LIGHTING UP: RULES VAGUE ON USING MEDICAL MARIJUANA IN PUBLIC

Years ago, as Tom Daubert envisioned a medical marijuana initiative
for Montana, one thing never crossed his mind.

"I guess as I thought about the language from laws in other states, I
always saw medical use of marijuana as something that would happen in
private," said Daubert, one of the leaders of the movement that led
to passage of the state's medical marijuana initiative in 2004. "I
didn't really see that we'd be having a discussion about the public
use of something being used as medication."

And yet, where medical marijuana can be used is just one of many
questions surrounding a law that many think is far too vague.

The law itself does set some guidelines, but they don't go quite as
far as the Helena-based Daubert saw them going.

"I felt like the law set it out pretty well, but I see now that it's
perhaps not as specific as it could be," he said. "This is something
we need to fix. I don't think we expect to see diabetics standing on
the sidewalk taking insulin shots and I don't think we should see
medical cannabis users standing on the sidewalk smoking."

The law certainly pre-empts medical marijuana use in some public areas:

. In a school bus or on school grounds.

. In a correctional facility.

. At any public park, public beach, public recreation center or youth center.

Some of those terms - public recreation center, for instance - are so
vague that no one really knows what's intended by the language.

Public park is a little clearer, though establishing boundaries for
such places creates complexities. Where, for instance, does
Missoula's Caras Park begin and end? Are the banks of the Clark Fork
River or the shores of Flathead Lake "public" beaches?

"There are enough holes in the law to make it difficult to interpret
in some areas," said Missoula Police Chief Mark Muir. "But there are
parts that are plenty clear, and what that means to us, for the most
part, is that if you can smoke tobacco there, you can smoke medical marijuana."

That means you can smoke in your car, although you can't be impaired
if you're driving, Muir said.

State law clearly regulates indoor smoking and the Indoor Clean Air
Act prohibits tobacco smoking inside most buildings. That law covers
medical marijuana as well.

"The fact that it's being used as medicine doesn't create an
exception from the clean air act," said Linda Lee, supervisor of the
Montana Tobacco Use Prevention Program. "The act talks about
combustible product and that includes marijuana. It creates smoke and
that creates at least some level of toxicity."

Despite that apparent clarity, the Missoula City-County Health
Department has fielded questions about the possibility of setting up
an indoor smoking "clinic."

"We had someone ask us about the viability of a medical marijuana
clinic, where people would be able to smoke indoors," said the
department's Greg Oliver. "This person had already hired an attorney
to look into it. We told them no, it's not possible under the indoor
smoking law."

But let's say you were a medical marijuana patient who also had an
interest in Missoula's recent effort to pass an anti-discrimination
ordinance. Could you testify at City Hall, then step outside and
smoke medical marijuana on the sidewalk next to the police station,
then go back to the meeting?

"Absolutely," said Chief Muir. "There are businesses that have rules
about smoking within some number of feet of an entrance, but on the
public sidewalk, you can smoke. I don't have to like it, but that's
the way it is."

But could you walk across town, head for the University of Montana
Oval and relieve your pain by smoking a bowl by the Griz statue?

"Absolutely not," said UM attorney David Aronofsky. "There is no room
whatsoever for discretion on our part, because we are an institution
that receives federal funding."

The university receives federal dollars for a host of reasons, and
that means UM must certify to the government that it is both a
drug-free school and drug-free workplace. And that goes for all
schools in the Montana University System.

"That pretty well eliminates anything other than strict compliance,"
said Aronofsky.

The restriction applies to dorm rooms, which are considered private
residences for purposes of search-and-seizure laws but not for drug laws.

"Basically, it's off limits on any university-owned and operated
premise," Aronofsky said. "We are doing what we can to help faculty
and students find accommodations off campus if this is something that
would help them, but anything on campus is not acceptable due to federal law."

The federal designation also puts the kibosh on smoking medical
marijuana on the state's millions of acres of U.S. government land.

Despite the Obama administration's directive that it's not really
interested in prosecuting users of small amounts of personal
marijuana, it remains against the law to smoke the weed on federal
land, even if it's for medical reasons.

And that means that it's still illegal to fire up a bowl on the
Snowbowl ski lift, a restriction that's never done much to prevent
the practice.

All of which prompted a little lightheartedness from Muir.

"I don't think there are enough restrictions in the law, but I think
if your place has 'bowl' in the name, people ought to be able to
smoke one," the chief said.

Rather than treating medical marijuana like tobacco, Muir and Daubert
would prefer the open-container model that applies to alcohol.

"That essentially confines it to private homes because of the indoor
smoking act," said Muir. "Then we don't have people walking up and
down the sidewalks smoking joints. I understand the medical aspect of
using it, but what people are really talking about in terms of public
use is flaunting it."

Agreed, said Daubert.

"What's happening is that the medical aspect of this is starting to
take a back seat to the activists who are pushing to legalize
marijuana," said Daubert.

Daubert is sympathetic to the move toward legalization, but his
primary interest lies in bringing pain relief to those who suffer. If
the campaign to legalize marijuana threatens its use by those who
need it medically, Daubert won't be happy.

"I feel like what's happening is that the activists are hijacking the
discussion essentially," he said. "I think they're misleading the
public and they are inviting public misunderstanding and jeopardizing
the patient rights of Montanans."

In the interest of clearing up problems caused by loose language in
the law, Daubert has been meeting with an interim health committee at
the Montana Legislature.

"I do think this is something where the law can be fixed, and it
needs a comprehensive effort based on consensus," Daubert said. "The
public use aspect is just a perfect example of something that needs
to be repaired and can easily be repaired. We've got to get the
discussion back on track and back on what it was supposed to be about
in the first place."