AG'S OFFICE: MEDICINAL POT LAW MIGHT FACE CHALLENGE

SANTA FE - The 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.

The Supreme Court did not address that circumstance in the Oakland case.
Cox warned that New Mexico could be setting itself up for a challenge if it
structured its law that way.

But if the state leaves the bill as is, "the use or possession of cannabis
would continue to be a crime," Cox wrote.

The head of the U.S. Drug Enforcement Administration has also informed
legislators that he believes the Senate bill conflicts with federal law.

In a letter to Sen. Ramsay Gorham, a North Valley Republican, DEA
Administrator Asa Hutchinson said such a state law would undermine drug
enforcement efforts.

"The bill is conspicuously silent with regard to the fact that the
cultivation, distribution and possession of marijuana . . . would violate
federal law and subject individuals engaged in such conduct to criminal and
civil penalties," Hutchinson wrote.

Katherine Huffman, director of the New Mexico Drug Policy Project, said the
Senate bill is unique because it puts the onus on the state to grow and
distribute marijuana. She agreed that idea has not been tested in court.

After reading Cox's analysis of the bill, Huffman said she agreed that the
state could probably defend the law in court by using the Commerce Clause
argument.

She said she's not sure what to make about Cox's analysis regarding the
language tying the bill to federal law.

"If that clause, in the opinion of the attorney general, causes problems,
that could easily be removed," Huffman said.