 This is St. Tech, Hawaii. Community matters here. Aloha. I'm Marcia Joyner and we are having a special edition of Cannabis Chronicles. And as a part of our 10,000 year odyssey, we are doing something just a little bit different. But we are going to talk about, of course, the cannabis plant or the hemp plant. So tell me, Muse, of that plant of many resources, which wondered far and wide the ancient plant of food, fuel, fiber, and cultivated for millennia. So as we venture through the past 10,000 years, we will explore and discover the plant in which the cannabis derives. There are many uses of the plant, hemp, cannabis, ashes, cannabis and religion, cannabis and medicine, cannabis and uncle Sam, dear uncle Sam, and thus our odyssey begins. Today our odyssey is not long ago and far away. In fact, it is right here and now. And as you may know, our attorney general, the little elf, Jeff Sessions, made good on his previous promise and that is to issue a directive to all U.S. attorneys ordering them to seek more uniform, harsher sentences including nonviolent drug offenses. So we have now an issue with the police department and the cannabis industry where the police department decided to confiscate and not issue licenses for guns and cannabis, which makes no sense to me since the cannabis card is legal. As you can grow cannabis, you can use medical cannabis and the state also licenses and says it's okay to own a gun. So why is it, how is it that we all got this nonsense is going on and I call it nonsense with the guns and cannabis. So our guest today is none other than the illustrious Dr. Clifton Otto, who has been working tirelessly for, I don't know, 20 years maybe to de-schedule cannabis. There's no reason that it should be a schedule one. So I have asked him, because he has been working on this issue for so long, I've asked Dr. Otto to be our guest to talk about this issue of guns and cannabis. So Dr. Otto, thank you. Again, thank you for all you do. Now, he is a real medical doctor, and he takes good care of your eyes should you want. He also takes good care of your cannabis needs, if you so care to do that. And thank you for being our guest today. So tell us, step one, what is the nonsense with the police department and the guns and cannabis? What is that about? Well, thank you, Marcia, and I appreciate you having me back on the show, and especially for this special edition in view of what we're dealing with currently. Just to clarify, I've been doing this for about five years, actually, trying to work at the state legislative level to protect the rights of our patients and improve our medical use of cannabis program. We're kind of moving away a little bit from the rescheduling issue as we start to understand how state rights impacts the Federal Controlled Substances Act and the scheduling of marijuana. But in terms of this issue with the Hotaloo Police Department and firearms possession, you know, it's a very emotional issue for a lot of folks because of our constitutional right to bear arms. That's an essential right that people are very serious and very emotional about. So I think it's important that we take one step back and go through this rather methodically and look at the law and the rules that are governing this issue within our state so that we can better understand why HPD is taking the issues. Okay, then start there, because, like I said, if I have, let's assume that I'm a farmer or a hunter, and I hunt wild boar and I have a gun that I've had for who knows how long, and now I have a chronic ailment and I want to get a cannabis card. Why would they want to confiscate my gun? Well, to understand that, we have to look at the law that Chief Ballard has been quoting in the letter that she's been sending out to patients, or her department, her commander has been sending out to patients. And she is quoting a very specific law that actually references federal law, and it says that if you are an illegal user of a controlled substance under federal law, then you're not allowed to possess firearms. So I believe that's the basis for all of this. And so they're using that law to actually implement federal law as they see it impacting firearms possession in Hawaii, and there are some nuances to that that I think we need to go into a little bit further. Please. So, first of all, we have to look at how HPD is authorized to access this registry database that they've been doing in order to compare firearms applicants with existing patients in the Department of Health database. Now, isn't that doesn't HIPAA prevent that? Well, one could argue that this isn't so much a HIPAA issue because the police are not gaining access to confidential medical information. When they call into this automated 24-hour verification hotline, they can enter in either the patient's registration number, a name, or a date of birth. And my understanding is they only get back one of three answers. It's either registered, not registered, or the third one is not even in their system. So they're not really getting any specific information in terms of what is the medical condition, what medications are out there on any of that kind of stuff. So you could argue that they're not actually violating HIPAA. They're only verifying that the patient is registered with our program. And I think that's where the problem lies because the rules that the Department of Health has adopted regarding this are a little broader than I believe the law intended. Well, okay, so I'm not a part of the HPD. Can anybody—how does the system know that I am authorized to do this? Can anybody do that? No, anybody does not have access. There are designated officers within state and local law enforcement agencies that have been granted that authority. So there has to be one of those designated officers. But what we don't know is why are they verifying registration? That was my next question. If I have a medical cannabis card and I want to register to get a gun, then I show the card at the time, then why do they have to go looking? Well, that's very good questions. So if we look back to a recent change in the firearms application form that HPD produces, they made a change just back in October that adds a second question. And that question specifically asked if you are already authorized by a state medical marijuana program. And so you would think that if a patient