An Initiative Measure

Drug Medicalization, Prevention, and Control Act of 2002

An Initiative Measure amending Title 13, Chapter 6 by adding Section 13- 610, Arizona Revised Statutes; amending Section 13-901.01, Arizona Revised Statutes; amending Title 13, Chapter 34, by amending Section 13- 3413 and adding Sections 13-3405.01, 13-3413.01 and 13-3423, Arizona Revised Statutes; amending Section 13-4304, Arizona Revised Statutes; amending Title 31, Chapter 3, Article 2 by adding Section 31-411.02, Arizona Revised Statutes; amending Title 36, by adding Chapter 27.1, Sections 36-2601, 36-2602, 36-2603, 36-2604, 36-2605, 36-2606, 36- 2607, 36-2608, 36-2609, 36-2610, 36-2611, 36-2612, 36-2613 and 36- 2614 Arizona Revised Statutes; amending Title 41, Chapter 11, Article 1 by adding Section 41-1604.18, Arizona Revised Statutes; Relating To Drugs.

Contents

Section 1. Title
Section 2. Findings and Declarations
Section 3. Purpose and Intent.
Section 4. Minimum Mandatory Drug Sentencing Laws, Exceptions Section 5. Probation for Persons Convicted of Personal Possession and Use of Controlled Substances and Personal Possession or Use of Drug Paraphernalia Associated with Possession or Use of a Controlled Substance; Treatment; Prevention; Education
Section 6. Possession of Marijuana, marijuana Plants or Related Marijuana Drug-Paraphernalia for Personal Use; Penalties; Exclusions; Definitions
Section 7. Forfeiture and Disposition of Drugs and Evidence
Section 8. Request for Marijuana; Retention of Seized Marijuana Grown in Arizona; Distribution for Medical Purposes; Notice; Limitation of Liability
Section 9. Sentence Enhancement and Probation or Other Release Noneligibility; Violent Crime; Under The Influence of A Controlled Substance
Section 10. Property Subject to Forfeiture, Exemptions
Section 11. Parole or Community Supervision for Persons Previously Convicted of Personal Possession or Use of A Controlled Substance Section 12.§ 36-2601 Definitions
§ 36-2602 Medical Use of Marijuana by Persons Possessing Valid Registry Identification Cards; Limits on Amount Possessed, Delivered or produced; Affirmative Defense
§ 36-2603 Registry Identification Card; Cardholder Immunity; Issuance; Eligibility; Duties of Cardholder
§ 36-2604 Designated Primary Caregiver
§ 36-2605 Limitations on Cardholder’s Immunity from Criminal Laws Involving Marijuana
§ 36-2606 Affirmative Defense to Certain Criminal Laws Involving Marijuana Available to Cardholder
§ 36-2607 Effect of Possession of Registry Identification Card or Designated Primary Caregiver Card on Search And Seizure Rights
§ 36-2608 Attending Physician; Limitation on Civil Liability and Professional Discipline
§ 36-2609 Limits on Professional Licensing Board’s Authority to Sanction Licensee for Medical Use of Marijuana
§ 36-26010 Information and List of Persons Issued Registry Identification Cards and Designated Primary Caregivers; Disclosure
§ 36-26011 Adding Diseases or Conditions that Qualify as Debilitating Medical Conditions
§ 36-26012 Rulemaking; Exemption
§ 36-26013 Limitations on Reimbursement of Costs and Employer Accommodation
§ 36-26014 Limitation on Protection from Criminal Liability
Section 13. Parole or Community Supervision Eligibility for Persons Previously Convicted of Possession or Use of A Controlled Substance Section 14. Severability

Text of the Amendment

Be it enacted by the People of the State of Arizona:

Section 1. Title.

This Act shall be known and may be cited as the "Drug Medicalization, Prevention, and Control Act of 2002."

Section 2. Findings and Declarations.

The people of the State of Arizona find and declare the following:

A. The Drug Medicalization, Prevention, and Control Act of 1996 approved by 65.4% of the voters is saving the state money and making our neighborhoods safer by diverting non-violent drug users into treatment rather than incarcerating them. The 1996 Act was overwhelmingly re-approved in 1998 after the Legislature attempted to thwart the will of the people.

B. According to a Report Card prepared by the Arizona Supreme Court, the 1996 Act is "resulting in safer communities and more substance abusing probationers in recovery." The most recent annual Report Card showed:

C. The Drug Medicalization, Prevention, and Control Act of 2002 will expand the benefits of the 1996 Act by increasing the funding for drug treatment and expanding sentencing reforms for non-violent drug users. This will result in greater cost-savings to the state, safer communities, and more prison space for violent offenders.

