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Medical marijuana: Board of Health passes new driving rules, caregiver language (PHOTOS)

Cannabis Therapy Institute's Laura Kriho raised concern about new regulations to be enacted by the Board of Health at a meeting yesterday. And following the marathon session, she's still worried, especially about what she sees as "a backdoor method to create a new crime: DUI-MM" -- driving under the influence of medical marijuana.

Not that board members discussed this language, which appears to echo a bill to set a THC driving limit of 5 nanogram per milliliter of blood. The bill died in the state legislature this past session following news that Westword medical marijuana critic William Breathes tested at nearly triple the proposed limit when sober.

Instead, yesterday's get-together, which lasted from 9 a.m. until mid afternoon, focused on a new requirement for caregivers to do something more than simply provide medical marijuana -- a pet issue of Colorado Attorney General John Suthers. Earlier this year, his office rejected recommended tweaks by the now-disbanded medical marijuana advisory committee that omitted this dictate.

Ron Hyman, administrator of the CDPHE Medical Marijuana Patient Registry, and Ann Hause, the Office of Legal and Regulatory Affairs director.
Ron Hyman, administrator of the CDPHE Medical Marijuana Patient Registry, and Ann Hause, the Office of Legal and Regulatory Affairs director.
Courtesy of Cannabis Therapy Institute

According to Kriho, the day was filled with testimony from law enforcement figures, including one who called the new definition the "lynchpin" of efforts to bust individuals growing illegally by posing as caregivers.

"The general attitude of the board was to do everything the police asked and nothing the patients wanted," she maintains. "One of the board members asked, 'If this is really going to be so important to law enforcement, how are you going to find out if the caregiver is doing more than just providing marijuana?' And the police said, 'We'll have to interview them, talk to the patients and the caregiver' -- which is why, when it was my turn to testify, I said, 'I can't believe this is the board of health. It seems more like the Spanish Inquisition -- inviting law enforcement into a caregiver's house to ask how many times they wiped a patient's ass that day.

"The whole point of Amendment 20," which legalized medical marijuana in Colorado, "was to get police out of this, so caregivers and patients could use marijuana for medical purposes without fear of the police. And now they're inserting the police into the middle of the process."

Kriho also mentioned the driving issue, as well as other points she raised in a sample e-mail on view below. In response, she says the board gave her "blank stares." In addition, two advocates were ejected -- Colorado Coalition for Patients and Caregivers' Robert Chase, who's been booted from more than his share of public meetings, and another patient. And many of those who stuck around were dejected. "We had multiple people crying because of the board's attitude," Kriho allows.

The board and the attendees.
The board and the attendees.
Courtesy of Cannabis Therapy Institute

The Denver Post quoted board president Laura Davis arguing that the caregiver change isn't as big a deal as advocates believe. But for Kriho, there are more problems lurking in the shadows.

Page down to see more photos courtesy of the Cannabis Therapy Institute, as well as the aforementioned e-mail objecting to other elements passed by the Board of Health yesterday.

Crazy For Justice's Corey Donahue.
Crazy For Justice's Corey Donahue.
Courtesy of Cannabis Therapy Institute

Patient and Caregiver Rights Litigation Project's Kathleen Chippi.
Patient and Caregiver Rights Litigation Project's Kathleen Chippi.
Courtesy of Cannabis Therapy Institute

Michael Marcella, a patient advocate and member of the CDPHE's medical marijuana advisory committee.
Michael Marcella, a patient advocate and member of the CDPHE's medical marijuana advisory committee.
Courtesy of Cannabis Therapy Institute

The Medical Marijuana Industry Group's Michael Elliott and Kara Miller, who attended but did not testify.
The Medical Marijuana Industry Group's Michael Elliott and Kara Miller, who attended but did not testify.
Courtesy of Cannabis Therapy Institute

Cannabis Therapy Institute sample e-mail to the Board of Health:

To the Board of Health:

In regards to the proposed Amendments to Rules and Regulations Pertaining to Medical Use of Marijuana (5 CCR 1006-2) for patients and caregivers, please accept these comments for the official record.

