Bracing For Impact Of Medical Marijuana

By: Michael C. Bailey
Published: 12/04/12

In one month Massachusetts will become the 18th state to make marijuana available as a medication, and Falmouth’s chief of police is bracing for the impact as best he can amidst a lack of information from the state.

“This is all new territory for us. It’s going to be interesting…there are a lot of loopholes and issues with this,” said Edward A. Dunne, acting chief of the Falmouth Police Department. “It’s here, so now we have to deal with it.”

Voters approved legalized medicinal marijuana during last month’s election via a binding referendum question. The question passed by a nearly two-thirds majority, over objections by the Massachusetts Chiefs of Police Association, the Massachusetts Medical Society, the Massachusetts Organization for Addiction Recovery, and other state and national organizations.

The new law, which goes into effect on January 1, allows legal marijuana possession for individuals diagnosed with certain “debilitating medical conditions,” including but not limited to cancer, glaucoma, HIV or AIDS, Parkinson’s disease, amyotrophic lateral sclerosis, and multiple sclerosis.

Patients would need a doctor’s certification in order to legally obtain and possess medicinal marijuana. The law allows individuals who possess a special state-issued card to carry on their person a “60-day supply” of marijuana as determined by the Massachusetts Department of Public Health (DPH), and that is the first potential problem, according to Chief Dunne.

“What is going to be a 60-day supply?” the chief said, noting that other states that allow medical marijuana possession have defined a 60-day supply as 24 ounces of “usable marijuana”—enough to be defined under normal circumstances as “possession with intent to distribute.” That charge is punishable by up to two years in jail and/or a $500 fine for a first offense.

That is one of many questions that at present have no answers as the DPH is in the process of developing regulations that could fill in some of the loopholes. The law goes into effect on New Year’s Day regardless of whether those regulations are in place.

Many of the loopholes stem from the apparent conflict between existing federal and state drug laws, and Chief Dunne said it is currently unknown whether those laws, or even workplace drug use policies, can be enforced against someone with a legitimate medical marijuana prescription.

“I think a lot of this is going to be played out in the court,” he said.

One example of the conflict: under state law, possession of a Class D controlled substance within 1,000 feet of a school or 100 feet of a public park is a more serious offense than simple possession—a felony versus a misdemeanor or, if the amount is under one ounce, a civil infraction—but the wording of the ballot question does not explicitly apply that law to anyone with a legitimate prescription for medical marijuana.

“The proposed law would…not supersede Massachusetts laws prohibiting possession, cultivation, or sale of marijuana for nonmedical purposes,” the question reads, and according to Chief Dunne, that means a person with a prescription could possess marijuana within 1,000 feet of a school without penalty.

The ballot question does allow workplaces, schools, youth centers, or correctional facilities the right to restrict on-site marijuana use by a prescription holder; still allows police to arrest someone for operating a motor vehicle while under the influence of marijuana; and does not “grant immunity under federal law or obstruct federal enforcement of federal law.”

Chief Dunne said the law also does not prevent police from pursuing distribution charges against a prescription holder who is selling his marijuana for a profit, and there are increased penalties for individuals caught selling their marijuana supply.

Where To Place Dispensaries?

A prescription holder’s supply would in many cases come from one of the 35 state-licensed dispensaries—maximum five dispensaries per county—that were approved as part of the law. The ballot question did not address siting issues so communities had maximum flexibility when deciding where to permit dispensaries—if they chose to allow them at all.

Medical clinics in Framingham and Cambridge are getting ready to begin assessing patients seeking medical marijuana prescriptions—they do not plan to become dispensaries—while several other communities are looking at their zoning bylaws to control where dispensaries may be placed.

“I know some communities that have banned them outright” through zoning restrictions, Falmouth Town Planner Brian A. Currie said. Those communities include Hudson, Melrose, Saugus, and Wakefield, which have blocked or are working to block dispensaries through zoning.

Mr. Currie said his department has “had some staff-level discussions” about dispensaries, including where they might go in town and what sort of business they would be, e.g., would they be retail stores or would they qualify as medical establishments, “and I expect we will have something in time for [Spring] Town Meeting.”

The Falmouth Planning Board has not yet discussed the issue, but the chief expected he would work with the board to help address issues such as possible legal restrictions on where a dispensary could go, i.e., if it could be allowed near a school, park, playground, or other area where youth gather.

So far the only hint that a dispensary could open on Cape Cod is a comment made by Allen St. Pierre, executive director of the National Organization to Reform Marijuana Laws, in a MassLive.com interview: “There are well-heeled businesspeople at country clubs on Cape Cod, discussing how to fund businesses and how to make sure there are licensed dispensaries both in Hyannis and in Provincetown.”

Chief Dunne expected that Falmouth, as the Cape’s second-largest population center, could also be identified as a location for a dispensary.

Zoning issues could arise when discussing home-growing operations, which are allowed under the new law in certain circumstances: patients who can prove a financial hardship, or who live too far away from a dispensary to access it easily, would be allowed to grow their own marijuana for personal medicinal use.

Such home-growers would have to register with the DPH, could grow only enough at a time to maintain a 60-day supply—15 plants, as defined in other states—and must keep the growing operation in a “closed, locked facility.”

“Who’s going to monitor that?” Chief Dunne asked.

Chief: Crime, Use Will Rise

The provisions for marijuana possession, home cultivation, and dispensaries, all lay the foundation for an increase in criminal activity, Chief Dunne said.

“If you follow history in other states, they state to see an increase in crime in and around where the dispensaries are,” he said, “and that is either because the dispensaries are being robbed or their clients are being robbed.”

Data cited by law enforcement agencies such as the Northern Colorado Drug Task Force and the Montana Department of Justice’s narcotics bureau support his claim. Conversely, the Marijuana Policy Project disputes those findings and cite in response numerous studies conducted in states with marijuana dispensaries, which indicate that crime rates did not increase, and robberies connected to dispensaries were comparable in number or fewer than the number connected to banks and liquor stores.

The chief also predicted a spike in recreational marijuana use by non-prescription holders, particularly teens. He cited a recent study by Stacy Salomonsen-Sautel, Ph.D., a post-doctoral fellow at the University of Colorado Anschutz Medical Campus, Division of Substance Dependence, that found that 74 percent of teenagers in substance abuse treatment programs had obtained marijuana from someone with a legitimate prescription.

“There’s already been an increased use of marijuana with the decriminalization of marijuana,” Chief Dunne said, referring to the 2008 ballot question that reduced possession of one ounce of marijuana or less from a misdemeanor to a civil offense.

No official state studies on the impact of marijuana decriminalization on recreational use have been conducted, but Chief Dunne noted that Massachusetts is currently dealing with a serious prescription drug abuse epidemic. The most recent statistics from the DPH’s Bureau of Substance Abuse Services state that 69 percent of the 867 deaths by poisoning recorded in Massachusetts were caused by an overdose of legal and illegal opioids, making it the leading cause of accidental death.

Earlier this year the Legislature passed a law to crack down on the practice of “doctor shopping,” in which a patient goes to several doctors in order to obtain multiple prescriptions for personal, recreational use and/or to sell for cash.

The law requires anyone seeking a prescription for medical marijuana to have “a bona fide physician-patient relationship” with the issuing doctor, language intended to address the doctor-shopping concern, but Chief Dunne said the 60-day supply provision could still provide individuals with enough marijuana to sell off without impacting their personal-use supply.