D. The Drug Medicalization, Prevention, and Control Act of 2002 will also correct any further circumvention or misunderstanding of the 1996 Act by the courts, county attorneys, and federal government by clarifying the medical marijuana and sentencing reform provisions of the 1996 Act.

E. The Drug Medicalization, Prevention, and Control Act of 2002 acknowledges that there is a legitimate medical use for marijuana. The legitimate use of medical marijuana has been affirmed twice by Arizona voters and has been affirmed by medical and scientific research. The People of Arizona want to preserve the autonomy of Arizona residents and their physicians and allow them to utilize all legitimate medical alternatives to preserve their health, relieve pain, and alleviate suffering.

Section 3. Purpose and Intent.

The people of the State of Arizona declare their purposes to be as follows:

A. Those convicted of drug offenses will pay for drug treatment and prevention themselves. Drug fines should be placed in the Drug Treatment and Education Fund.

B. Tougher punishments will be provided for violent drug felons. The maximum sentence for violent crimes causing serious injury or death committed while under the influence of drugs will be increased by 50%, but mandatory minimum sentences will be removed for non -violent drug offenders.

C. Arizona marijuana laws, which currently provide that someone caught with a small amount of marijuana could be charged with a felony and possible jail time, will be changed. Possession for small amounts of marijuana will be changed to a civil violation with a fine.

D. Those persons charged with drug offenses will not have their property forfeited unless and until they are found guilty of a crime.

E. Sentencing provisions of the 1996 Act requiring mandatory treatment and probation/parole for those convicted of drug possession will be clarified. The courts have not always understood that the 1996 Act clearly stated that first- and second-time offenders should not be incarcerated in jail or prison. In addition, some prosecutors have been trying to circumvent the mandatory treatment provisions of the 1996 Act by invoking paraphernalia laws. The Drug Medicalization, Prevention, and Control Act of 2002 remedies both these situations and will restore the parole provisions repealed by the Legislature in 1997.

F. Medical marijuana patients will no longer be forced to obtain their medicine on the streets. A state distribution system will be established. Only marijuana that can be identified as having been cultivated and produced in Arizona or provided by the federal government will be distributed to patients and the number of patients who will be eligible for medical use will be limited. The medical use of marijuana cultivated and distributed will not have any substantial effect upon interstate commerce. Patients who qualify for medical use will not be able to sell or otherwise distribute the marijuana provided to them by the state. Qualified patients must also be Arizona residents. The measure will not permit distribution of marijuana to patients except by state officials under regulated or controlled conditions that will ensure no commercial transactions and strictly limit the possession and use of marijuana by qualified patients to Arizona. Strict sanctions will be provided for those who violate the terms of the agreement.

Section 4.

Title 13, Chapter 6, Arizona Revised Statutes, is amended by adding § 13-610 to read:

§ 13-610. Minimum mandatory drug sentencing laws; exceptions.

Notwithstanding any law to the contrary and except as provided in Subsection B of this section, there shall be no minimum mandatory sentence or minimum mandatory fine for any conviction of a drug offense listed in Title 13, Chapter 34. The provisions of this section do not apply to § 13-901.01, § 13-3405.01, 13-3409, § 13-3411, § 13-3423 and § 41-1604.15.

Section 5.

Title 13, Chapter 9, Arizona Revised Statutes, is amended to read:

§ 13-901.01. Probation for persons convicted of personal possession and use of controlled substances and personal possession or use of drug paraphernalia associated with possession or use of a controlled substance; treatment; prevention; education.

Notwithstanding any law to the contrary and except as provided in Subsection B of this section, any person who is convicted of the personal possession or use of a controlled substance as defined in § 36-2501 or who is convicted of personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance is eligible for probation. The court shall not impose any sanction that includes incarceration in prison or jail as a condition of probation. The court shall suspend the imposition or execution of sentence and place such person on probation.

B. Any person who has been convicted of or currently stands indicted for a violent crime as defined in § 13-604.04 is not eligible for probation as provided for in this section but instead shall be sentenced pursuant to the other provisions of Chapter 34 of this title.

C. Personal possession or use of a controlled substance or personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance pursuant to this section shall not include possession for sale, production, manufacturing, or transportation for sale of any controlled substance.