Rules for Patients

1) I object to Regulation 12 (C) (6), which states that a patient shall not "operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat while under the influence of medical marijuana." There is no proof that marijuana causes impairment in operation of a motor vehicle. This criminalizes patients with debilitating medical conditions, who must continuously medicate to control their chronic conditions. The state statutes regarding "driving under the influence of drugs" (DUID) is already adequate. The CDPHE does not have the authority to create a new crime called "DUIMM".

2) I object to Regulation 12 (C) (1), which states that a patient shall not "undertake any task while under the influence of medical marijuana, when doing so would constitute negligence or professional malpractice." This regulation is vague, unenforceable, and potentially harmful to patients. It is without any rational basis.

3) I object to Regulation 2 (B) (2), which states that the Patient Confidential Registry application may now contain a space for a Medical Marijuana Center to be listed. The CDPHE has no authority to collect information on Medical Marijuana Centers (MMC). Article XVIII, Section 14 of the Colorado Constitution, Colorado's medical marijuana amendment, only authorizes the CDPHE to collect the name of the patient and the patient's caregiver, if designated, and to keep this information confidential.

Additionally, the CDPHE has no regulatory authority over MMCs, which are regulated through the Department of Revenue. The collection of MMC information by the CDPHE shows their intent to share this information with the DOR, in violation of patient privacy guarantees in the Constitution. The Board of Health shall pass no rules that infringe on patient's constitutional right to confidentiality or that allow the CDPHE to share information with the DOR.

4) I object to Regulation 2 (E), which states that a patient may change his primary caregiver once per month. First, the CDPHE has no authority to state how often a patient may change caregivers. Additionally, under DOR rules, a patient cannot change his MMC more than once every 120 days. The CDPHE Regulatory Analysis stated that the reasoning behind this was to protect the investment of the cannabis medicine provider, by allowing the plants to get through a 3 to 4 month grow cycle. In this light, this provision is unfair to caregivers, as they will not have their investment protected for as long as MMCs.

5) I object to Regulation 2 (I), which states that patients who have been convicted of a criminal drug offense, ordered by a court to drug or substance abuse treatment, or sentenced to the division of youth corrections must reapply to the registry if they wish to continue in an active status on the registry. This regulation unfairly punishes patients who have been convicted of, or forced to plead guilty to, any kind of drug offense. Drug convictions do not have any bearing on a person's right to use medical marijuana under the Constitution. There is no rational basis for this regulation.

Rules for Caregivers

1) I object to Regulation J (6), which states that a primary caregiver shall not "operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat while under the influence of medical marijuana." There is no proof that marijuana causes impairment in operation of a motor vehicle. This criminalizes patients with debilitating medical conditions, who must continuously medicate to control their chronic conditions. The state statutes regarding "driving under the influence of drugs" (DUID) are already adequate. The CDPHE does not have the authority to create a new crime called "DUIMM".

2) I object to Regulation J (3), which states that a primary caregiver shall not "undertake any task while under the influence of medical marijuana, when doing so would constitute negligence or professional malpractice." This regulation is vague, unenforceable, and potentially harmful to patients. It is without any rational basis.

3) I object to Regulation 9 (C), which states that the CDPHE is going to start collecting names of people who want to be primary caregivers, but don't have any patients, and allow the CDPHE to give names of caregivers to any registered patient. The CDPHE has no authority to collect names of primary caregivers. This appears to be another way for the CDPHE to help the DOR create the database of everyone even remotely interested in growing medical cannabis in Colorado. There is no authority for this in the Constitution or in statute.

3) I object to Regulation 9 (L), which states that if patients do not require caregiver service other than the provision of medical marijuana, then the patients shall not designate a primary care-giver. This violates patient's Constitutional right to use their caregiver of choice. If a patient does not need additional services, the CDPHE has no authority to deny the patient the right to use their husband, wife, brother, sister or anyone from serving as their caregiver. This regulation is cruel and malicious and has no rational basis.

I respectfully submit these comments.

Sincerely,

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