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District of Columbia Medical Cannabis Laws & Regulations
The voters of Washington, D.C. first approved medical cannabis in 1998 with the passage of Initiative 59 (I-59), which received 69% of the vote and earned majority support in every voting precinct in the District. However, the law was blocked by Congressional action, because unlike States, Congress has constitutional authority over the laws of the District of Columbia. Congress blocked I-59 from being adopted into law through a budget rider that became known as the Barr Act, after Congressman Bob Barr (R-GA) who authored the prohibition imposed on the District. This legislation was attached by Congress to the District's budget every year until December 2009.
Although the District was free to implement I-59, the District's election laws do not make voter initiatives binding, and therefore D.C. Council is free to amend initiatives before passing them into law. In January 2010, the D.C. Council introduced B18-0622: Legalization of Marijuana for Medical Treatment Initiative of 2010 as a replacement for the text in I-59. When I-59 was passed in 1998, California was the only state in the U.S. that had previously passed a medical law cannabis law that had gone into effect. The purpose of replacing I-59 with B18-0622 was to reflect the decade-plus of medical cannabis laws, which by 2010 had grown to 13 states from Hawaii to Maine.
The final version of B18-0622 is substantially different than I-59, the medical cannabis initiative approved by District voters in 1998 that was blocked by Congress from being implemented. The final version of B18-0622 is much more specific and attempts to create a "closed system" of medical cannabis in which the medicine is tracked from cultivation to sales with the intent of preventing abuse of the system. Perhaps the most notable difference between I-59 and B18-0622 is that the initiative allowed patients and caregivers to cultivate their own medicine, while the law passed by the D.C. Council currently only permits cultivation by registered cultivation centers to supply medical cannabis dispensaries, and those centers are restricted to growing no more than 95 plants. One notable feature of I-59 that remained in B18-0622 is that low income patients are entitled to purchase medicine at a reduced rate (aka "sliding scale").
To become registered, a patient must receive a recommendation from physician who is licensed to practice medicine in the District. Patients and caregivers in D.C. must register to a specific dispensary and may only purchase medical cannabis products (include paraphernalia) from that dispensary. Those who wish to switch dispensary membership may do so with 14 days notice by submitting paperwork and a fee to the D.C. Department of Health (DOH). Patients whose income is less than 200% of the federal poverty level are eligible for reduced fees and medicine prices.
In addition to B18-0622, the District's medical cannabis program is also governed by title 22, subtitle C of the District of Columbia Municipal Regulations (DCMR). At 118 pages, these are the longest regulations of any of the jurisdiction that has authorized the use of medical cannabis for patients. The law and rules allow registered patients and caregivers to possess up two (2) ounces of dried medical cannabis or its equivalent in other forms (ie. edibles, tinctures, topicals, etc.). Patients and caregivers may obtain no more than two (2) ounces of cannabis in a 30-day period.
In 2014, two major statutory changes were made to the program in the Medical Marijuana Expansion Emergency Act of 2014. First, the restrictions on what conditions physicians may recommend medical marijuana for were lifted. Now physicians are able to recommend medical marijuana for any condition that they feel a patient can receive medical benefit and the potential benefits outweigh the potential risks. The second change was an increase in the cultivation center plant limit from 95 to 500 live marijuana plants (regardless of stage of maturity).
Also in 2014, the District voters overwhelmingly approved Initiative 71. District agencies are no longer allowed to deny a person a benefit, program, or service based on conduct allowed by I-71. District agencies and other employers are not required to allow the use or possession of marijuana in a workplace. In addition, employers may continue to enforce policies restricting marijuana use by their employees, and property owners may prohibit or regulate marijuana-related activities on their properties. Initiative 71 made no provision for non-medical sales and does not apply on federal property, including the national Mall and Interstate 295. For those under 21, it left in place the decriminalization law, which imposes a $25 civil fine.
Initiative 71 allows possession, purchase, and transportation of up to two ounces of marijuana for personal use by adults 21 and older. In addition, personal cultivation of up to six marijuana plants, with no more than three being mature, by adults 21 and older in their personal residences. Adults may possess all of the cannabis grown by those plants at the same location. Initiative 71 also allowed transfer of up to one ounce of marijuana by adults 21 or older to another adult 21 or older. All transfers are to be free from remuneration; sales are still prohibited. Use or sales of paraphernalia for marijuana use, cultivation, or processing is also now legal.
Despite being approved by nearly 65% of D.C. voters, Congress acted in December of 2014 to stop Initiative 71 by limiting the district from using funds to enact the new law. They passed an omnibus spending bill with language barring D.C. from using any funds to “enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act”. This bound the hands of D.C.’s mayor and city council and prevented them from complying with the will of their constituents. Congressional Republicans even threatened D.C. Mayor Muriel Bowser with jail time for misappropriating funds if she allowed Initiative 71 to move forward.
In 2015, the plant count was increased to 1,000 plants through emergency legislation. As of October 2015, legislation was pending in the Council to make the plant count increase permanent, add lab testing of medicine, and allow reciprocity for non-District resident patients.
However, recent news out of D.C. provides the means for legal cannabis in our nation’s capital to move forward. Late in March 2016, the D.C. Superior Court upheld the Local Budget Autonomy Act of 2012, giving D.C. greater control over its budgets and administration. It also opens the door for expanded recreational cannabis when a current ban expires in the end of September 2016.
In November 2016, the D.C. Council passed a bill, B21-210 that requires DOH to license independent laboratories for product testing, removed drug conviction restrictions on individuals allowed to work in dispensaries and cultivation centers and requires the DOH to create a District-wide tracking system that will then allow patients to visit any dispensary and will allow reciprocity to patients registered in other states. There are currently 5 dispensaries serving patients in DC.
Final Regulations 22C DCMR (amended May 23, 2014)
Emergency and Proposed Rulemaking – Chapter 53 of Title 22-C DCMR ("use it or lose it" rules for business license holders)
Ramirez v. U.S. (2012): D.C. Court of Appeal constructive possession requires more than mere presence of the accused on the premises, or simply his proximity to the drugs; there must be something more in the totality of the circumstances that establishes that the accused meant to exercise dominion or control over the narcotics.
Washington v. U.S. (2015): D.C. Court of Appeal ruled that under general savings statutes, Marijuana Decriminalization Amendment, which amended statute criminalizing possession of marijuana weighing one ounce or less to make such act a civil violation subject only to fine, and decriminalized possession of paraphernalia associated with such possession, did not apply retroactively to defendant who committed and was sentenced for such offenses after effective date of amendment; language of amendment did not expressly provide for retroactive application, legislative history did not explicitly mention pending prosecutions, and judiciary committee considered previously convictions for possession of marijuana when discussing sealing of criminal records, deciding to deal with issue in separate bill, supporting inference that it did not intend for act to apply retroactively.