D. If a person is convicted of personal possession or use of a controlled substance as defined in § 36 -2501 or personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance, as a condition of probation, the court shall require participation in an appropriate drug treatment or education program administered by a qualified agency or organization that provides such programs to persons who abuse controlled substances. The court shall not impose any sanction that includes incarceration in prison or jail as a condition of probation. Each person who is enrolled in a drug treatment or education program shall be required to pay for participation in the program to the extent of the person's financial ability.

E. A person who has been placed on probation under the provisions of pursuant to this section and who is determined by the court to be in violation of probation shall have new conditions of probation established by the court. The court shall select the additional conditions it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other sanctions short of incarceration in prison or jail.

F. If a person is convicted a second time of personal possession or use of a controlled substance as defined in § 36 -2501 or personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance, the court may include additional conditions of probation it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other action within the jurisdiction of the court. The court shall not impose any sanction that includes incarceration in prison or jail as a condition of probation.

G. A person who has been convicted three times of personal possession or use of a controlled substance as defined in § 36 -2501 or of personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance is not eligible for probation under the provisions of this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title.

H. A court shall not consider a conviction for personal possession or use of a controlled substance or personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance as a prior conviction for purposes of this section if the person has successfully completed the court ordered drug treatment or education program pursuant to Subsection D of this section for that prior conviction.

I. For the purposes of determining whether a person is subject to the provisions of Subsection G of this section, only convictions for personal possession or use of a controlled substance or personal possession or use of drug paraphernalia associated with personal possession or use of a controlled substance that occur after December 6, 1996 shall apply.

J. A person who has been placed on probation pursuant to this section and who is the subject of a petition to revoke probation in which the petition does not contain an allegation that the person has committed a new criminal offense while on probation shall not be arrested or taken into custody or incarcerated in prison or jail before the court has ruled on the petition to revoke probation, but shall be summoned to appear in the appropriate probation violation court.

K. For the purposes of this section, ""drug treatment"" for persons who have a history of opiod use shall include an assessment by a treatment professional who is qualified in the use of narcotic replacement treatment and shall include the use of narcotic replacement therapy that may also include the use of methadone maintenance, where medically appropriate.

L. For the purposes of this section, "controlled substance" has the same meaning prescribed in § 36-2501.

Section 6.

Title 13, Chapter 34, Arizona Revised Statutes, is amended by adding § 13 -3405.01 to read:

§§ 13-3405.01. Possession of marijuana, marijuana plants or related marijuana drug-paraphernalia for personal use; penalties; exclusions; definitions.

A. Notwithstanding any law to the contrary and except as provided in § 13-3411 and in this section:

B. A person convicted of a civil violation under this section shall pay a civil fine of two hundred fifty dollars, provided however that if such person has been previously convicted three or more times of a civil violation pursuant to this section during the two year period immediately preceding the date of commission of the civil violation to be charged, the amount of the civil fine shall be seven hundred fifty dollars.

C. Any judge imposing a fine pursuant to Subsection B of this section shall waive all of the fine if the person who violated the provisions of this section completes a drug education program approved of by the court. Each person who is enrolled in a drug education program pursuant to this section shall be required to pay for participation in the program to the extent of the person's financial ability, except that the cost of the program to the participant shall not exceed the cost of the fine imposed pursuant to Subsection B of this section.

D. Notwithstanding any law to the contrary, a person charged solely with a violation of this section shall not be subject to the provisions of § 13-901.01.

E. Notwithstanding any law to the contrary, all of the money collected pursuant to a civil fine imposed for a violation of this section shall be deposited into the Drug Treatment and Education Fund established in § 13-901.02.

F. Nothing in this section shall be construed to restrict a criminal prosecution for possession, production, or transportation of marijuana or marijuana plants if the amount of marijuana possessed exceeds two ounces of marijuana or two marijuana plants.

G. Nothing in this section shall be construed to restrict a criminal prosecution for the sale of any amount of marijuana.

H. In this section, unless the context otherwise requires:

Section 7.

Title 13, Chapter 34, Arizona Revised Statutes, is amended to read:

§ 13-3413. Forfeiture and disposition of drugs and evidence

A. The following items used or intended for use in violation of a criminal offense of this chapter are subject to seizure and forfeiture pursuant to Chapter 39 of this title:

B. The following property is subject to seizure and forfeiture pursuant to Chapter 39 of this title:

C. Peyote, dangerous drugs, prescription-only drugs, marijuana, narcotic drugs and plants from which such drugs may be derived which are seized in connection with any violation of this chapter or which come into the possession of a law enforcement agency are summarily forfeited.

