New Mexico

In 2007, The New Mexico Legislature enacted SB 523, The Lynn and Erin Compassionate Use Act, which made New Mexico the 12th state to legalize marijuana for medical use. Governor Bill Richardson signed the bill into law on April 2, 2007. From July 2, 2007 to September 30, 2007 the New Mexico Department of Health (DOH) issued temporary identification cards for patients. On October 1, 2007, the DOH began issuing permanent registry identification cards (that expire one year from the date of issuance) and to initiate the public hearing process and full promulgation of rules and regulations for New Mexico’s medical marijuana program.

The Lynn and Erin Compassionate Use Act (CUA) includes more regulation than many of the state medical marijuana laws, including a precedent-setting comprehensive safe access plan where the state issues licenses to medical marijuana providers. While patients must have one of seven specific conditions to qualify for the program, if a patient’s physician believes the benefits of medical marijuana use outweigh the risks, the patient or patient’s physician may petition the newly-created practitioner advisory board to add any other medical condition, treatment, or disease that medical marijuana can relieve.

Under New Mexico’s medical marijuana law, patients are permitted to legally use, possess, cultivate and seemingly transport a three-month supply of marijuana for medical purposes. Patients’ caregivers are permitted to legally possess, cultivate and seemingly transport the same. However, only licensed providers are allowed to cultivate and distribute medical marijuana in certain specified locations. Recent DOH temporary regulations state a three-month supply may consist of six (6) ounces of processed medicine along with four (4) mature marijuana plants and three (3) immature seedlings. Permanent regulations will follow after recommendations from the practitioner advisory board.

A patient in New Mexico is required to receive written certification from her/his doctor and a registry identification card from the DOH. After October 1, 2007, a patient who does not possess the state-issued identification card will NOT be entitled to the protections of the CUA.

New Mexico’s medical marijuana law has several provisions that provide unique protections from state forfeiture laws for property of patients and caregivers. Any property seized, including cannabis, must be immediately returned to the patient upon determination by the court and/or prosecutor that they are entitled to the protections of the CUA. Furthermore, the CUA protects friends and family, stating that no person shall be subject to arrest or prosecution of a cannabis-related offense for being in the presence of legal medical cannabis use.

New Mexico’s medical marijuana law further prohibits any physician from being punished, or denied any right or privilege, for recommending marijuana to a patient for medical purposes.

For more information, see the Santa Fe New Mexican’s “User’s Guide to the State’s New Medical-Marijuana Law” or the Medical Cannabis Program Brochure.

Or contact:

Melissa Milam
Coordinator, Medical Cannabis Program
New Mexico Department of Health
(505) 827-2321 phone
(505) 476-3637 fax
melissa.milam@state.nm.us
II. Becoming A Patient
A. How to Become a Medical Marijuana Patient in the State of New Mexico

Under New Mexico’s medical marijuana law, the DOH is required to set up a medical cannabis registry system. The DOH will issue temporary registry ID cards beginning July 1, 2007 until thirty days after the effective date of the rules and regulations established by the DOH for the state’s program. The deadline for determining the rules and regulations is October 1, 2007 and the DOH has now begun to issue permanent ID cards. The DOH registry ID card is mandatory for patients to be protected under the CUA.

To be a qualified patient, you must be a resident of New Mexico who has been diagnosed by a practitioner as having a debilitating medical condition and has received written certification and a registry identification card issued pursuant to the CUA. The practitioner must be a person licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act.
B. Written Certification Must be Provided to Prove Eligibility for the Registry ID Card

Written certification is a statement in a patient’s medical records or a statement signed by a patient’s practitioner that, in the practitioner’s professional opinion, the patient has a debilitating medical condition AND the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient. A written certification will expire after one year from the date of issuance.
C. Registry Identification Card

A qualified patient or a primary caregiver shall be granted the full legal protections of the CUA if the patient or caregiver is in possession of a registry identification card.

If the qualified patient or primary caregiver is not in possession of a registry identification card, the patient or caregiver shall be given an opportunity to produce the registry identification card before any arrest or criminal charges or other penalties are initiated.

