Nevada

On November 7, 2000, 65% of Nevada voters approved Question 9 which amended the States. constitution to recognize the medical use of marijuana. Question 9 took effect on October 1, 2001 and removes state-level criminal penalties on the use, possession and cultivation of marijuana by patients who have “written documentation” from their physician that marijuana may alleviate his or her condition. The law establishes a confidential state-run patient registry that issues identification cards to qualifying patients. This Nevada state patient registry system is run by the Department of Health (the Department). Patients who do not join the registry or possess greater amounts of marijuana than allowed by law may only argue the “affirmative defense of medical necessity” if they are arrested on marijuana charges.

The preamble to Nevada’s medical marijuana law states: “[T]he state of Nevada as a sovereign state has the duty to carry out the will of the people of this state and regulate the health, medical practices and well-being of those people in a manner that respects their personal decisions concerning the relief of suffering through the medical use of marijuana.” A separate provision requires the Nevada School of Medicine to “aggressively” seek federal permission to establish a state-run medical marijuana distribution program.

Application information for the Nevada medical marijuana registry is available by writing or calling:

Jennifer McHolmes, Asst. Director
Nevada Division of Health http://health.nv.gov/MedicalMarijuana.htm
1000 E. Williams Street, Suite 209
Carson City, NV 89701
(775) 687-7594

II. Becoming A Patient

Question 9 has been codified into the Nevada Revised Statutes (NRS). Under NRS 453A.120 “Medical Use of Marijuana” is defined as:

1. The possession, delivery, production or use of marijuana;
2. The possession, delivery or use of paraphernalia used to administer marijuana; or
3. Any combination of the acts described above, as necessary for the exclusive benefit of a person to mitigate the symptoms or effects of his/her chronic or debilitating medical condition.

As stated above, medical marijuana patients who either do not participate in Nevada’s confidential state registry program, or who possess greater amounts of marijuana than allowed by law, may argue a medical necessity defense at trial.

Under NRS 453A.310, a patient may claim an affirmative defense to a criminal charge of possession, delivery or production of marijuana, or any other criminal offense in which possession, delivery or production of marijuana is an element, if that person has been diagnosed with a chronic or debilitating medical condition within the 12-month period preceding his arrest and has been advised by his attending physician that the medical use of marijuana may mitigate the symptoms or effects of that chronic or debilitating medical condition.

Caregivers can also claim an affirmative defense at trial if they are assisting a medical marijuana patient. The preponderance of the evidence standard shown above applies to caregivers as well.

In addition to the affirmative defense described above, a person engaged or assisting in the medical use of marijuana who is charged with a crime pertaining to the medical use of marijuana is not precluded from:

1. Asserting a defense of medical necessity; or
2. Presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition.

A defendant who intends to offer an affirmative defense as described above, must, not less than 5 days before trial or at such other time as the court directs, file and serve upon the prosecuting attorney a written notice of his intent to claim the affirmative defense. The written notice must:

1. State specifically why the defendant believes he is entitled to assert the affirmative defense; and
2. Set forth the factual basis for the affirmative defense.

A defendant who fails to provide notice of his intent to claim an affirmative defense may not assert the affirmative defense at trial unless the court, for good cause shown, orders otherwise.
A. How to become a medical marijuana patient in the state of Nevada

The state of Nevada has a confidential state-run registry system. Under NRS 453A.140, a “Registry identification card” is defined as a document issued by the Department or its designee that identifies:

1. A person who is exempt from state prosecution for engaging in the medical use of marijuana; or
2. The designated primary caregiver, if any, of a such a patient.