D. When seizures of marijuana are made in excess of ten pounds or seizures of any other substance specified in Subsection C of this section are made in excess of one pound in connection with any violation of this chapter the responsible law enforcement agency may retain ten pounds of the marijuana or one pound of the other substance randomly selected from the seized quantity for representation purposes as evidence. If the seized marijuana was grown, cultivated or produced in the state, the law enforcement agency shall retain the seized marijuana for representational purposes as evidence and after such purposes are fulfilled, forward the marijuana to the Arizona Department of Public Safety for distribution consistent with the provisions of § 13-3413.01. The agency may destroy the remainder of any other seized substance, or if the marijuana was not grown, cultivated or produced in the state, the agency may destroy the remainder of the seized marijuana. Before any destruction is carried out, the responsible law enforcement agency shall photograph the material seized with identifying case numbers or other means of identification and prepare a report, identifying the seized material. The responsible law enforcement agency shall notify in writing any person arrested for a violation of this chapter or the attorney for the person at least twenty-four hours in advance that such photography will take place and that such person or the person's attorney may be present at such photographing of the seized material. In addition to the amount of marijuana or other substance retained for representation purposes as evidence, all photographs and records made under this section and properly identified are admissible in any court proceeding for any purpose for which the seized marijuana or substance itself would be admissible. Evidence retained after trial shall be disposed of pursuant to the rules of criminal procedure, Rule 28.

E. If a seizure is made of chemicals used for the manufacture of a narcotic drug or dangerous drug as defined by Section 13-3401 in connection with a violation of this title, the seizing agency may apply to a magistrate or superior court judge in the application for the search warrant or as soon as reasonable after the seizure for an order allowing the proper disposal or destruction of the substances, on a showing to the magistrate or superior court judge by affidavit of both of the following:

F. On a proper showing pursuant to Subsection E of this section, the magistrate or superior court judge shall order the substances to be properly destroyed if the containers are first photographed. In addition the magistrate or superior court judge may order that the chemicals be sampled and the samples preserved, unless the court finds either:

Section 8.

Title 13, Chapter 34, Arizona Revised Statutes, is amended by adding § 13 -3413.01 to read:

§ 13-3413.01. Request for marijuana; retention of seized marijuana grown in Arizona; distribution for medical purposes; notice; limitation of liability.

A. Notwithstanding any law to the contrary, within thirty days of the effective date of this act, the Director of the Department of Public Safety shall send a letter to the National Institute on Drug Abuse and the University of Mississippi requesting that the National Institute on Drug Abuse and the University of Mississippi provide, beginning on February 1, 2003, quarterly shipments of marijuana grown at the University of Mississippi to the Department of Public Safety in such amounts as are necessary to provide marijuana to all persons qualified to use marijuana for medical purposes pursuant to Title 36 Chapter 27.1. The Department of Public Safety shall take appropriate actions to ensure the security of marijuana shipped pursuant to this subsection. Marijuana received by the Department of Public Safety pursuant to this subsection shall be maintained and distributed in accordance with the provisions of this section.

B. Notwithstanding any law to the contrary, marijuana subject to seizure and forfeiture pursuant to Chapter 39 of this title that is grown, cultivated or produced in the state shall not be destroyed and shall be retained by the Arizona Department of Public Safety, except for that amount of marijuana held for representational purposes pursuant to § 13-3413(d). Marijuana retained pursuant to this subsection, received pursuant to Subsection A of this section or forwarded to the Arizona Department of Public Safety pursuant to § 13-3413 shall be maintained in a secure location within public buildings located in at least three counties having the greatest population in the state.

C. The Department of Public Safety shall prohibit the public from entering the secure location of a public building where marijuana is retained pursuant to Subsections A and B of this section, except that a person possessing a valid registry identification card issued pursuant to § 36-2603 shall be permitted in such secure location for the sole purpose of obtaining marijuana pursuant to this section upon the presentation of that person's registry identification card.

D. Upon the presentation of a valid registry identification card issued pursuant to § 36-2603 by the person to whom the card was issued, the Department of Public Safety shall give to that person not more than two ounces of marijuana retained or received pursuant to Subsections A and B of this section. No person obtaining marijuana under this section shall receive or attempt to receive more than two ounces of marijuana within a thirty day period.