The DOH shall issue registry identification cards to a patient and to the primary caregiver for that patient, if any, who submit the following:

1. a written certification;
2. the name, address and date of birth of the patient;
3. the name, address and telephone number of the patient’s practitioner; and
4. the name, address and date of birth of the patient’s primary caregiver, if any.

The DOH shall verify the information contained in the application and shall approve or deny an application within thirty days of receipt. The DOH may deny an application only if the applicant did not provide the information required or if the DOH determines that the information provided is false. A person whose application has been denied shall not reapply for six months from the date of the denial unless otherwise authorized by the DOH.

The DOH shall issue a registry identification card within five days of approving an application, and a card shall expire one year after the date of issuance. A registry identification card shall contain:

1. the name, address and date of birth of the qualified patient and primary caregiver, if any;
2. the date of issuance and expiration date of the registry identification card; and
3. other information that the department may require by rule.

A person who possesses a registry identification card shall notify the DOH of any change in the person’s name, address, qualified patient’s practitioner, qualified patient’s primary caregiver or change in status of the qualified patient’s debilitating medical condition within ten days of the change.

Currently (as of October 18, 2007), there is no registration fee because there is not yet an official registration process with the state of New Mexico. However, since the DOH held a public hearing on October 1 to consider the adoption of two new proposed rules, 7.34.2 NMAC “Advisory Board Responsibilities and Duties” and 7.34.3 NMAC “Registration Identification Cards”, information should be forthcoming.

Patients should be aware of the expiration on their written certifications and registry identification cards in order to renew the documents in a timely fashion.
D. Finding a Doctor

Patients should discuss the possibility of using medical marijuana with their primary care physicians. If this is not an option, a patient may be able to consult with a medical cannabis specialist who is licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act.

A practitioner shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for recommending the medical use of cannabis or providing written certification for the medical use of cannabis pursuant to the Lynn and Erin Compassionate Use Act.

Americans for Safe Access recommends that any patient desiring to receive written certification for the medical use of marijuana be forthright with his/her doctor. There is nothing illegal or immoral with using medical cannabis or discussing medical cannabis use with a doctor.

If a patient is considering discussing medical marijuana use with her/his doctor, that patient should be prepared to tell the doctor specifically what condition or symptoms s/he treats with cannabis. This means that the patient should honestly describe the amount of cannabis that s/he uses, how often, and by what delivery method. The patient should then proceed to ask for written certification for the medical use of marijuana. For more information, see our section on Finding a Doctor.
E. Caregivers

The CUA also protects a qualified patient’s primary caregiver from arrest and prosecution for possession of cannabis for medical use by the qualified patient.

“Primary caregiver” means a resident of New Mexico who is at least eighteen (18) years of age and who has been designated by the patient’s practitioner as being necessary to take responsibility for managing the well-being of a qualified patient with respect to the medical use of cannabis.
F. Eligible Medical Conditions: “Debilitating Medical Condition”

“Debilitating medical condition” means any of the following medical conditions:

1. Cancer
2. Glaucoma
3. Multiple Sclerosis
4. Damage to the nervous tissue of the spinal cord, with objective neurological indication of intractable spasticity
5. Epilepsy
6. HIV + or AIDS
7. Admittance into hospice care
8. Any other medical condition, medical treatment, or disease approved by the DOH in the future

G. Age Limits

If the person is less than 18 years of age, the qualified patient’s practitioner must explain the potential risks and benefits of the medical use of cannabis to the qualified patient and to a parent, guardian or person having legal custody of the qualified patient. The parent/guardian must consent in writing to:

1. allow the qualified patient’s medical use of cannabis;
2. serve as the qualified patient’s primary caregiver; and
3. control the dosage and the frequency of the medical use of cannabis by the qualified patient.

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 & Protections
A. Possession and Growing Limitations

The CUA allows a qualified patient and his/her primary caregiver to possess an adequate supply of medical marijuana.