answered yes to that, and they don't have to show their registration card at the time of applications for the firearm, but if they checked yes to that, then they're automatically disqualified because you cannot be an illegal user and possess firearms within the state of Hawaii. Okay. Now the question becomes why? If you are a legal marijuana user and you've passed all of the criteria that they set up to get the card and the doctor says, and you go through all of this, then why would they deny you the right to have a gun? Well, the reason is that they are referencing federal law, and they're saying under federal law, so federal law preempts state law is what they will say. Okay. Now, if you are a medical cannabis user, then that assumes that something is wrong. Do they do this? Do they ask you if you have scotch, high balls? Do they ask you if you are doing opiates? Lots of people do crazy things while they're on opiates. Lots of people, nobody has ever, at least the statistics say, no one has ever killed anybody while on medical cannabis, but how many accidents, automobile accidents are with people who have had too much to drink? Sure. So how do we reach that somehow, this is all crazy to me, how do we get here without those other things? Well, then opiates aren't they scheduled to? Yes, a lot of opiates aren't scheduled to, but they are not being used illegally because patients can get a prescription from their doctor that they can fill in a pharmacy. Alcohol is not a controlled substance, although maybe it should be. It should be. So people who are using alcohol are not using it illegally. So it all hinges on this misconception that the medical use of cannabis in Hawaii is violating federal law, and that's really the crux of this issue. Well, okay, now this is going to pain me all the way through to say this, but there is a thing called stage rights, and I can't believe I said that. Anyway, so the Supreme Court ruled that the state, when it comes to medical issues, the state has the right to decide what about their medical procedures. So why is it that they've jumped over that and using federal law? Well, you're absolutely right. Gonzales, or again in 2006, as you know, was ruled in favor of the state and it found that the Department of Justice does not have the authority to declare illegitimate a standard of medical care except it under state law, but we still have this issue of if there is a conflict, then federal law comes first. And I would argue that actually there is no conflict because state says it has medical use and the federal controlled substances acts says that if it has accepted medical use, it cannot be in federal schedule. Well, if the legislature passed the bill, 2002, legally, signed off by the governor, set up this whole process of growing cannabis, the laboratories, the dispensaries, all of the doctors and everything. So given the act of using it, says that the state okayed this. So how is it that they decided to jump over the state? Well, you know, when a state takes this step, and it is a fairly big step because it's the first time that a state is giving medical use to a schedule one controlled substance which immediately invalidates its placement on the federal schedule one regulation. So unfortunately, after taking that step, the state did not pursue it any further and what really needs to be done is further steps need to be taken to address this conflict that our state created by accepting the medical use of marijuana because of the impact it has on federal. We are going to take a break. We'll be back in a minute and then I want you to walk us through the steps. What we have to do, how we can get this resolved, okay? Sounds good. Hi, I'm Pete McGinnis-Mark and every Monday at one o'clock, I present Think Tech Hawaii's Research in Manila where we bring together researchers from across the campus to describe a whole series of scientifically interesting topics of interest both to Hawaii and around the world. So hopefully you can join me one o'clock Monday afternoon for Think Tech Hawaii's Research in Manila. Aloha. My name is Mark Shklav. I'm the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea comes on every other Monday at 11 a.m. Please join us. I like to bring in guests that talk about all types of things that come across the sea to Hawaii. Not just law, love, people, ideas, history. Please join us for Law Across the Sea. Aloha. Aloha, we are back and I'm Marcia Joyner and we are spending our time today with Dr. Cliff Otto and he is what I call a real champion and not only is he a medical doctor but he has given his time to try to sort out all of the stuff that goes with medical marijuana. So take us through the steps of the state versus the feds and the police department and all of the nonsense that's going on with them. Sure. So perhaps a good place to start would be looking at the state law that authorizes exemptions for access to this confidential patient database. And the statute that does that is HRS 329-123. And what that did is it set up a 24-hour, 7-day a week access hotline, automated hotline for law enforcement. And the language in that statute talks about reasonable access to the registry for official law enforcement purposes with the intent of law enforcement being able to verify that patients are complying with the registry program. So if they're out in the field and they've come across a patient that has plants on their property, they have a way to immediately verify that the patient is a legal registered patient. So if the patient has a card and shows them the card and they don't have to go through this, is that correct? Well, that's really up to the police officer. If they had a valid card, the police officer might feel comfortable that that's enough verification or they could back that up by calling it to the database. That's up to them. But after the statute was created and when the program shifted over to the Department of Health, the Department of Health had to adopt its own set of rules that would administer the program. And so they made a very small but significant change to the administrative rule that governs exceptions to the database. And if I might just read that one little section, the exemption is state and local law enforcement agencies for the purposes of verifying registration with the department pursuant to this chapter and