E. The Department of Public Safety shall take all reasonable steps necessary to package or otherwise identify marijuana retained or received pursuant to Subsections A and B of this section before such marijuana is given to persons in possession of a valid registry identification as provided in Subsection D of this section.

F. Notwithstanding any law to the contrary, an employee of the Department of Public Safety complying with the requirements of this section shall not be prosecuted for acts consistent with this section and shall not be civilly liable for complying with the requirements of this section.

G. The Department of Public Safety shall make public the location of the public buildings where marijuana retained or received pursuant to Subsections A and B of this section shall be stored.

H. Any person who uses or attempts to use a falsified registry identification card or a registry identification card issued pursuant to § 36-2603 that was issued to someone other than the person receiving or attempting to receive marijuana pursuant to this section is guilty of a Class 4 Felony.

I. It shall be unlawful for any person possessing a valid registry identification card issued pursuant to § 36-2603 to possess, use, sell, deliver or transport marijuana received pursuant to this section outside the borders of this state or to deliver marijuana to any other person who intends to possess, sell, deliver or transport such marijuana outside the borders of this state. In addition to any other penalty provided by law, a person who violates the provisions of this subsection is guilty of a Class 6 Felony.

Section 9.

Title 13, Chapter 34, Arizona Revised Statutes, is amended by adding § 13-3423 to read:

§ 13-3423. Sentence enhancement and probation or other release noneligibility; violent crime; under the influence of a controlled substance.

A. Notwithstanding any law to the contrary, the maximum permissible sentence of a person who is convicted by proof beyond a reasonable doubt of intentionally and knowingly committing a violent crime while the person is under the influence of a controlled substance as defined in § 36-2501 in violation of any of the provisions of Title 13, Chapter 34 shall be increased by fifty per cent. A person whose sentence has been increased pursuant to this section shall not be eligible for probation or release until the entire sentence has been served. Pursuant to § 41- 1604.07, the Director of the Arizona Department of Corrections shall include any such person whose sentence has been increased pursuant to this section in a noneligible earned release credit class and the prisoner is not eligible for placement in an eligible earned release credit class.

B. For the purposes of this section, "violent crime" means any intentional and knowing commitment of a criminal act that results in death or serious physical injury.

C. For the purposes of this section, no person shall be found to be under the influence of a controlled substance except upon proof beyond a reasonable doubt.

Section 10.

Title 13, Chapter 39, Arizona Revised Statutes, is amended to read:

§ 13-4304. Property subject to forfeiture; exemptions.

All property, including all interests in such property, described in a statute providing for its forfeiture is subject to forfeiture. However:

Section 11.

Title 31, Chapter 3, Article 2, Arizona Revised Statutes, is amended by adding § 31-411.02 to read:

§ 31-411.02 Parole or community supervision for persons previously convicted of personal possession or use of a controlled substance.

A. Notwithstanding any law to the contrary, every person who is eligible for parole or community supervision pursuant to the provisions of § 41- 1604.18 shall be released on parole or community supervision within ninety days of the issuance of the list required pursuant to § 41- 1604.18(d), provided however that if the Board of Executive Clemency determines beyond a reasonable doubt that an eligible person would be a danger to the general public, the Board shall not release such an otherwise eligible person on parole or community supervision.

B. The Board of Executive Clemency shall order as a condition of parole or community supervision that each person released on parole or community supervision pursuant to this section be required to participate in an appropriate drug treatment or education program administered by a qualified agency or organization that provides such treatment to persons who abuse controlled substances. Each person who is enrolled in a drug treatment or education program shall be required to pay for participation in the program to the extent of his or her financial ability.

C. Each person released upon parole or community supervision pursuant to this section shall remain on parole or community supervision unless the board revokes parole or community supervision or grants an absolute discharge from parole or community supervision or until such person reaches his or her individual earned release credit date. When such person reaches his or her individual earned release credit date, his or her parole or community supervision shall be terminated and he or she shall no longer be under the authority of the board.

Section 12.

Title 36, Arizona Revised Statutes, is amended by adding Chapter 27.1 to read:

§ 36-2601. Definitions

In this article, unless the context otherwise requires:

1. "Attending physician" means a physician licensed to practice medicine in Arizona as defined in § 32-1800(24) or a doctor of medicine licensed to practice medicine in Arizona as defined in § 32-1401(10) who has primary responsibility for the care and treatment of a person diagnosed with a debilitating medical condition.