The Department is in charge of establishing and maintaining a program for the issuance of registry identification cards to persons who meet the requirements provided in Nevada’s medical marijuana law. Therefore, the Department or its designee will issue a registry identification card to a person who:

1. Is a resident of Nevada;
2. Submits an application on a form prescribed by the Department; and
3. Is accompanied by the following:
1. Valid, written documentation from the person’s attending physician stating that:
1. The person has been diagnosed with a chronic or debilitating medical condition;
2. The medical use of marijuana may mitigate the symptoms or effects of that condition; and
3. The attending physician has explained the possible risks and benefits of the medical use of marijuana;
2. The name, address, telephone number, social security number and date of birth of the person;
3. Proof satisfactory to the Department that the person is a resident of this state;
4. The name, address and telephone number of the person’s attending physician; and
5. If the person elects to designate a primary caregiver at the time of application:
1. The name, address, telephone number and social security number of the designated primary caregiver; and
2. A written, signed statement from his attending physician in which the attending physician approves of the designation of the primary caregiver.

The form prescribed by the Department to be used by a person applying for a registry identification card must be in quintuplicate (5). Upon receipt of an application that is completed and submitted, the Department will:

1. Record on the application the date on which it was received;
2. Retain one copy of the application for the records of the Department; and
3. Distribute the other four copies of the application in the following manner:
1. One copy to the person who submitted the application;
2. One copy to the applicant’s designated primary caregiver, if any;
3. One copy to the Central Repository for Nevada Records of Criminal History; and
4. One copy to the attending physician

The Department will also determine if the attending physician osteopath of the patient is registered to practice in the state of Nevada.

The Central Repository for Nevada Records of Criminal History will then report to the Department its findings as to the criminal history, if any, of an applicant within 15 days after receiving a copy of an application.

The Board of Medical Examiners or the State Board of Osteopathic Medicine, as applicable, will then report to the Department its findings as to the licensure and standing of the applicant’s attending physician within 15 days after receiving a copy of an application.

The Department will then verify the information contained in the submitted application and approve or deny the application within 30 days after receiving it. The Department may then contact an applicant, his attending physician and designated primary caregiver, if any, by telephone to determine that the information provided on or accompanying the application is accurate.

The Department may deny an application only on the following grounds:

1. The applicant failed to provide the required information by:
1. Failing to establish his/her chronic or debilitating medical condition; or
2. Failing to document his/her consultation with an attending physician regarding the medical use of marijuana in connection with that condition;
2. The applicant failed to comply with regulations adopted by the Department;
3. The Department determines that the information provided by the applicant was falsified;
4. The Department determines that the attending physician of the applicant is not licensed to practice medicine or osteopathic medicine in Nevada or is not in good standing, as reported by the Board of Medical Examiners or the State Board of Osteopathic Medicine, as applicable;
5. The Department determines that the applicant, or his designated primary caregiver, if applicable, has been convicted of knowingly or intentionally selling a controlled substance;
6. The Department has prohibited the applicant from obtaining or using a registry identification card; or
7. In the case of a person under 18 years of age, the custodial parent or legal guardian with responsibility for health care decisions for the person has not signed the written statement.

The decision of the Department to deny an application for a registry identification card is a final decision for the purposes of judicial review. Only the person whose application has been denied or, in the case of a person under 18 years of age whose application has been denied, the person’s parent or legal guardian, has standing to contest the determination of the Department. A judicial review authorized pursuant to this subsection must be limited to a determination of whether the denial was arbitrary, capricious or otherwise characterized by an abuse of discretion and must be conducted in accordance with the procedures set forth in chapter 233B of NRS for reviewing a final decision of an agency.

A person whose application has been denied may not reapply for 6 months after the date of the denial, unless the Department or a court of competent jurisdiction authorizes reapplication in a shorter time.

