House committees weigh medical marijuana defense

Delegates support idea, but would tweak Senate legislation

April 01, 2011|By Julie Bykowicz, The Baltimore Sun

Delegates expressed support Friday for decriminalizing marijuana for medical patients, but said they would rewrite the legislation passed by the Senate.

In a combined hearing of the House Government Operations and Judiciary committees, delegates pressed the Senate bill's sponsors — Republican Sen. David Brinkley and Democratic Sen. Jamie Raskin, both cancer survivors — on the practical implications of their proposal.

The Senate voted 41-6 last month to make medical necessity a valid defense for possession of marijuana.

Delegates who work as lawyers said they want to reduce the burden of proof required to show medical necessity from "clear and convincing evidence" to a "preponderance of the evidence."

Such a change would align medical necessity with other forms of affirmative defense — in which the defendant admits to the facts of a charge but claims a justification, such as self-defense.

The Senate legislation would allow a defendant claiming medical necessity to present a note from a doctor, the live testimony of a doctor or medical records as evidence.

Delegates said they want to strip the Senate bill of details about what kinds of evidence could be presented in court. They argued that the general rules of evidence should be applied and that lawmakers should not be laying out a special list of evidence.

"We don't normally enumerate types of evidence," said. Del. Luiz R.S. Simmons, a Montgomery County Democrat.

He and other delegates also described the definition of medical necessity as "pretty loose," though Raskin said he has drafted an amendment that would explain it as an illness involving chronic or debilitating pain.

Delegates also said they want prosecutors to be given two weeks' notice when a person plans to use medical necessity as a defense to marijuana possession charges. Some said lawmakers should consider limiting the amount of the drug that can be claimed as use for medical reasons.

Brinkley and Raskin said they were amenable to the suggestions.

Both chambers have agreed to a comprehensive study of how to implement a medical marijuana system but they have just over a week to work out differences on the affirmative defense concept before the 2011 legislative session ends. Medical marijuana is legal in 15 states and the District of Columbia.

julie.bykowicz@baltsun.com

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