Fear of Flying: Void for Vagueness in Hawaii

By Mary Lou Smart © 2012 www.medicalcannabisart.com

When you pick up a prescription, what do you do with it? Wiggle your nose three times to be instantaneously transported back to bed? Have

you ever driven across town with a bottle of meds or taken them to work with you? Have you ever, God for-  bid, taken medicine aboard an airplane?

Patients carrying legal cannabis in Hawaii face any num- ber of risks, including confiscation of medicine, harass- ment, missed planes, arrests, fines and court cases. The law is vague, according to prosecutors, defense attorneys, judges, and just about anyone weighing in on the subject.

Hawaii decriminalized the medical use of marijuana in 2000. Its revised statutes (HRS) include HRS 329-121  and HRS 329-122, which state that “medical  use”  includes transportation (329-121), but that the same “medical use” is prohibited in any moving vehicle and in any other place open to the public (329-122). Prosecutors have won cases with the argument that HRS329-122 clearly prohibits any form of travel, which they define as medical use, with cannabis; however, many of these con- victions are appealed.

An amicus curiae (friend of the court) brief submitted by the ACLU of Hawaii in support of a patient appealing a conviction maintains that the state’s medical marijuana law contains significant conflicting sections. Prosecutors use these conflicting passages, it argues, to sidestep the obvious intent of the law.

“Prosecutors in Hawaii County appear to be the only prosecutors in the entire nation pursuing criminal charges against medical marijuana patients who do nothing more than transport lawful, personal quantities of marijuana in accordance with applicable state law.”

The ACLU’s argument is that the logic being used in con- victing patients is absurd. Taken literally, it maintains, the logic is a stretch that would make any conviction a viola- tion of due process. Even before the appeal that this brief was written for was heard, District Court Judge Barbara Takase had tossed out two similar cases, stating that the law’s passages about transportation are too vague to sup- port a conviction.

Transportation is not a simple affair in this archipelago of eight major islands in the North Pacific Ocean. Without ferries, inter-island travel is often via airplane where Transportation Security Administration (TSA) agents search passengers for weapons. In Hawaii, many patients travel to other islands, especially Honolulu, for medical care such as chemo.

Matt Rifkin is a patient. He has become an advocate for other patients, particularly those that get caught up in the muddy waters of the transportation issue.

Hawaii’s medical marijuana program is overseen by the Narcotics Enforcement Division (NED), which tends to treat the patients that the law was intended to protect like criminals. Hawaii’s medical marijuana program does not prohibit dispensaries, but it makes no provision for them. Without the protection of a mention in this law,  opening  a dispensary has proven to be a risky proposition. Without dispensaries, patients carry their legal cannabis when traveling from one island to the next.

Defense attorneys maintain that patients cannot be expected to fly to where they’ll be for several days of treatment, and then have to score marijuana on the black market upon arrival simply because the law is vague. Because of this legal quagmire, the sick face arrest if they fly with cannabis in much the same way that they face arrest if they leave their legal cannabis at home, and then try to buy it on the street after getting off of the plane.

Rifkin became aware of the state’s inter-island dilemma in

2007 when he learned that a friend suffering from leukemia was also coping with the fear of arrest while fly- ing to Honolulu for his chemo every two weeks. His wife worked for the airlines. While he did bring his legal cannabis onto the plane each time, he was worried about jeopardizing her career, her health insurance, and her income, all of which his family relied on, if he were to be arrested.

Rifkin started asking around. The TSA agents at Kona International Airport told him that he could bring his cannabis on the plane. They told him that if they searched his bags and found it, he would be fine as long as he had proof that he was a legitimate patient. After hearing that, he adopted a policy of putting his cannabis into a cloth pouch, and placing it on top of his clothes where it could easily be found in his suit case. The TSA did not have a written procedure, but Rifkin transported his medical cannabis three or four times with no problem.

On Christmas day in 2010, he was flying to visit a friend in Honolulu.

“The TSA staff looked like they had just gotten off an air- plane from the mainland,” he remembered. “They were very pale and white, and this time they didn’t like what they saw when they searched my bag.”

A TSA agent pulled him aside, and airport security was called.

“A rent-a-cop was threatening me, saying that they would be taking me away in handcuffs, calling the DEA, and letting the courts sort it out,” he said.