If a person has applied for a registry identification card pursuant to this section and the Department has not yet approved or denied the application, the person, and his designated primary caregiver, if any, shall be deemed to hold a registry identification card upon the presentation to a law enforcement officer of the copy of the application provided to him. A person may not be deemed to hold a registry identification card for a period of more than 30 days after the date on which the Department received the application.
B. Registration Fee

In order to become a registered medical marijuana patient in the state of Nevada, the patient must pay a $50 application fee, in addition to a $150 registration fee. The total cost paid to the state is $200. It is unclear whether or not this fee is non-refundable.
C. Eligible medical conditions: “Chronic or Debilitating Medical Condition”

Under NRS 453A.050, a “Chronic or debilitating medical condition” is defined as:

1. Acquired immune deficiency syndrome (AIDS);
2. Cancer;
3. Glaucoma;
4. A medical condition or treatment for a medical condition that produces, for a specific patient, one or more of the following:
1. Cachexia;
2. Persistent muscle spasms, including spasms caused by multiple sclerosis;
3. Seizures, including seizures caused by epilepsy;
4. Severe nausea; or
5. Severe pain; or
5. Any other medical condition or treatment for a medical condition that is:
1. Classified as a chronic or debilitating medical condition by regulation of the Health Division of the Department of Human Resources; or
2. Approved as a chronic or debilitating medical condition pursuant to a petition submitted in accordance with NRS 453A.710.

Additionally, under NRS 453A.710, a person may submit to a petition requesting that a particular disease or condition be included among the diseases and conditions that qualify as chronic or debilitating medical conditions pursuant to NRS 453A.050. The Health Division of the Department of Human Resources (the Division) must then:

1. Approve or deny a petition within 180 days after the Division receives the petition;
2. If the Division approves a petition, the Division, as soon as practicable thereafter, transmit to the Department information concerning the disease or condition that the Division has approved; and
3. The decision of the Division to deny a petition is a final decision for the purposes of judicial review

D. Written Certification Must be Provided to Prove Eligibility

Under NRS 453A.170, “Written Documentation” is defined as:

1. A statement signed by the attending physician of a person diagnosed with a chronic or debilitating medical condition; or
2. Copies of the relevant medical records of a person diagnosed with a chronic or debilitating medical condition

E. Finding a Doctor

The state of Nevada has no provisions to assist people in finding a doctor who will recommend the medical use of marijuana. However, another resource for a medical marijuana referral can be found at: http://www.medicalmarijuanareferrals.com/.

Under NRS 453A.030 “Attending Physician” is defined as a physician who:

1. Is licensed to practice:
1. Medicine pursuant to the provisions of chapter 630 of NRS; or
2. Osteopathic medicine pursuant to the provisions of chapter 633 of NRS; and
2. Has responsibility for the care and treatment of a person diagnosed with a chronic or debilitating medical condition.

The Nevada state Board of Medical Examiners and State Board of Osteopathic Medicine is prohibited from taking disciplinary action against an attending physician on the basis of the physician’s participation in medical marijuana recommendations.
F. Renewal Applications

In order for a patient to renew their registration, they must again pay the $150 registration fee and notify the Department of any change in name, address, telephone number, attending physician or designated primary caregiver, if any; and:

1. Submit annually to the Department:
1. Updated written documentation from the patient’s attending physician in which the attending physician sets forth that:
1. The person continues to suffer from a chronic or debilitating medical condition;
2. The medical use of marijuana may mitigate the symptoms or effects of that condition; and
3. Has explained to the person the possible risks and benefits of the medical use of marijuana; and
2. If the patient elects to designate a primary caregiver for the subsequent year and the primary caregiver so designated was not the person’s designated primary caregiver during the previous year, the patient must provide in the renewal application:
1. The name, address, telephone number and social security number of the designated primary caregiver; and
2. A written, signed statement from the patient’s attending physician in which the attending physician approves of the designation of the primary caregiver.

If a person fails to comply with the above requirements, the registry identification card issued shall be deemed expired. Upon the deemed expiration of a registry identification card:

1. The Department shall send, by certified mail, return receipt requested, notice to the person whose registry identification card has been deemed expired, advising the person of the applicable requirements; and
2. The person shall return their registry identification card to the Department within 7 days after receiving the notice.