“Adequate supply” means an amount of cannabis, in any form approved by the DOH, possessed by a qualified patient or collectively possessed by a qualified patient and her/his primary caregiver that is determined by the DOH to be no more than reasonably necessary to ensure the uninterrupted availability of cannabis for a period of three months and that is derived solely from an intrastate source.

Recent DOH temporary regulations state a three-month supply may consist of six (6) ounces of processed medicine along with four (4) mature marijuana plants and three (3) immature seedlings. Permanent regulations will follow after recommendations from the practitioner advisory board.

Only a licensed producer may distribute or dispense medical marijuana in New Mexico.
B. Access to Medical Marijuana

Patients must either cultivate a three-month supply of medicine or acquire their medicine from a state licensed producer. “Licensed producer” means any person or association of persons within New Mexico that the DOH determines to be qualified to produce, possess, distribute and dispense cannabis pursuant to the CUA and that is licensed by the DOH.

A licensed producer shall not be subject to arrest, prosecution or penalty, in any manner, for the production, possession, distribution or dispensing of cannabis pursuant to the Lynn and Erin Compassionate Use Act.

If a licensed producer sells, distributes, dispenses or transfers cannabis to a person not approved by the department pursuant to the CUA or obtains or transports cannabis outside New Mexico in violation of federal law, the licensed producer shall be subject to arrest, prosecution and civil or criminal penalties pursuant to state law.

The DOH will promulgate rules in accordance with the State Rules Act that identify requirements for the licensure of producers and cannabis production facilities and set forth procedures to obtain licenses. The DOH will also develop a distribution system for medical marijuana that provides for both marijuana production facilities housed on secured grounds and operated by licensed producers, and marijuana distribution centers for patients and caregivers at designated locations.
C. Consumption of Medical Marijuana

Qualified patients and their primary caregivers are not protected from criminal prosecution or civil penalty for possession or use of cannabis:

1. in a school bus or public vehicle;
2. on school grounds or property;
3. in the workplace of the qualified patient’s or primary caregiver’s employment; or
4. at a public park, recreation center, youth center or other public place.

It is very important to note that qualified patients in New Mexico are not protected by the CUA when they possess or use medical cannabis in a public place. Patients should limit their consumption to private in-home use.
D. Law Enforcement

A qualified patient shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the medical use of cannabis if the quantity of cannabis does not exceed an adequate supply. A qualified patient’s primary caregiver shall not be subject to arrest, prosecution or penalty in any manner for the possession of cannabis for medical use by the qualified patient if the quantity of cannabis does not exceed an adequate supply. If the qualified patient or primary caregiver is not in possession of a registry identification card, the patient or caregiver shall be given an opportunity to produce the registry identification card before any arrest or criminal charges or other penalties are initiated.

Participation in a medical use of cannabis program by a qualified patient or primary caregiver does not relieve the qualified patient or primary caregiver from:

1. criminal prosecution or civil penalties for activities not authorized in the Lynn and Erin Compassionate Use Act;
2. liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of cannabis;

A person who makes a fraudulent representation to a law enforcement officer about the person’s participation in a medical use of cannabis program to avoid arrest or prosecution for a cannabis-related offense is guilty of a petty misdemeanor and shall be sentenced in accordance with the provisions of NMSA ยง 31-19-1 (1978).

Possession of or application for a registry identification card shall not constitute probable cause or give rise to reasonable suspicion for a governmental agency to search the person or property of the person possessing or applying for the card.

A person shall not be subject to arrest or prosecution for a cannabis-related offense for simply being in the presence of the medical use of cannabis as permitted under the provisions of the CUA.
E. Paraphernalia Associated with Medical Use

Although the law does not specifically address the legality of possession of paraphernalia associated with medical marijuana use, it does protect a qualified patient or primary caregiver from arrest, prosecution or penalty in any manner for either the possession of or the medical use of marijuana. Hence, since ASA interprets medical use to include any means to facilitate that use, patients and caregivers should also be protected from criminal sanctions regarding paraphernalia. Additionally, the CUA supports this interpretation by clearly stating that paraphernalia seized from a qualified patient or primary caregiver in connection with the claimed medical use of cannabis shall be returned immediately upon the determination by a court or prosecutor that the qualified patient or primary caregiver is entitled to the law’s protections.
F. Reciprocity

