On Jan. 1, medical marijuana will become legal in Massachusetts. But the details of the new law are still being hammered out, and if you don't have a doctor's approval for the drug you could still be charged with a crime for possessing more than an ounce of it.
On Thursday, the Massachusetts Chiefs of Police Association put out guidelines for officers on the new law, so WBUR's All Things Considered host Sacha Pfeiffer spoke with the association's general counsel, Jack Collins, to find out, among other things, whether police can now ask for a medical marijuana ID card if they find someone in possession of marijuana.
Jack Collins: Ultimately, a card, yes. The legislation that got passed here in terms of the ballot does call for a card, and I'm sure a few months from now we'll have a secure card — something like you might have for a driver's license, things like that — so we can be sure they're legitimate. But in the meantime the law provides that's while that's happening, basically, you're going to get a note from your doctor, and we'll have to honor those. So we'll get a note from the doctor. We won't, quite frankly, be really sure that that doctor exists. We won't really be sure this was the person the note was given to — a lot of grey areas like that. But in the meantime we'll have to do the best we can.
Sacha Pfeiffer: Let's say a police officer comes across someone in possession of marijuana. Is the police officer going to say, "Do you have a doctor's note?"
Yes. What will happen is — and we're waiting for the courts to tell us exactly how we can phrase this, as silly as it sounds — but our recommendation is we will say to the person, "Show me a doctor's note, if you have one," and if they produce one and the amount of marijuana they have on them is reasonably less than a 60-day supply…
Which is how the much the law allows at any one time?
Right. So we don't know exactly what that means yet. We’re waiting for the Department of Public Health to define that more, but we'll use common sense for the time being. And if the person has what appears to be more than an ounce, and therefore it's potentially criminal, but less than a 60-day supply, then we'll say, "Fine. Go on Have a nice day. Go on your way."
What if they give you a note and it looks like something they just scrawled by themselves on paper that morning? How will you know if it's legitimate?
Until the Department of Public Health comes out with regulations, we won't know if it's legitimate. And depending on how serious the situation is, the officer might very well say, "Let me call that doctor's office and see if, in fact, you are who you say you are and if that doctor really issued this," then that's probably the kind of thing we'll do. But doing a whole lot of detective work for a situation that is relatively minor in nature might very well be something the officer doesn't have time or the ability to do right there.
You've said that, since it did pass, you wish it had been passed by the Legislature rather than as a ballot question. How would that have made things different and, presumably, easier for police?
Because what happens when you pass a law through the Legislature legislative process is you have a hearing process, you have an opportunity to work the legislative committees, it goes through a lot of screening, and you can say, "Well, here's a question. Let's address that," or, "This wording here is not very clear. What about that?" So I think the law obviously still would have passed; there's no question about that. Nobody now is having a sour grapes attitude that, "Boy, you know, we want to slow things down or we're not happy about it." It's just too many grey areas that really nobody can understand.
What about cities and towns that are now passing laws banning medical marijuana dispensaries? I'm wondering if those kinds of restrictions are definitely legal now that medical marijuana is legal?
If you're a town, in order to pass a zoning bylaw you'll have to have that approved by the attorney general's office, and we know that right now they're taking a look internally at whether or not that kind of a banning of a marijuana facility entirely would be legal.
So, ultimately, towns that have banned marijuana dispensaries — those bans may not hold up?
That's correct. Keep in mind that this is not a constitutional issue. You can't ban, for example, adult entertainment because there's constitutional rights, First Amendment. But this is not a constitutional issue. As a matter of fact, it's really a violation of federal law. I would suspect that in larger counties if some cities and towns want to ban it entirely that will probably be okay. In smaller counties — Nantucket, for example, where the town and the county are the same thing-- and the law requires you to have one in every county, that might be more problematic.
What about police officers who might want to use or even grow medical marijuana? Can they?
It's pretty clear to us now, and we're going to make it even clearer next week to all the police in the state, that being a police officer is incompatible with having a medical marijuana certificate for yourself or being a caregiver for somebody else.
Why shouldn't they be able to if it is now the law?
Well, the law is very clear that this does not trump other provisions, and it says in the law that it doesn't trump a violation of federal law, so we can't have police officers violating federal law.
Because federal law still says marijuana possession is illegal?
At this point in time it's still clearly illegal and we can't have police officers committing illegal offenses and still holding their jobs.
Have you heard from any Massachusetts police officers who wish they could have or use medical marijuana?
Of course. And I’m not sure whether it's tongue-in-cheek or they're very serious about it. I think it's a little bit of both. Some people have jokingly talked about, "Well, maybe we'll have to make provisions at the station for people to use it." I know in that case they're obviously joking. But the real answer is we're going to send out notices to all the police officers next week to make sure everybody knows that none of this is going to be allowed.
This program aired on December 20, 2012.