Additionally, Under NRS 453A.240, Registry Identification Cards must be returned to the Department following a diagnosis of the absence of a chronic or debilitating medical condition. If a medical marijuana patient is deemed by his attending physician as no longer having a chronic or debilitating medical condition, the person and their designated primary caregiver, if any, shall return their registry identification cards to the Department within 7 days after notification of the diagnosis.
G. Age Limits

The Department or its designee shall issue a registry identification card to a person who is under 18 years of age if:

1. (a) The person submits the materials described above; and
2. (b) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age signs a written statement setting forth that:
1. The attending physician of the person under 18 years of age has explained to that person and to the custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age the possible risks and benefits of the medical use of marijuana;
2. The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age consents to the use of marijuana by the person under 18 years of age for medical purposes;
3. The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age agrees to serve as the designated primary caregiver for the person under 18 years of age; and
4. The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age agrees to control the acquisition of marijuana and the dosage and frequency of use by the person under 18 years of age.

H. Personal Records

Americans for Safe Access strongly urges all patients to keep copies of all paperwork they have related to their status as a medical marijuana patient as proof of legal status. This is meant to protect patients from possible future encounters with law enforcement agents.
III. Limitations and Protections under Initiative

Under NRS 453A.160 “Usable Marijuana” is defined as:

1. The dried leaves and flowers of a plant of the genus Cannabis, and any mixture or preparation thereof, that are appropriate for the medical use of marijuana; and
2. The seeds of a plant of the genus Cannabis.

The term does not include the stalks and roots of the plant.
A. Possession and Growing Limitations

Nevada’s medical marijuana patients are permitted to aggregately possess, deliver or produce no more than:

1. One ounce of usable marijuana;
2. Three mature marijuana plants; and
3. Four immature marijuana plants.

If a medical marijuana patient (or caregiver) possesses, delivers or produces marijuana in an amount which exceeds the amount described above, that patient is not exempt from state prosecution for possession, delivery or production of marijuana.

However, under NRS 453A.310, a patient who uses, possesses, delivers, or produces amounts of marijuana that are in excess of amounts allowed by law must prove by a preponderance of the evidence that the greater amount of marijuana is medically necessary as determined by the person’s attending physician to mitigate the symptoms or effects of the person’s chronic or debilitating medical condition.
B. Consumption of Medical Marijuana

Under NRS 453A.300, a cardholder is prohibited from consuming medical marijuana in the following circumstances:

1. While driving, operating or otherwise in actual physical control of a vehicle or a vessel under power or sail;
2. In any public place or in any place open to the public or exposed to public view; or
3. In any local detention facility, county jail, state prison, reformatory or other correctional facility, including, without limitation, any facility for the detention of juvenile offenders.

C. Paraphernalia associated with medical use

Under Nevada’s medical marijuana law, the possession of paraphernalia associated with medical use is protected in the same manner as the medical marijuana itself.
D. Access to Medical Marijuana

Nevada’s medical marijuana law does not provide any legal means of acquiring medical marijuana. Neither a state-run nor patient-based system currently exists for medical marijuana distribution. For further information, Nevada medical marijuana patients should contact:

Nevada Department of Agriculture
P.O. Box 11279
Reno, NV 89510
(775) 688-1180

Medical Marijuana Referrals

http://www.medicalmarijuanareferrals.com/

E. Growing/Dispensing Collectives and Cooperatives

Nevada’s medical marijuana law also does not provide for a legal means of supplying marijuana. Therefore, no license to distribute medical marijuana is currently available. The law does not address the issue of whether or not patients can form collectives or cooperatives. Patients and caregivers should avoid consulting with law enforcement before forming a collective or cooperative. Instead, Americans for Safe access strongly recommends that any patients who are interested in forming a collective or cooperative consult an attorney before doing so.
F. Caregivers

Nevada defines “Designated Primary Caregiver” as a person who:

1. Is 18 years of age or older;
2. Has significant responsibility for managing the well-being of a person diagnosed with a chronic or debilitating medical condition; and
3. Is designated as such in the manner required pursuant to NRS 453A.250.