New Mexico currently has no reciprocity agreements with other states to honor its 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 New Mexico 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.
G. Housing

The CUA does not address housing law directly, so patients’ rights in that area remain unresolved. However, it is important to note that under federal law, HUD has clear regulations prohibiting ANY marijuana use in federally subsidized housing (such as Section 8 housing), so medical marijuana patients in New Mexico HUD housing should avoid possession, cultivation, and even use if at all possible. If a patient has questions about these important issues, Americans for Safe Access recommends speaking to an attorney to learn about her/his rights and protections.
H. Employment

The CUA does not address employment law directly, so patients’ rights in that area remain unresolved. However, the law specifically allows qualified patients or primary caregivers to continue to be criminally prosecuted or civilly penalized for possession or use of cannabis in her or his workplace.
I. Confidentiality

New Mexico’s current confidentiality protocols are as follows:

The DOH shall maintain a confidential file containing the names and addresses of the persons who have either applied for or received a registry identification card. Individual names on the list shall be confidential and not subject to disclosure, except:

1. to authorized employees or agents of the department as necessary to perform the duties of the department pursuant to the provisions of the CUA.
2. to authorized employees of state or local law enforcement agencies, but only for the purpose of verifying that a person is lawfully in possession of a registry identification card; or
3. as provided in the federal Health Insurance Portability and Accountability Act of 1996.

This list notably does not include federal law enforcement so seemingly, the CUA forbids cooperation between the NM DOH and the federal government.
J. Insurance

New Mexico’s medical marijuana law does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.

However, patients receiving state assistance should inquire into discounted registration fees for the registry identification card.
K. Protection of Property

Any property interest that is possessed, owned or used in connection with the medical use of cannabis, or acts incidental to such use, shall not be harmed, neglected, injured or destroyed while in the possession of state or local law enforcement officials.

Any such property interest shall not be forfeited under any state or local law providing for the forfeiture of property except as provided in the Forfeiture Act.

Cannabis, paraphernalia or other property seized from a qualified patient or primary caregiver in connection with the claimed medical use of cannabis shall be returned immediately upon the determination by a court or prosecutor that the qualified patient or primary caregiver is entitled to the protections of the provisions of the Lynn and Erin Compassionate Use Act, as may be evidenced by a failure to actively investigate the case, a decision not to prosecute, the dismissal of charges or acquittal.
L. Future Rules & Regulations

No later than October 1, 2007, the DOH shall set forth rules to implement The Lynn and Erin Compassionate Use Act. The rules shall:

1. govern the manner in which the department will consider applications for registry identification cards and for the renewal of identification cards for qualified patients and primary caregivers;
2. define the amount of cannabis that is necessary to constitute an adequate supply, including amounts for topical treatments;
3. identify criteria and set forth procedures for including additional medical conditions, medical treatments or diseases to the list of debilitating medical conditions that qualify for the medical use of cannabis. Procedures shall include a petition process and shall allow for public comment and public hearings before the advisory board;
4. set forth additional medical conditions, medical treatments or diseases to the list of debilitating medical conditions that qualify for the medical use of cannabis as recommended by the advisory board;
5. identify requirements for the licensure of producers and cannabis production facilities and set forth procedures to obtain licenses;
6. develop a distribution system for medical cannabis that provides for:
1. cannabis production facilities within New Mexico housed on secured grounds and operated by licensed producers; and
2. distribution of medical cannabis to qualified patients or their primary caregivers to take place at locations designated by the department;
7. determine additional duties and responsibilities of the advisory board; and
8. be revised and updated as necessary.

As of October 18, 2007, the DOH had held a public hearing on October 1 to consider the adoption of two new proposed rules, 7.34.2 NMAC “Advisory Board Responsibilities and Duties” and 7.34.3 NMAC “Registration Identification Cards”, and further information should be forthcoming.
Source : www.safeaccessnow.org

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