2. "Debilitating medical condition" means:

3. "Department" means the Arizona Department of Health Services.

4. "Designated primary caregiver" means a person eighteen years of age or older, who is and remains a resident of Arizona while acting in the capacity of a designated primary caregiver, who has not been convicted of a criminal drug offense pursuant to Title 13, Chapter 34 or been convicted of a felony drug offense in another state or jurisdiction, who has significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition and who is designated as such on that person's application for a registry identification card or in other written notification to the department. "Designated primary caregiver" does not include the person's attending physician.

5. "Director" means the Director of the Department of Health Services.

6. "Held for sale" means held with the specific intent to deliver, sell or distribute such item to another person for consideration.

7. "Marijuana" means all parts of any plant of the Genus Cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.

8. "Medical use of marijuana" means the possession, use, production or administration of not more than two ounces of marijuana or not more than two marijuana plants or marijuana drug paraphernalia as defined in § 13-3405.01(h)(4) that is used to administer marijuana for the exclusive benefit of a person to mitigate the symptoms or effects of his or her debilitating medical condition, provided that none of such marijuana or marijuana drug paraphernalia is held for sale or sold to others.

9. "Public place" means all or any portion of an area, lands, building or other structure that is generally open to the public or to which the public has access and is not used primarily for private residential purposes. Public place does not include the inside of a person's dwelling of (STET) residence.

10."Registry identification card" means a document issued by the department that identifies a person who has been authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any.

11. "Usable marijuana" means the dried leaves and flowers of the plant Cannabis Family Moraceae, and any mixture or preparation thereof, which are appropriate for medical use as allowed in this chapter. "Usable marijuana" does not include the seeds, stalks and roots of the plant.

12. "Written documentation" means a statement signed by the attending physician of a person diagnosed with a debilitating medical condition or copies of the person's relevant medical records.

§ 36-2602. Medical use of marijuana by persons possessing valid registry identification cards; limits on amount possessed, delivered or produced; affirmative defense.

A. Notwithstanding § 13-3405 and § 13-3405.01 and any other law to the contrary, a person who possesses a valid registry identification card issued pursuant to § 36-2603 may possess, use or produce two ounces of marijuana and two marijuana plants and that person's designated primary caregiver may possess or produce two ounces of marijuana and two marijuana plants for the sole purpose of mitigating the symptoms or effects of the person's debilitating medical condition. Except as allowed in Subsection C of this section, a registry identification cardholder and that person's designated primary caregiver shall not collectively possess, deliver or produce marijuana in excess of the amounts provided in this subsection.

B. Notwithstanding any law to the contrary, a person who possesses a valid registry identification card issued pursuant to § 36-2603 may engage in, and the designated primary caregiver of such a person may assist in, the medical use of marijuana for the sole purpose of mitigating the symptoms or effects of that person's debilitating medical condition.

C. If the individuals described in Subsection A of this section possess, deliver or produce marijuana in excess of the amounts allowed in Subsection A of this section, such individuals are not exempted from the criminal laws of the state but may establish an affirmative defense to such charges, by a preponderance of the evidence, that the greater amount is medically necessary to mitigate the symptoms or effects of the person's debilitating medical condition.

§ 36-2603. Registry identification card; cardholder immunity; issuance; eligibility; duties of cardholder.

A. Notwithstanding any law to the contrary and except as provided in 36-2605 and 36-2614, a person engaged in or assisting in the medical use of marijuana is not subject to criminal prosecution or subject to a civil fine for possession, delivery or production of two ounces or less of marijuana, or any other criminal offense in which possession, delivery or production of marijuana is an element if all of the following conditions are met:

B. The department shall establish and maintain a program for the issuance of registry identification cards to Arizona residents who meet the requirements of this section. Except as provided in Subsection C of this section, the department shall issue a registry identification card to any Arizona resident who pays a fee not to exceed fifty dollars established by the department to offset the department's costs in administering the program and who provides all of the following:

C. The department shall issue a registry identification card to a person who is under eighteen years of age if the person submits the materials required under Subsection B of this section, is an Arizona resident at the time the application is submitted, and the custodial parent or legal guardian with responsibility for health care decisions for the person under eighteen years of age signs a written statement that contains all of the following:

D. A person applying for a registry identification card pursuant to this section may submit the information required in this section to a county health department for transmittal to the department. A county health department that receives the information pursuant to this subsection shall transmit the information to the department within five days of receipt of the information. Information received by a county health department pursuant to this subsection shall be confidential and shall not (STET) subject to disclosure, except as required to transmit the information to the department.

