SIOUX FALLS, S.D. (KELO) — South Dakota lawmakers are considering a bill that would bring a big change to Initiated Measure 26, the medical marijuana bill 70 percent of voters approved in the 2020 election.

Senate Bill 20 would eliminate the affirmative defense measure in IM 26.

“SB 20 was about the medical purpose defense, after the fact that I could have had a medical card,” Senator Helene Duhamel, a Republican State senator from Rapid City said.

Now that the state has started issuing medical marijuana cards Duhamel sponsored SB 20, a bill that would eliminate the statute in IM26 that provides people with qualifying medical conditions legal protection from prosecution, even if they do not have a card from the state.

“If you don’t need the medical, don’t need to see the doctor, don’t need to go through the process, why get a medical card in the first place? We think that is really important for the whole medical program,” Duhamel said. 

But medical cannabis supporters say while the state’s program is being implemented…

“People are having a lot of trouble getting cards,” Mathew Schweich with South Dakotans for Better Marijuana Laws said.

..South Dakota’s medical cannabis program is nowhere near fully functioning. 

Schweich says the state’s new program is going through growing pains, with no businesses or dispensaries licensed or operating yet and only 200 medical cannabis cards approved for users in the state. 

“Every day we get emails, Facebook messages, phone calls from people saying, I can’t get a recommendation from my doctor, what do I do?” Schweich said. “The reality is, we’re in a transition phase with the program just getting up and running and a lot of doctors are hesitant to write these recommendations. I think over time it will get better, but right now it’s very difficult for people to get recommendations.”

“Just about everyone that I’ve asked has had trouble,” Sioux Falls resident Patrick Lynch said. 

Lynch has had Multiple Sclerosis for more than 30 years.

“There’s no cure for MS. It’s how to deal with systems that go along with MS,” Lynch said.

Years ago, his doctor put him on valium to help manage his debilitating muscle spasms.

“It worked,” Lynch said. “It just made me a pile of mud. I couldn’t function.”
Eventually, he met another MS patient who recommended trying medical cannabis instead.

“I said well that’s illegal. And he said, well it works,” Lynch said. “I tried it, and it works.”

Lynch fought for years to help legalize his preferred medical treatment in South Dakota.

“It would alleviate a lot of people’s fears of getting arrested because they know that they have a card in the state, they’re legal and they can go about their business,” Lynch said. 

But now that the legal process is finally here, Lynch is struggling to get a card.

“It’s all about getting the doctors to sign off on it, and the problem is, the doctors don’t want to,” Lynch said. 

“Some of the biggest hospital systems have said they don’t want their doctors issuing these recommendations,” Schweich said. “I believe that will change over time, overtime this will become normal, more and more doctors will become comfortable with it.”

Schweich says the legal route to medical cannabis is what ‘99.9% of patients would prefer to use over a potentially dangerous black market. 

“They think it’s a party drug or something. It’s not,” Lynch said. “I don’t use it to go partying or anything. I use it to contain my muscle spasms.”

“They would prefer to know that what they’re using to alleviate their symptoms is regulated, consistent and safe,” Schweich said. “They’re also going to do that because they won’t get arrested.”

Schweich says the affirmative defense clause in IM26 doesn’t prevent patients from getting arrested, but it does provide them a legal defense from prosecution in court.

He believes until the state’s program is fully operational and access to cards is easier for patients, the affirmative defense clause is critical to protecting patients from prosecution and upholding the will of the voters. 

“Clearly voters do not want people like Pat facing conviction, they don’t even want people Pat facing arrests, but at the very least, lets prevent these convictions from taking place,” Schweich said. “Down the road when this system is set up and people like Pat are able to get a recommendation, able to get a card, if at that point politicians wanted to adjust the affirmative defense, Ok let’s talk about it.”

“In reality very, very few people read all 95 sections of IM 26,” Senator Duhamel said. 

Duhamel says she doesn’t believe this affirmative defense clause is what the voters intended when they approved IM 26. She and other supporters of SB 20 hope lawmakers will approve the removal of this section of IM 26 this legislative session.

“The reason we have a legislature is to do what is right for the people of South Dakota. This is an industry bill, written by the industry, for the industry. We serve as a legislature to do what we think is best for the state of South Dakota,” Duhamel said. 

SB 20 was passed by the Senate 25 to 10; it is scheduled for a hearing in the house judiciary committee on Wednesday.