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Lawyer Up: What's the Difference Between State-Issued Medical Marijuana Cards and a Doctor's Rec?

In this week’s edition of our legal column, we’ll compare and contrast the two, and highlight why state-issued cards may offer more legal protection to patients.

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Disclaimer: This column is written for educational purposes only. It does not provide specific legal advice and does not create an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed attorney in your state.

I’d venture to guess that the average person, and possibly even the average cannabis user, doesn’t know that there is a difference between a doctor’s recommendation to use medical marijuana and a state-issued medical marijuana card. A doctor’s recommendation is a certificate from a doctor recommending the use of medical marijuana to treat a patient’s qualifying illness. Doctor’s recommendations are typically maintained in a privately run database for verification. A state-issued card is an identification card granted by the state allowing medical marijuana patients with qualifying medical illnesses to possess, grow, and transport marijuana within the state. Patients’ card numbers are stored in the state’s database and can be easily verified by law enforcement. Both are equally valid and legal to allow access to medical marijuana, but state-issued cards may offer more legal protection to patients. In this week’s edition of our legal column, we’ll break down the differences between the two and highlight what makes one more preferrable to a number of cannabis users. 

State-Issued Cards

The requirements for obtaining a state-issued card vary state by state. California is a good example because its medical marijuana laws have been in place since 1996 with the passage of Prop 215. SB 420 in 2003 set forth California’s guidelines for its voluntary state ID card system. The program was originally set up with the intention of providing added legal protection and peace of mind for seriously ill patients who wanted authorization to get their medication legally. To obtain a card, a patient must fill out an application and provide:

  1. A copy of the doctor’s recommendation;

  2. Proof of identity (a valid government-issued photo ID card); and

  3. Proof of residency (rental agreement, utility bill, DMV registration)

It’s not necessary to provide copies of medical records with an application, so long as the doctor fills out a “Written Documentation of Patient’s Medical Records” form, where the physician states in writing that the patient has a qualifying serious medical condition and the use of marijuana is appropriate. In California, state-issued cards are state-backed but administered by the county. As a result, both the state and the county charge separate fees to cover their costs — the combined total was limited to $100 ($50 for Medi-Cal patients) under Prop 64. State cards must be renewed annually. One perk of holding a card in California is that patients’ medicinal purchases are exempt from the 7.5% state sales tax.

In California, it’s supposed to take about 35 days to process an application and receive the card after completing the process, but a lack of resources at the county level has led to large delays — as long as 5 months in LA County. This delay may be part of the reason recs are much more popular than cards, with about 8 in 10 patients opting for a rec over a card. In fact, recent legislation put forward by the Governor’s office seeks to end the California Medical Marijuana Identification Card program.

Doctors’ Recommendations

A doctor’s recommendation is relatively simple to obtain these days, especially in California where medical marijuana recommendations are allowed for a wide variety of illnesses and conditions. Most other legalized states are more restrictive. There are many services available now to allow you to make a quick appointment to see or even Skype with a doctor who will write a recommendation for medical marijuana. Prospective patients in any state can look up eligible conditions for medical marijuana recommendation to see if they qualify. The doctor will ask you to describe your condition and symptoms, and will then make the recommendation if appropriate. Doctors in states such as Colorado, Washington, and Illinois now prohibit virtual appointments and require in-person physical exams.

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Doctors charge anywhere between $30 to $100 for a typical in-person or online evaluation, and can usually provide the evaluation on the spot. Some doctors may charge more (around $300) for patients who are new to cannabis, such as kids with autism or seizure disorders who require a more in-depth examination and guidance for parents. Doctors’ “recs" are typically good for six months to a year.

What Are the Differences?

In most cases, state-issued cards offer more legal protection to patients than recs do. In California, a cardholder who encounters law enforcement has certain rights that are not afforded to those who merely hold doctor’s recommendations. If a law enforcement officer detains a card holder, the officer must, by law, call the phone number on the card and verify that ID number. If the card is real and verified, the officer must release the cardholder. The officer is not even allowed to ask the cardholder questions about the marijuana in his or her possession. It’s a potential misdemeanor if the officer doesn’t respect the card because the card is protected by federal HIPAA privacy laws and supported by state law.

It’s possible that a patient who holds only a doctor’s recommendation could be detained longer or even arrested until further verification of the rec could be performed. Most doctors’ recommendations are easily verifiable now via a phone number or website, but California law doesn’t require law enforcement to verify doctor recs like it does state cards. Some consider a state-issued card to be a patient’s sole guaranteed legal protection in California.

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Many patients favor the added protections that state-issued cards can provide. Others worry about their identifying information being stored in state databases and potentially being accessible to the federal government by a subpoena to obtain records. While a rec doesn’t offer automatic protection against an arrest, it may offer some peace of mind of knowing the patient’s personal health information is not in a public database. The federal government has no involvement in state-level medical marijuana programs — whether state-issued cards or doctor’s recommendations. In California, the DEA has never stepped in to break up MMJ card programs, but that doesn’t mean they couldn’t choose to do so at any time.

How Recreational Cannabis Could Change Things

In states where recreational cannabis has been legalized but laws have not yet been implemented, it remains to be seen whether the popularity of recreational weed will diminish the medical market, or prompt states to cease their medical programs. Some medical marijuana doctors have expressed concern that recreational legalization could decrease the size of the medical marijuana market and eat into their business. So far, recreational legalization has not devastated the medical market. One-third of Washington’s cannabis market is medical marijuana, and nearly 30% of Colorado’s market is medical. Still, some doctors are worried about losing large chunks of their business to recreational cannabis. One California doctor estimated that, under Prop 64, he expects to lose 25-50% of his practice.

Still, in the uncertainty of today’s political landscape, medical marijuana programs that generally provide greater legal protections to patients would be appear to be safer than recreational cannabis for the time being. Patients who want to continue to have legal, unrestricted access to their medicine are unlikely to give up their cards and recs, especially when the current administration is considering cracking down on recreational use.

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~ Cannabiz Confidante

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