August 6, 2019

State judge says DOH will have to issue medical cannabis cards to out-of-state residents

A state district court judge on Monday ordered the state’s Medical Cannabis Program to start issuing medical cannabis cards to individuals who qualify, regardless of where they live. 

The question of whether non-residents of New Mexico could become medical cannabis patients started when major changes to the state’s medical cannabis law went into effect. One minor word replacement drastically changed who could become a patient, argued Duke Rodriguez, president and CEO of medical cannabis producer Ultra Health. Before July 2019, the law stated that qualified patients must be a resident of New Mexico. Now, the law defines a qualified patient as a “person.” Rodriguez’s company bought both internet and radio ads promoting the change. But the Department of Health, which oversees the Medical Cannabis Program, along with the governor and at least one legislator, argued the intention of the law was never to open the program up to non-residents. 

Now, barring a compelling argument from DOH, the state could be forced to expand eligibility to anyone from across the country. 

The law is clear

In his ruling Monday morning, Santa Fe district Judge Bryan Biedscheid wrote that the law is clear.

“The plain language of the current definition of qualified patient indicates that the qualified patient need not be a New Mexico resident,” Biedscheid wrote. 

Sen. Jerry Ortiz y Pino, D-Albuquerque, who sponsored the omnibus bill that contained the definition change previously told NM Political Report that the change was originally intended to cover reciprocal patients—those who are qualified patients from states with medical cannabis programs—who want to purchase cannabis in New Mexico. The bill had a seperate section for reciprocal patients and DOH has until March 2020 to promulgate rules for that change.   

A spokesman for Gov. Michelle Lujan Grisham’s office previously told NM Political Report that Ortiz y Pino’s was the most logical explanation. 

Biedscheid dispelled the idea that the intention of the word change was for reciprocal patients, saying that if reciprocal patients “were merely a subset of qualified patients, there would be no need to grant them seperate explicit exemptions” as the law currently does. 

Judge Biedscheid also went on to say in his ruling that DOH and the Medical Cannabis Program cannot override statute, regardless of individual interpretations of its wording and that requiring a New Mexico identification card or driver’s license from any potential patient goes against state law. 

“DOH’s requirement of a copy of a New Mexico driver’s license is, in and of itself, a violation of law even as to New Mexico residents,” Biedscheid wrote, adding his own emphasis.

Biedscheid even went as far as to say the intention of the law was to expand medical cannabis access to those who spend much of their time in the state but are not residents, like college students, visiting scientists who do work for national labs and other traveling professionals. 

“The [word] replacement is a clear sign of legislative intent to widen the reach of eligibility for the New Mexico medical cannabis program,” Biedscheid wrote. 

The judge also gave DOH and the Medical Cannabis Program until August 19 to file a response to explain why the department thinks it should not issue cards to out-of-state residents. 

DOH spokesman David Morgan told NM Political Report that the director of the Medical Cannabis Program had not seen the court filing at the time of publication, but that the department plans to respond.  

“The New Mexico Department of Health intends to file its response to the writ within the time frame ordered by Judge Biedscheid,” Morgan said. 

Our neighbors to the east

Besides Rodriguez, who is a resident of Arizona, the other two petitioners are Harold Meyers of Dalhart, Texas—which is about 40 miles east of the New Mexico-Texas border—and Laura Sias of El Paso. According to court records Meyers owns a liquor store and a “check-cashing store” in New Mexico and also runs several ranches in the state. Both Sias’ brother and best friend, according to court documents, live in Las Cruces and she “visits them frequently.” Both Meyers and Sias told the court they plan on using cannabis in New Mexico and will not travel across state lines with it, which is a federal crime. Further, Texas has strict possession laws and a spokesman for the El Paso Police Department told NM Political Report there is no exception for medical cannabis in Texas. 

“The law in Texas is clear, possession of any amount of marijuana is illegal without ambiguity and any violations are enforced accordingly,” a spokesman said in a statement. 

It’s likely a majority of out-of-state patients will come from Texas as other surrounding states like Arizona, Utah and Oklahoma have their own medical cannabis programs and by next year medical patients from those states can become a reciprocal patients. Colorado, Nevada and California have legalized both medical and recreational use cannabis. 

An influx of patients could also greatly impact the cannabis supply in New Mexico. Patients in rural areas, close to the New Mexico-Texas border have long complained about a lack of supply. DOH recently increased the number of plants producers can grow, but without an idea of how many cards might be issued to out-of-state residents, it’s hard to say if producers would be able to keep up with the demand.