The term does not include the attending physician of a person diagnosed with a chronic or debilitating medical condition.

A person may have only one designated primary caregiver at any one time.

Under NRS 453A.220, designated primary caregivers are issued a serially numbered registry identification card. The caregiver’s registry identification card must contain the following information:

1. The name, address and photograph of the designated primary caregiver;
2. The date of issuance and date of expiration of the registry identification card;
3. The name and address of the applicant for whom the person is the designated primary caregiver; and
4. Any other information prescribed by regulation of the Department.

A caregiver’s registry identification card is valid for a period of 1 year and may be renewed in accordance with regulations shown above.
G. Housing

Nevada’s medical marijuana law does not specifically addresses the issue of housing rights for medical marijuana patients and caregivers. However, it is consistent with Nevada law that patients shall not be penalized in any manner, or denied any right or privilege, for the medical use of marijuana. Therefore, ASA believes that a patient’s or caregiver’s right to housing cannot be violated under state law.

Unfortunately, patients in federally subsidized housing are still at risk for being penalized due to stringent regulations by the Federal Department of Housing and Urban Development and the fact that medical marijuana is not recognized under federal law.

Nevada’s medical marijuana law states that the accommodation of medical marijuana patients in any local detention facility, county jail, state prison, reformatory or other correctional facility, including any facility for the detention of juvenile offenders, is not required.
H. Employment

Nevada employers are not required to accommodate the medical use of marijuana in the workplace. Therefore, the issue of whether or not marijuana use is permissible at a place of employment is up to the discretion of the employer.

The additional issue of whether or not medical marijuana use outside of the place of employment is protected is not discussed. This includes any determination of issues involving drug testing and whether or not a qualified medical marijuana patient is protected from the consequences of a positive test for marijuana.

It is the position of Americans for Safe Access that this law protects patients from penalty, including loss of employment wages, for any conduct deemed lawful by the Nevada state medical marijuana law with the exception of on-the-job consumption.
I. Reciprocity

Nevada Residents: Nevada currently has no reciprocity agreements with other states to honor Nevada’s medical marijuana law. This includes even those states that currently have medical marijuana laws of their own.

However, in Montana, medical marijuana patients from other states who are valid medical marijuana patients under that state’s law are protected under Section 4(8) of the Montana Medical Marijuana Act [Sec. 50-46-201(8), MCA]. A registry identification card or its equivalent issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient’s medical use of marijuana has the same force and effect as a registry identification card issued by the Department of Public Health and Human Services in Montana. Therefore, medical marijuana patients from Nevada should be protected in Montana under Montana state law. See the Montana Patients Guide for details on the protections and limitations that Montana state law affords medical marijuana patients.

Additionally, in Rhode Island, The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act (MMA) protects patients and primary caregivers from outside Rhode Island who have a state issued medical marijuana ID card, or its equivalent. The MMA states, “A registry identification card, or its equivalent, issued under the laws of another state, U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying patient, or to permit a person to assist with a qualifying patient’s medical use of marijuana, shall have the same force and effect as a registry identification card issued by the department.” Therefore, medical marijuana patients from the other medical marijuana states that have state issued cards should be protected in the state of Rhode Island. See the Rhode Island Patients Guide for more information.

In states with no medical marijuana program, marijuana use, regardless of a doctor’s recommendation, is illegal. You may be arrested and charged with civil or criminal offenses in those states.
J. Law Enforcement
1. Protections afforded to patients:
Under NRS 453A.200, the holder of valid registry identification card is exempt from state prosecution for certain acts involving marijuana and drug paraphernalia. A patient or caregiver who holds a valid registry identification card is exempt from state prosecution for:

1. Possession, delivery or production of marijuana;
2. Possession or delivery of drug paraphernalia;
3. Aiding and abetting another in the possession, delivery or production of marijuana;
4. Aiding and abetting another in the possession or delivery of drug paraphernalia;
5. Any combination of the acts described above, inclusively; and
6. Any other criminal offense in which the possession, delivery or production of marijuana or the possession or delivery of drug paraphernalia is an element.