While the local police department was called, no one ever showed up to arrest him. After confiscating his medicine, they let him go. The next day he received a call from Hawaii County’s police department  asking  him to come in for questioning.

“They said, “Look, we just want to get your side of the story. We realize that you are not a dealer because you were very open, and you were not carrying much,”” he said. “I said that I was going away for a month  and that I’d call them when I returned. They said fine.”

As it turns out, the officer assigned to his case was reas- signed, and he never heard from them again.

“The whole inter-state transportation issue is interest- ing,” said Jeanne Ohta, executive director, Drug Policy Forum of Hawaii. “There have been varied responses when a patient’s marijuana is found in a bag by TSA.

Some are let go. Some are arrested. In the cases I know of where a patient is arrested, prosecuted and convicted of possession, the cases are appealed. It is especially urgent to clarify ambiguities that have caused these patients to be arrested.”

The amicus brief sited above was written in support of Geoff Woodhall, a legal patient who was carrying two grams of cannabis in his pants pocket that was found during a TSA pat down prior to a flight from Kona International Airport to Hilo International Airport. The legal limit for patients in Hawaii is three ounces, and Woodhall was carrying two grams. He was turned  over  to local law enforcement officers, but not arrested. They detained him, handcuffed him, brought him to their secu- rity shack, confiscated his medicine, and then let him go. By that point he had missed his inter-island flight. After being served with a summons more than three months after the incident, he learned that prosecutors had pur- sued a misdemeanor possession charge. District Court Judge Joseph Florendo said that the law is crystal clear, and patients cannot travel with cannabis. HRS 329-121 defines authorized medical use as “the acquisition, possession, cultivation, use, distribution, or transportation of marijuana” by qualified patients. HRS329-122 states that the medical use of marijuana is prohibited in any moving vehicle or in any other place open to the public. It is clear, therefore, that a patient is

permitted to transport cannabis (HRS329-121), but strict interpretation of transporting as being medical use, which is how Judge Florendo interpreted HRS329-122, makes moving the medicine just about anywhere illegal.

“None of these patients are walking through the airport smoking joints and waving their ounces of pot around,” said Rifkin. “The patient in Kona, his cannabis only came to public view when the TSA agent pulled it out of his pocket. If you follow this logic, then the only place where you can possess your marijuana is at the address on the medical card where you are registered. That is utter crazi- ness.”

A federal agency, the TSA was created as part of the Aviation and Transportation Security Act in 2001, and originally part of the U.S. Department of Transportation. The TSA was moved to the Department of Homeland Security in 2003. When questioned by a Hawaii Tribune Herald reporter in 2010 about its drug screening proce- dures, TSA spokesperson  NICO  Melendez  said  that  when drugs are found during a screening, the TSA would not have the authority to make an arrest. Local law enforcement would be contacted. “Our mission  is  to  keep explosives off planes,”  he said.  “Drug  enforcement is not our mission.”

While other medical marijuana states have statutes with conflicting passages, legislators and other government officials have set up clear policies to protect patients. Not in Hawaii, where NED uses its bizarre oversight of a medical program to profile and criminalize patients, and seems to influence the legislature as well.

The amicus brief points out that, “no other jurisdiction that has enacted a medical marijuana program is prose- cuting patients for transporting medical marijuana, nor is the federal government prosecuting medical marijuana patients who comply with local law.”

In Oakland, California, for instance, the Sheriff’s

Department administers security at Oakland International Airport where procedures are in place out- lining what to do if TSA finds cannabis on a legal med-  ical marijuana patient. The Airport Police Services Policy and Procedure states that if the patient possesses less than eight ounces, which is the legal medical marijuana amount in that state, they are free to go. Their  medicine is not confiscated.

In Oregon, the state law regarding medical marijuana is applied to passengers on airplanes. In 2009, Wendy Hain, assistant general counsel, Port of Portland, responded to an inquiry by stating that while the Port does not have an official written policy, the Port complies with applicable state and federal laws. Her letter added that, “Marijuana  is not seized from a passenger who holds a valid Oregon Medical Marijuana card when boarding aircraft at the Portland International Airport as long as the passenger is not carrying a quantity that exceeds an amount that he or she is lawfully authorized to possess.”

In the Aloha State, where a criminal model seems to con- trol a medical issue, advocates are finding that progress is slow.