E. The department shall verify the information contained in an application submitted pursuant to this section and shall approve or deny an application within thirty days of receipt of the application.

F. The department may deny an application only for the following reasons:

G. Denial of a registry identification card shall be considered a final agency action, subject to judicial review. Only the person whose application has been denied or the parent or legal guardian of a person under eighteen years of age whose application has been denied shall have standing to contest the department's action.

H. Any person whose application has been denied may not reapply for six months from the date of the denial, unless authorized to do so by the department or a court of competent jurisdiction.

I. If the department has verified the information submitted pursuant to Subsections B or C of this section and none of the reasons for denial listed in Subsection F of this section is applicable, the department shall issue a serially numbered registry identification card within five days of verification of the information. The registry identification card shall state all of the following:

J. When a person to whom the department has issued a registry identification card pursuant to this section has specified a designated primary caregiver who meets all of the criteria to be a designated primary caregiver pursuant to this chapter, the department shall issue a registry identification card to the designated primary caregiver. The primary caregiver's registry identification card shall contain all of the following:

K. Person who possesses a registry identification card shall:

L. If a person who possesses a registry identification card does not comply with this section, the card shall be deemed expired. If a registry identification card expires, the identification card of any designated primary caregiver of the cardholder shall also expire.

M. A person who possesses a registry identification card pursuant to this section and who has been diagnosed by the person's attending physician as no longer having a debilitating medical condition shall return the registry identification card to the department within seven calendar days of notification of the diagnosis. Any designated primary caregiver shall return his or her identification card within the same period of time.

N. A person who possesses a registry identification card or acts as a designated primary caregiver pursuant to this section and who is no longer a resident of the state shall return his or her registry identification card to the department within seven calendar days of that person's change in residency.

O. A person who has applied for a registry identification card pursuant to this section but whose application has not yet been approved or denied and who is contacted by any law enforcement officer in connection with his or her use, possession, delivery or production of marijuana for medical use may provide to the law enforcement officer a copy of the written documentation submitted to the department pursuant to Subsections B or C of this section and proof of the date of mailing or other transmission of the documentation to the department. This documentation shall have the same legal effect as a registry identification card until such time as the person receives notification that the application has been approved or denied.

P. Any person who intentionally provides false information to the department for purposes of obtaining a registry identification card pursuant to this section is guilty of a Class 4 Felony.

§ 36-2604. Designated primary caregiver.

A. If a person who possesses a registry identification card issued pursuant to § 36-2603, other than a designated primary caregiver, chooses to have a designated primary caregiver, the person must designate the primary caregiver by including the designated primary caregiver's name and address on any of the following:

B. No person possessing a registry identification card issued pursuant to § 36-2603 shall have more than one designated primary caregiver at any given time.

C. A designated primary caregiver shall not act as a designated primary caregiver for more than two persons who hold a valid registry identification card issued pursuant to § 36-2603.

§ 36-2605. Limitations on cardholder's immunity from criminal laws involving marijuana.

A. Notwithstanding any law to the contrary, no person authorized to possess, use, deliver or produce marijuana for medical use pursuant to this chapter shall be excepted from the criminal laws of this state or shall be deemed to have established an affirmative defense to criminal charges of which possession, usage, delivery or production of marijuana is an element if the person:

B. Notwithstanding any law to the contrary, no person authorized to possess, use, deliver or produce marijuana for medical use pursuant to this chapter shall be excepted from the criminal laws of this state or any other jurisdiction for the possession, usage, delivery, production or transportation of marijuana outside the borders of the state.

C. In addition to any other penalty allowed by law, the department may prohibit a person from obtaining or using a registry identification card for the medical use of marijuana of a person who willfully violates the provisions of this chapter or rules adopted by the department for carrying out the purposes of this chapter.

§ 36-2606. Affirmative defense to certain criminal laws involving marijuana available to cardholder.

A. Except as provided in § 36-2605 and 36-2614, it is an affirmative defense to a criminal charge of possession, usage or production of marijuana, or any other criminal offense in which possession, usage or production of marijuana is an element, that the person charged with the offense is a person who:

B. It is not necessary for a person asserting an affirmative defense pursuant to this section to have received a registry identification card in order to assert the affirmative defense established in this section.

