HELENA – Lawmakers looking at ways to fix the state’s medical marijuana law want to remove a provision that makes it tough on law enforcement to prove a crime is being committed — one of dozens of proposed changes likely headed to the full Legislature next year.
A legislative subcommittee began refining its proposals amid growing concern that little regulation is leading to misuse of the medical marijuana law voters approved in 2004.
Nearly 20,000 people held medical marijuana cards in Montana by the end of June — way more than the 842 who held cards less than two years ago.
Police and prosecutors have been frustrated with what they see as a number of gray areas in the law that make it hard for them to tell when marijuana and its use is legal or illegal.
A legislative subcommittee reviewing the issue Monday decided it would be best to get rid of the affirmative defense provision, which sets a higher standard for police and prosecutors to prove a medical marijuana user committed a drug crime.
The Montana County Attorney’s Association told the subcommittee of the Children, Families, Health and Human Services Committee that there is no way to tell what is legal medical marijuana and what is illegal marijuana.
“What they are looking for is a clear bright line between what is legal and allowable and what is not,” said Jim Smith, representing the group.
Democratic Gov. Brian Schweitzer has recently suggested that medical marijuana be genetically branded.
The subcommittee made the recommendation to remove the affirmative defense, along with others recommendations that will be wrapped up in an August meeting. Those will then go to the full committee, which is expected to forward most, if not all of them, as proposed laws for the 2011 Legislature to consider.
Medical marijuana users and business owners worried that the lawmakers would regulate them out of existence, and they warned the panel not to be too heavy-handed. At the same time, they agree some changes are in order.
Tom Daubert, who worked on the original initiative and now is in the medical marijuana business, said the affirmative defense is in place to make sure that someone can be allowed to use the medical use as a reason for possession.
“It was merely to allow someone that was receiving medical benefit to allow that person to defend themselves in court,” Daubert said of the provision. “The affirmative defense was meant to keep that opening available to people in Montana.”
Rep. Diane Sands, D-Missoula, said the overall goal is to change the law to reflect what lawmakers believe voters intended when they overwhelmingly endorsed the idea six years ago.
“We have gotten an enormous amount of information. We have had repeated hearings,” Sands, who is leading the subcommittee, told medical marijuana supporters. “This discussion is just one step in a very long process.”
Recommendations include a requirement that those with medical marijuana approval carry a card with them. The panel is also trying to figure out the best way to regulate the industry and the caregivers who grow and sell the marijuana.
Other changes the panel agreed are needed include a ban on felons or those with misdemeanor drug charges from being caregivers, and a requirement that medical marijuana must be grown in Montana.
Jim Gingery, executive director of the Montana Medical Growers Association, said his group is still coming up with its own proposal for a regulatory board for lawmakers to consider. He cautioned lawmakers from going too far.
“Maybe the perception is that it is out of control, but perhaps it is not as out of control as you think,” he said.
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