

Entirely untrue. A statute is to be read as a whole. You cannot parse a law. In fact, your claim means the definition section isn't relevant to section 4.

 

But none of that even matters because 4i doesn't need 4b to make it clear that 4i offers much more limited protection than 4b. I am not saying 4i depends on 4b. I am saying it is more limited. So whatever protections offered in 4b are broader than in 4i.

 

I really don't know how I can make this any clearer. I think you aren't understanding because you choose not to understand. I think you are being deliberately obtuse. Everything that needs to be said has already been written in my foregoing posts.

[CaveatLector]

So if this is the medical marijuana act does it provide for some sort of protection that is not related to medical use. If 4(e) is not medical use then what other type of use is it? Recreational use? Should not all using and administering that is giving a protection automatically be considered medical?

No one is saying that 4e is not medical use. I don't think you are following here.

[OG Fire Beaster]

Assisting with using or administering is NOT the same thing as the statutorily defined, "medical use." You cannot apply the medical use definition to that phrase. If they meant medical use they would have written, ". . . for assisting with medical use."

 

I'm probably not.lol.

 

So in this instance, is assisting with using or administering, a different type of use then medical use. What other type of use is this protecting? If it is not medical use then may I "assist with using or administering" someone with recreational use?

[CaveatLector]

If it is not medical use then may I "assist with using or administering" someone with recreational use?

Does the statute say you can?

[OG Fire Beaster]

That part is from i not e. Sorry about the confusion.

[GregS]

"4(e) defines transactions as not being sales. Any transaction between A primary caregiver and A patient. Section 3 defines what a caregiver is. NOT 4(b)."

 

I cannot agree. It is indeed a sale. What it is not is the sale of a controlled substance. Essentially this means that a qc is protected in such a sale from prosecution for a transaction involving contraband.

Edited February 7, 2013 by GregS

[OG Fire Beaster]

At this point I have no idea what any of it says. Haha.

 

It definitely does not say that Pt/Cg can help with recreational use.

 

I am just trying to figure out what other type of use their is if it is not all medical use.

Edited February 7, 2013 by OG Fire Beaster

[CaveatLector]

At this point I have no idea what any of it says. Haha.

 

It definitely does not say that Pt/Cg can help with recreational use.

 

I am just trying to figure out what other type of use their is if it is not all medical use.

Read through the thread please. You'll catch up.

[CaveatLector]

So are we actually saying that a family member cannot pick up medicine for a patient from their own caregiver? I don't agree with that.

You tell me. Does that constitute using or administering?