In addition to the protections shown above, no person may be subject to state prosecution for constructive possession, conspiracy or any other criminal offense solely for being in the presence or vicinity of the medical use of marijuana in accordance with Nevada’s medical marijuana law.

NRS 453A.400 provides that the possession of a registry identification card is not permissible grounds for search or inspection by a state or local law enforcement agent. The fact that a person possesses a registry identification card issued to him by the Department or its designee pursuant to NRS 453A.220 or 453A.250 does not, alone:

1. Constitute probable cause to search the person or his property; or
2. Subject the person or his property to inspection by any governmental agency.

If officers of a state or local law enforcement agency seize marijuana, drug paraphernalia or other related property from a person engaged or assisting in the medical use of marijuana:

1. The law enforcement agency shall ensure that the marijuana, drug paraphernalia or other related property is not destroyed while in the possession of the law enforcement agency;
2. Any property interest of the person from whom the marijuana, drug paraphernalia or other related property was seized must not be forfeited pursuant to any provision of law providing for the forfeiture of property, except as part of a sentence imposed after conviction of a criminal offense;
3. Upon a determination by the district attorney of the county in which the marijuana, drug paraphernalia or other related property was seized, or his designee, that the person from whom the marijuana, drug paraphernalia or other related property was seized is engaging in or assisting in the medical use of marijuana in accordance with the provisions of the law, the law enforcement agency shall immediately return to that person any usable marijuana, marijuana plants, drug paraphernalia or other related property that was seized.

The provisions shown above do not require a law enforcement agency to care for live marijuana plants.

The determination of a district attorney or his designee that a person has valid medical marijuana status will be legally evidenced by:

1. A decision not to prosecute;
2. The dismissal of charges; or
3. Acquittal

Nevada residents are also not subject to punitive action by any state licensing board arising from their medical marijuana patient/caregiver status. Under NRS 453A.510, Nevada state professional licensing boards are prohibited from taking disciplinary action against a licensee on basis of licensee’s status as a medical marijuana patient or caregiver.
2. Punitive Liability for Patients:
The holder of valid registry identification card may be subject to criminal liability for:

1. Delivering marijuana to another person who he knows does not lawfully hold a registry identification card issued by the Department;
2. Delivering marijuana for consideration (money or anything else in return for the delivery) to any person, regardless of whether the recipient lawfully holds a registry identification card issued by the Department.

In addition to any other penalty provided by law, if the Department determines that a person has willfully violated a provision of Nevada’s medical marijuana law, the Department may, at its own discretion, prohibit the person from obtaining or using a registry identification card for a period of up to 6 months.

3. State Liability Regarding Medical Marijuana:
Under NRS 453A.810, the state of Nevada is not responsible for any deleterious outcomes for the medical use of marijuana by any person.
K. Confidentiality

Pursuant to NRS 453A.700, it is the duty of the Department and any designee of the Department to maintain the confidentiality of, and to not disclose:

1. The contents of any applications, records or other written documentation that the Department or its designee creates or receives pursuant to the provisions of Nevada’s medical marijuana law; or
2. The name or any other identifying information of:
1. An attending physician; or
2. A person who has applied for or to whom the Department or its designee has issued a registry identification card

All information gathered and retained by the state of Nevada in relation to it’s medical marijuana program are confidential and not subject to subpoena, discovery, or inspection by the general public.

The Department may only release the name and the other identifying information (shown above) of a registered medical marijuana patient to:

1. Authorized employees of the Department or its designee as necessary to perform official duties of the Department; and
2. Authorized employees of state and local law enforcement agencies, only as necessary to verify that a person is the lawful holder of a registry identification card issued to him pursuant to NRS 453A.220 or 453A.250.

L. Insurance

Nevada does not require an insurer, organization for managed care, or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana.
Source : www.safeaccessnow.org

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