Montana: As Marijuana Use Booms, Law Enforcement Stymied

March 14, 2010 – The vagueness of a law intended to help ease the pain of patients has become a pain for law enforcement.

Keeping tabs on illegal marijuana users as well as protecting legal medical marijuana patients has been no easy feat for the Northwest Drug Task Force and its commander, Russ Papke.

According to Papke, Montana’s Medical Marijuana Act hampers law enforcement efforts several ways because it:

— Fails to track the locations of legal growing operations.

— Lacks zoning guidelines about where those operations can be located.

— Is vague on the issue of usage levels when operating machinery or showing up to work.

— Should better regulate caregivers.

The drug, legalized for medical use in Montana in 2004, recently has exploded in popularity.

The number of medical marijuana patients increased from around 100 in 2005 to 10,582 as of March 7, according to data from the Montana Medical Marijuana Program for the Montana Department of Public Health and Human Services.

Since January of this year, at least 3,275 patients have registered statewide.

Flathead County alone had 1,436 registered patients at last count.

The number of registered marijuana growers and suppliers — known as caregivers — also has increased statewide. Caregivers are legally defined as people 18 or older who take responsibility for managing the well-being of a person with respect to the medical use of marijuana.

There were from just 66 caregivers statewide in December 2005.

Now there are at least 2,635 in Montana. With 393 registered caregivers, Flathead County has the highest count in the state.

The drug is most commonly recommended for severe or chronic pain.

But not all of that marijuana is going where the law intended.

Papke said marijuana busts are down since medical marijuana was legalized, but not because of decreasing use of the drug.

“Most users are smart enough to go get a card whether they have a legitimate medical need or not,” Papke said. “The non-legit ones were breaking the law before anyway, so it certainly isn’t going to bother them to get a card for non-legitimate reasons.”

As a medical substance that isn’t quite a prescription drug, marijuana hovers between the illegal and the legitimate.

And a lack of clear guidelines about when it is which puts officers in a tricky place.

Although every patient and caregiver must provide his or her name, address and date of birth to the Department of Public Health and Human Services when registering for a card, the Medical Marijuana Act doesn’t expressly stipulate that the medical marijuana for each user or caregiver must be at the physical address listed on the card.

“You could have 20 people using one guy’s card, and he could have grows all over the place,” said Papke, adding that there would be no way for law enforcement to easily track it.

Also at issue is law enforcement access to a list of registered patients and caregivers.

The state health agency maintains a confidential list of people to whom medical marijuana registry identification cards have been issued.

“If we get a call Saturday morning about a marijuana grow, and nobody is there, we can’t confirm whether it’s a legal grow or not,” said Papke. “What I don’t want to do is confiscate a grow and charge people who have it legally. But I can’t find out until Monday whether it’s legal or not.”

Papke said the Northwest Drug Task Force and other area law enforcement would rather err on the side of caution than make an unlawful arrest, and subsequently will wait to investigate a suspicious situation rather than accidentally bust someone who might turn out to be a legal user or grower.

According to the Medical Marijuana Act, law enforcement can access the list of registered card holders “only as necessary to verify that a person is a lawful possessor of a registry identification card.” That means law enforcement must call the Department of Public Health and Human Services each time they investigate a suspicious grow operation. And the government office is only open on weekdays.

Chuck Council, spokesman for the Department of Public Health and Human Services, said law enforcement can get around this by doing prep work ahead of time by calling during the week, before a weekend bust.

But even if a grow operation is legal, its zoning is not addressed in the Medical Marijuana Act.

“I’ll get calls from people saying, ‘Hey, this guy’s got a marijuana grow in his kid’s bedroom’ and I say, ‘Well, the law doesn’t say anything about that. There’s nothing I can do about it,’” Papke said. “The main frustration I get is from parents, landlords, saying somebody has a marijuana grow in their house, and they want us to do something about it, and I can’t do anything about it.”

Kalispell, Whitefish and Columbia Falls — along with cities across Montana — are wrestling with the issue of how to implement zoning for marijuana businesses.

The Kalispell Planning Board last week recommended that the city follow federal law and ban all marijuana production, sales and use inside city limits.

The Medical Marijuana Act outlines usage limitations, but not as clearly as some would like.

Each patient and caregiver is allowed to have up to six marijuana plants and one ounce of usable marijuana. But personal consumption of medical marijuana is loosely regulated beyond that.

Smoking medical marijuana is prohibited in a school bus or other form of public transportation, on school grounds, in a correctional facility and at any public park, public beach, public recreation center or youth center.

Patients also may not “operate, navigate or be in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana or the smoking of marijuana.” However, there is no definition of what renders a person “under the influence.”

This issue has been likened to alcohol laws. Although it is legal to drink, only users with a blood-alcohol concentrations under 0.08 percent are legally able to drive. There is no such scale for marijuana users.

“If you were smoking three weeks ago and you get in a wreck and they [law enforcement] find any THC in your system, technically, they can charge you for driving under the influence of drugs,” said Papke, who added that marijuana can stay in the system of a regular user for up to 30 days.

One unsuccessful Montana Senate bill in 2009 would have established legal limits for the concentration of THC (tetrahydrocannabinol, the hallucinatory active ingredient in marijuana) in the bloodstream.

BEING UNDER the influence of marijuana at the workplace also is an issue.

The law states that “nothing in this chapter may be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” That phrase was the basis of the Montana Supreme Court’s rejection of a wrongful termination lawsuit in April 2009.

In 2006, Mike Johnson of Kalispell was fired from Columbia Falls Aluminum Co. after he tested positive for marijuana during a random drug test. The company said the longtime employee could return to work if he passed additional drug tests. He refused and was fired.

Johnson filed a lawsuit, but Flathead County District Court ruled against him and the subsequent appeal to Montana Supreme Court was rejected.

Papke said the law also could do a better job protecting patients.

One way would be to provide law enforcement with a cross reference of patients and caregivers, which could help authorities make sure caregivers actually are providing for their patients.

“A lot of these guys who like to sell illegally, they’ll put an ad in the paper saying, ‘I’m a marijuana caregiver,’” Papke said. “They could get 40 cards, but then the patient will never hear from that guy again. He’s selling his weed illegally, but when we go to the grow, he’s got cards for each of those people.”

Of the 14 states that have legalized medical marijuana, nine have amended their laws. Most of these amendments concern patient registry, possession amounts and the medical conditions for which the drug can be recommended.

Six bills addressing the Medical Marijuana Act were proposed during the 2009 legislative session. Four died in standing committee, one was canceled and one became law, effective Oct. 1, 2009.

That law clarified that a person who is a designated caregiver may not use marijuana and may use drug paraphernalia only in limited circumstances.

Tom Daubert, founder and director of Patients and Families United who was involved in the final phase of drafting the 2004 Medical Marijuana Act, said he expects the 2011 Legislature to consider changing the law.

“There is no question there are a number of vague, complicating things in the law,” he said, which has made it difficult not only for law enforcement but for patients and caregivers. “My goal is to come up with a consensus proposal.”

He wants a “cradle to grave” approach that tracks the marijuana from seed to patient, regulating producers and distribution. That, he said, would help to clear up some of the law’s foggy areas.

By Melissa Weaver.

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