A member of the Medical Cannabis Working Group  set  up by the state legislature; Matt Rifkin said that the num- ber of patients being arrested while boarding planes is not known but that all signs point to quite a few accepting their fate and paying fines to avoid the hassle of a court case. He said that since many of the few cases that actu- ally make their way to court are being appealed, the transportation issue will probably be heard by the state’s Supreme Court sooner than later.

“In Hawaii, their gig is to arrest you and let the courts sort it out,” said Rifkin. “From the start, the intent of the law was compassionate care. Many of us travel to differ- ent islands for care. People travel with their medicine. We should be protected under this law, and it really is that simple.


Leave a Reply

Your email address will not be published. Required fields are marked *

Latest Posts

This menu shows the most recently posted content for a quick update since you last checked-in.

News Distribution Partnership with CannabisNewsWire (CNW)

Treating Yourself is a news distribution partner of CNW. Would you like your story headlines published on this website? Are you...

CBC Family Feud’s Gerry Dee to Host Cannabis Industry Awards Gala

ANNOUNCING THE 2020 O’CANNABIZ INDUSTRY AWARDS GALA – NOMINATIONS NOW OPEN FOR SUBMISSIONS EVENT DATE: THURSDAY APRIL 23, 2020 TORONTO AIRPORT...

From the Family Vault of Shanti-Baba

"Seems more than strange to grow up as a child and see how important my parents and their peers viewed...

Why Get Pines Wheatgrass

Wheatgrass might just be a typical plant growing in your backyard, but few people know that it has a lot...

How to Make Your Own Canna-Caps

by Old Hippie BeyondChronic.com What do you do when you need cannabis medicine and you can’t or don’t want to...

Database Search

Are you researching marijuana as medicine? Use the simple form below to search any condition. Read personal stories from patients just...

Cannabinoid Receptors in the Body and Their Importance

David B. Allen M.D. By legal Democratic Vote; Cannabis Is Medicine To get CBD from top verified sources, click here....

The True Origins of Haze

By Big Herb It all began in 1969, In Santa Cruz, California. At the time, there was Thai Oaxacan and...

Top 5 Health Benefits of Hemp Seeds

Hemp seeds are those seeds that are formed from Cannabis Sativa, a hemp plant. They are different from marijuana but...

Cannabis and Working Out

If you're wondering how cannabis can help you with your workout regime, then you probably need to read this article....

How Companies Are Creating Innovative New CBD Products

Cannabidiol (CBD) is a non-psychoactive compound found in cannabis and hemp that may deliver unique health benefits. CBD is just...

5 Marijuana Compounds That Could Help Combat Cancer, Alzheimer’s & Parkinson’s

by Paul Armentano Deputy Director of NORML (the National Organization for the Reform of Marijuana Laws) This commentary was initially...

Living with Osteogenesis Imperfecta

By Michael Morrow My name is Michael Morrow, I'm 37  years  old and I have Osteogenesis Imperfecta. OI is a...

Gifts from Mother Nature

By Dianna Donnelly - "The couch activist” Aspirin, otherwise known as Acetylsalicylic Acid, is one of the most commonly ingested preventative medicines...

Paradise Seeds Allkush; More Than Just Kush

One of the new feminised strains from Paradise Seeds is named “Allkush”. So nothing but Kush? Taken genetically literally, no...

28ft… The John Berfelo Story

By John Berfelo "Medical marijuana saved me from a life on pharmaceutical drugs..." My name is John Berfelo and this...

My Grinspoon Moment

By Carl Hedberg Sometimes a single meeting can change your life. Such was the case for me when, in the...

The Science Behind Cannabis Safety

David B. Allen M.D. By legal Democratic Vote; Cannabis Is Medicine. Drug safety is on the minds of most all...

Heavenly Hash: The Art, Science and Industry of Cooking with Cannabis Extracts

by Samuel Wells Samuel Wells is an Assistant Professor of English in Denver, CO An Edible Enigma As scientific and...

Living High with HIV

How Medical Marijuana Rivals Mainstream HIV Medicine By BenBot In 2011, I was diagnosed with HIV. An unmarked van was...

Post-Traumatic Stress Disorder

With Veterans at Risk, Change is Necessary, but Progress is Slow By Mary Lou Smart In 1933, the repeal of...

Milagro Oil for Lung Cancer

By Mary Lou Smart www.medicalcannabisart.com Compassionate care advocates Michelle and Michael Aldrich at Patients Out of Time’s Seventh National Clinical...

