NEW MEXICO MEDICINAL POT LAW MIGHT FACE CHALLENGE

The New Mexico Attorney General's Office is raising a red flag over a
provision added to the medicinal marijuana bill making its way
through the Legislature.

Assistant Attorney General Michael Cox warned in an analysis of the
bill that a change designed to make the measure comply with federal
law might actually make it unconstitutional.

The Senate Public Affairs Committee revamped the measure, Senate Bill
8, to allow the state to cultivate and distribute marijuana to
patients suffering from specific debilitating illnesses.

The committee also added language that says the state law should
comply with federal law. Similar language was used for a medicinal
marijuana bill passed by the Senate in 2001.

Last year's bill never made it out of the Legislature. Later that
year the U.S. Supreme Court issued a ruling that barred a cooperative
in Oakland, Calif., from cultivating and distributing marijuana to
sick patients.

Cox, in his analysis of the substitute for SB 8, said New Mexico may
be headed for trouble if it ties the state law to the federal
Controlled Substance Act - which the Supreme Court said does not make
an exception for the medical use of marijuana.

The Supreme Court case "suggests that any medical use of cannabis
would be illegal under federal law and therefore the entire Act
(Senate Bill 8) may be invalid on its terms unless the federal law
changes," wrote Cox, the director of criminal prosecutions for the
AG's Office.

The analysis does not represent a formal attorney general's opinion.

One legislator has requested a formal opinion, but a spokeswoman for
Attorney General Patricia Madrid said the office would offer only the
bill analysis during the legislative session.

Cox suggested that the bill could be changed in one of two ways.

He wrote that New Mexico could follow the lead of Montana or the
District of Columbia, which have similar laws that would only go into
effect if the federal government changes marijuana from a Schedule I
drug to a Schedule II or lower-class drug. That change would allow
physicians to prescribe marijuana.

Cox also suggested that if the bill is changed to remove the
provision dealing with federal law, the state might be able to defend
the law against another possible constitutional challenge.

He said if the state grows and distributes marijuana, or allows
individuals to do so for medical use only within New Mexico, it could
argue that that is intrastate commerce.

"It could be argued that the Congress does not have the authority
under the Commerce Clause to make that conduct illegal," Cox wrote.