C. No person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is charged with a crime pertaining to such use of marijuana shall be precluded from presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition, provided that the amount of marijuana at issue is no greater than permitted in § 36-2602 and the patient has taken substantial steps to comply with the provisions of this chapter.

§ 36-2607. Effect of possession of registry identification card or designated primary caregiver card on search and seizure rights.

A. Possession of a registry identification card or designated primary caregiver identification card pursuant to § 36-2603 shall not alone constitute probable cause to search the person or property of the cardholder or otherwise subject the person or property of the cardholder to inspection by any governmental agency.

B. No property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers shall be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. Marijuana and marijuana drug paraphernalia used to administer marijuana that were as seized by any law enforcement agency shall be returned immediately upon a determination by the county attorney in whose county the property was seized, or his or her designee, that the person from whom the marijuana or marijuana drug paraphernalia used to administer marijuana was seized is entitled to the protections contained in this chapter. Such a determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or an acquittal.

§ 36-2608. Attending physician; limitation on civil liability and professional discipline.

A. Notwithstanding any law to the contrary, an attending physician shall not be subjected to civil penalty or discipline for either of the following:

§ 36-2609. Limits on professional licensing board's authority to sanction licensee for medical use of marijuana.

Notwithstanding any law to the contrary, no professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based on the licensee's medical use of marijuana in accordance with the provisions of this chapter or actions taken by the licensee that are necessary to carry out the licensee's role as a designated primary caregiver to a person who possesses a lawful registry identification card issued pursuant to § 36-2603.

§ 36-2610. Information and list of persons issued registry identification cards and designated primary caregivers; disclosure.

A. The department shall create and maintain a list of the persons to whom the department has issued registry identification cards pursuant to § 36-2603 and the names of any designated primary caregivers. Notwithstanding any law to the contrary and except as provided in Subsection B of this section, the list and all other information provided to the department pursuant to this chapter shall be confidential and not subject to public disclosure.

B. Names and other identifying information from the list established pursuant to Subsection A of this section may be released to:

§ 36-2611. Adding diseases or conditions that qualify as debilitating medical conditions.

Any person may submit a petition to the department requesting that a particular disease or condition be included among the diseases and conditions that qualify as debilitating medical conditions as defined in § 36-2601, Paragraph 2. The department shall adopt rules establishing the manner in which the department will evaluate petitions submitted under this section. Any rules adopted pursuant to this section shall require the department to approve or deny a petition within 180 days of receipt of the petition by the department. Denial of a petition shall be considered a final agency action subject to judicial review.

§ 36-2612. Rulemaking; exeption.

The department may adopt rules to carry out the purposes and provisions of this chapter. For the purposes of this chapter, the department is exempt from the rulemaking provisions of Title 41, Article 3, Chapter 6, except that the department shall submit the rules for publication and the Secretary of State shall publish the rules in the Arizona Administrative Register. The department shall propose and adopt rules in one or more public meetings, with at least sixty days allowed for interested parties to comment after the rules are proposed.

§ 36-2613. Limitations on reimbursement of costs and employer accommodation.

Nothing in this chapter shall be construed to require either of the following:

§ 36-2614. Limitation on protection from criminal liability.

Nothing in this chapter shall protect a person from a criminal prosecution based on possession, use, production, or delivery of marijuana that is not authorized pursuant to this chapter.

Section 13.

Title 41, Chapter 11, Article 1, Arizona revised statutes, is amended by adding § 41-1604.18 to read:

§ 41-1604.18. Parole or community supervision eligibility for persons previously convicted of possession or use of a controlled substance.

A. Notwithstanding any law to the contrary and except as provided in Subsections B and C of this section, if a person has been convicted of personal possession or use of a controlled substance as defined in § 36-2501 and the person is not concurrently serving another sentence, the person shall be eligible for parole or if the offense for which the person was incarcerated was committed on or after January 1, 1996, the person shall be eligible for community supervision.

B. Any person who previously has been convicted of a violent crime as defined in § 13-604.04 shall not be eligible for parole or community supervision pursuant to the provisions of this section.

C. Personal possession or use of a controlled substance as defined in § 36-2501 shall not include possession for sale, production, manufacture or transportation for sale of any controlled substance.

D. Within forty-five days of the effective date of this act, the director of the State Department of Corrections shall prepare a list that identifies each person who is eligible for parole or community supervision pursuant to this section and shall deliver the list to the Board of Executive Clemency.

Section 14.

Severability.

If any provision of this act, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of the act are severable.