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Tom Daubert

Tom Daubert, who heads a medical marijuana advocacy group called Patients and Families United, helped lead the 2004 medical marijuana initiative get passed. Helena Independent Record

Years ago, as Tom Daubert envisioned a medical marijuana initiative for Montana, one thing never crossed his mind.

"I guess as I thought about the language from laws in other states, I always saw medical use of marijuana as something that would happen in private," said Daubert, one of the leaders of the movement that led to passage of the state's medical marijuana initiative in 2004. "I didn't really see that we'd be having a discussion about the public use of something being used as medication."

And yet, where medical marijuana can be used is just one of many questions surrounding a law that many think is far too vague.

The law itself does set some guidelines, but they don't go quite as far as the Helena-based Daubert saw them going.

"I felt like the law set it out pretty well, but I see now that it's perhaps not as specific as it could be," he said. "This is something we need to fix. I don't think we expect to see diabetics standing on the sidewalk taking insulin shots and I don't think we should see medical cannabis users standing on the sidewalk smoking."

The law certainly pre-empts medical marijuana use in some public areas:

• In a school bus or on school grounds.

• In a correctional facility.

• At any public park, public beach, public recreation center or youth center.

Some of those terms - public recreation center, for instance - are so vague that no one really knows what's intended by the language.

Public park is a little clearer, though establishing boundaries for such places creates complexities. Where, for instance, does Missoula's Caras Park begin and end? Are the banks of the Clark Fork River or the shores of Flathead Lake "public" beaches?

"There are enough holes in the law to make it difficult to interpret in some areas," said Missoula Police Chief Mark Muir. "But there are parts that are plenty clear, and what that means to us, for the most part, is that if you can smoke tobacco there, you can smoke medical marijuana."

That means you can smoke in your car, although you can't be impaired if you're driving, Muir said.

State law clearly regulates indoor smoking and the Indoor Clean Air Act prohibits tobacco smoking inside most buildings. That law covers medical marijuana as well.

"The fact that it's being used as medicine doesn't create an exception from the clean air act," said Linda Lee, supervisor of the Montana Tobacco Use Prevention Program. "The act talks about combustible product and that includes marijuana. It creates smoke and that creates at least some level of toxicity."

Despite that apparent clarity, the Missoula City-County Health Department has fielded questions about the possibility of setting up an indoor smoking "clinic."

"We had someone ask us about the viability of a medical marijuana clinic, where people would be able to smoke indoors," said the department's Greg Oliver. "This person had already hired an attorney to look into it. We told them no, it's not possible under the indoor smoking law."


But let's say you were a medical marijuana patient who also had an interest in Missoula's recent effort to pass an anti-discrimination ordinance. Could you testify at City Hall, then step outside and smoke medical marijuana on the sidewalk next to the police station, then go back to the meeting?

"Absolutely," said Chief Muir. "There are businesses that have rules about smoking within some number of feet of an entrance, but on the public sidewalk, you can smoke. I don't have to like it, but that's the way it is."

But could you walk across town, head for the University of Montana Oval and relieve your pain by smoking a bowl by the Griz statue?

"Absolutely not," said UM attorney David Aronofsky. "There is no room whatsoever for discretion on our part, because we are an institution that receives federal funding."

The university receives federal dollars for a host of reasons, and that means UM must certify to the government that it is both a drug-free school and drug-free workplace. And that goes for all schools in the Montana University System.

"That pretty well eliminates anything other than strict compliance," said Aronofsky.

The restriction applies to dorm rooms, which are considered private residences for purposes of search-and-seizure laws but not for drug laws.

"Basically, it's off limits on any university-owned and operated premise," Aronofsky said. "We are doing what we can to help faculty and students find accommodations off campus if this is something that would help them, but anything on campus is not acceptable due to federal law."

The federal designation also puts the kibosh on smoking medical marijuana on the state's millions of acres of U.S. government land.

Despite the Obama administration's directive that it's not really interested in prosecuting users of small amounts of personal marijuana, it remains against the law to smoke the weed on federal land, even if it's for medical reasons.

And that means that it's still illegal to fire up a bowl on the Snowbowl ski lift, a restriction that's never done much to prevent the practice.

All of which prompted a little lightheartedness from Muir.

"I don't think there are enough restrictions in the law, but I think if your place has ‘bowl' in the name, people ought to be able to smoke one," the chief said.


Rather than treating medical marijuana like tobacco, Muir and Daubert would prefer the open-container model that applies to alcohol.

"That essentially confines it to private homes because of the indoor smoking act," said Muir. "Then we don't have people walking up and down the sidewalks smoking joints. I understand the medical aspect of using it, but what people are really talking about in terms of public use is flaunting it."

Agreed, said Daubert.

"What's happening is that the medical aspect of this is starting to take a back seat to the activists who are pushing to legalize marijuana," said Daubert.

Daubert is sympathetic to the move toward legalization, but his primary interest lies in bringing pain relief to those who suffer. If the campaign to legalize marijuana threatens its use by those who need it medically, Daubert won't be happy.

"I feel like what's happening is that the activists are hijacking the discussion essentially," he said. "I think they're misleading the public and they are inviting public misunderstanding and jeopardizing the patient rights of Montanans."

In the interest of clearing up problems caused by loose language in the law, Daubert has been meeting with an interim health committee at the Montana Legislature.

"I do think this is something where the law can be fixed, and it needs a comprehensive effort based on consensus," Daubert said. "The public use aspect is just a perfect example of something that needs to be repaired and can easily be repaired. We've got to get the discussion back on track and back on what it was supposed to be about in the first place."

Reporter Michael Moore can be reached at 523-5252 or at


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