then they inserted or for official law enforcement purposes. And it's my belief that by making this very slight change the access, the exemptions for access has been opened up to a very overreaching list of possible purposes. And that administrative rule is further updated recently back in November and they put in the word federal. So now federal agents can gain access to the registry database for other law enforcement purposes. And I think that's where we need to really address the changes that need to be made because that rule can be amended. And in fact myself and one of my colleagues have petitioned the Department of Health to amend that rule to try and bring it back in line with the intent of the statute so that the reason for the registration would be compliance with the program. So by compliance you mean like you said if somebody is growing and or that's not legal. That does not have a medical card. Is that what you mean by compliance? Well sure compliance with all the regulations of the program meaning four ounces of usable material and plants of any size or degree of maturation even though we still don't have a definition of what a plant is that applies to patients. But so complying with those specific requirements. What if you pick up a young man or woman who is doing the what is that called a vapor or whatever. Okay vaporizer or a pen. Yes okay and they say well I have PTSD I'm a veteran I have PTSD. But they so the police then say well you can't smoke in the park. And they say but I've got a reason and so is that that is that compliance with the police then say but there is no smoking in the park. Would that constitute compliance? Well medical use is not allowed in public places. And so if a patient were using their infused E cartridge in a public place they would be out of compliance with state law. And they would not be afforded the protections that state law allows. So patients have to be very careful about understanding what the medical use of cannabis means and making sure that they comply with those regulations so they are protected. So when they get the card they get all of this says that you can and cannot do when they do they get instructions or does the doctor give them the instructions. How do they know what to do? Well ideally it would be the certifying physician that provides information on changes in state law because part of our job is to make sure that our patients are safe. And so I feel that it's our responsibility to include that in the certification exam. So if you're living in a condominium and somebody says I smell smoke and call the manager or the police or what not would that be the compliance? Would the police then have the opportunity to check to be sure you are in fact in compliance? Well that's an interesting issue in condominiums because the inhabitant might not be the owner and they might not have permission to engage in the medical use of cannabis in their unit. So that's a bit of a complicated issue but if somebody were to smell that distinct smell of marijuana and call the police the police could certainly investigate but they would really need a warrant in order to gain access to private property. And I think that's an issue that patients don't understand fully that police do not have free access to come on to private property for whatever reason. So that also falls in this category of helping patients understand what their rights are under state law. Tell me now if we're going to the legislature to get it de-scheduled or clean up the language or what have you. What can we our listeners do? How can we support what you're doing? Well I think the best way that people residents can support this effort is to contact their local senators and representatives and let them know in a polite but persistent manner that this is something that needs to be addressed. And there are several things that need to be looked at this next session one of which is recognizing that the current state and federal scheduling of marijuana does not really apply to the medical use of cannabis. We are dealing with situations where banks are not able to get engaged with this. The university is not willing to touch this even though we have our great cancer center. And now we have our police department trying to figure out what to do as this relates to federal law. And if we could understand that actually federal scheduling does not apply to this particular medical use of cannabis in Hawaii, we could solve a whole range of these problems that are currently facing. Do you think that perhaps our legislators do not know, do not understand fully? Well I think education is key. This is not a simple issue. I've been researching it for five years. But I think we also need to engage our attorney general and have a discussion to bring this issue to the surface and clarify the role that state accepted medical use has upon federal law. So what we need at the legislature is an informational, what they call informational briefing. That would include the legislators, the attorney general and the public. Sure, that could be a great forum for bringing this information forward. If we're going to move forward and not have all these strange things going on, people being afraid of losing their guns and surrendering their ammunition and all of this kind of stuff, we need something. We need to move forward. Patients are going through enough. If you have chronic ailments, you're dealing with enough. You don't need to be afraid that the police are going to come get you. Absolutely. And what confuses me is why are people and patients and our legislators and our dispensary owners willing to operate under this assumption that they're violating federal law? That's something as a physician I have to be very vigilant about because of my own licensing. So I would think that patients, you're right, they are going through a lot already just to try and stay healthy. So it's difficult for them to bring this forward and we just need to do as much as we can. Well, we are just about out of time. Would you send me the petition so that we can make it available to our viewers and they can somehow assist you in what you're doing? I'd be happy to. Well, it's been a pleasure to have you and you will come back again. Absolutely. I hope. Yes. Thank you so much. Thank you. It's been a real joy and we'll see you next time. Aloha.