Living and Dealing with ADHD

by Patricia Allen It was back in 1974 that I first became familiar with the term Attention Deficit Hyperactivity Disorder...

Inflammatory Comments

by Bill Drake As a long-time TY reader I’ve noticed what seems to me to be a rather over- whelming...

How Cannabis Might Keep Coronary Stents Open Longer

By David B. Allen M.D.Cardiothoracic and Vascular Surgeon, Member ICRS. And Prisoner of the Drug War Cali215doc@gmail.com First the set...

Unlocking the Secrets, Advanced Tissue Culture

Tissue Culture is a process of isolating cells from plant tissue (explants) which are cultured (grown artificially), in a nutrient...

Anxiety Panic Disorder and Cannabis

By Hal Lubinsky My name is Hal Lubinsky. I'm in my forties, a husband, a father, a grandfather, a U.S....

Can Cannabis Cure Schizophrenia?

By Richard Shrubb, Freelance sailing, health and social affairs journalist ould cannabis treat or even cure schizophrenia? Things look promising...

Multiple Sclerosis: Regaining the Good Life with Whole Plant Therapy

By Mary Lou Smart© 2012 www.medicalcannabisart.com A trial attorney, Jim Dyer practiced law in Tucson, Arizona for 34 years before...

The Science of Cannabis Leads in Many Directions

The Evolution of a Sense of Well-Being By Mary Lou Smart www.medicalcannabisart.com While speaking at Patients Out of Time’s Seventh...

Healthy Body, Healthy Mind

By Shantibaba It is evident for all people who wish to listen that doing all things within moderation is better...

Post Traumatic Stress

Psychology and Medication at its Best By Jeff Kundert OTR Jeff works as a Wellness and Fitness Educator. He has...

The Ripper Effect

By Subcool Some really interesting information has come to my attention, and I am very excited to tell everyone in...

Auto-flowering Plants

By Shantibaba The discreet evolution of Auto-flowering cannabis plants is a recent occurrence, one that is in mode at present...

Uncovering the Original Sacrament: Chris Bennett’s Cannabis and the Soma Solution

Review by Samuel Wells When asked to name an author crucial to the growing mainstream understanding of the uses of...

Cornerstone of Individualized Phytogenetics ACDC 22:1 @ CB3

Alternative Cannabinoid Dietary Cannabis 22%CBDA:1%THCA acting at GPR55 Alias CB3 by William L. Courtney, MD, AACM American Academy of Cannabinoid...

Mr. Magoo

By Ron Hudson My birthdays: I woke that birthday morning, in October of 1966, knowing it would begin like the...

Medical Cannabis University

By Reverend Philip H Hoff - Chancellor, MedicalCannabisUniversity.org ( MCU, Inc. ), a 501 c(3) nonprofit school. The school focused...

Storm’s Story

By Georgia Peschel WHEW! Delivering this kid was like delivering a hurricane!” When our son was born, those were our...

Soil Pests & Diseases

By Lazystrain Soil is a living organism made up of billions of microbes and bacteria. The cosmology of soil life...

A Tragedy Felt Around the World

by Jonny Appleweed On Oct. 27, 1970, President Richard M. Nixon signed into law the Comprehensive Drug Abuse Prevention and...

Autism & Cannabis

Prohibition Makes it Tough on Parents by Mary Lou Smart Jeremy Patrone (not his real name) has a goal. He...

Vaporization of Cannabis: Are there benefits over combustion?

By William Eckhardt Although vaporization is a relatively recent development for the delivery of cannabinoids the proliferation of vast numbers...

Bedrocan

By Harry Resin Generally when you think of Amsterdam, you think of the coffee shops, but that’s not all that’s...

How To Successfully Detox From Marijuana

Whether you have a drug test to pass, or you simply want to cleanse your body from marijuana, you definitely...

How Much THC Is Ideal for Optimal Creativity

Many cannabis users will vouch that marijuana can cause them to tap into their creative side. While the psychoactive effects...

How to Choose the Right CBD Products for Pets

Over the years, lots of states in the US have seen the benefits of medical marijuana. There are pills made...

Bulking Up Tips – Muscle Building Steroids

Bulking up is a long, long process. Daily, intense workouts, a strict diet and much more… God only knows how...

Using CBD Oil For A More Relaxing Massage

I usually get a massage at least twice a month. It helps get me relief after a very stressful week...