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Medical Marijuana

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California Medical Marijuana Attorney

Overview of Medical Marijuana

California voters have passed two initiatives regarding the use of medical marijuana in California. The California Compassionate Use Act, aka Proposition 215, took effect on November 6, 1996 and was codified as Health and Safety Code section 11362.5. The law legalizes the possession and cultivation of marijuana for patients and their primary caregivers, given the recommendation or approval of a California-licensed physician. The full text of the law is below. California’s Medical Marijuana Program, aka SB420, took effect January 1, 2004 and was codified as Health and Safety Code sections 11362.7 through 11362.83. The law:

  • allows patients to form medical marijuana cooperatives or medical marijuana collectives;
  • establishes a voluntary state ID card system through county health departments;
  • establishes guidelines as to how much marijuana patients can possess or cultivate;
  • increases the scope of the California Compassionate Use Act to include transportation

The Medical Marijuana Program (MMP) allows patients to possess 6 mature or 12 immature plants, and 8 ounces (1/2 pound) processed cannabis per patient. Individual counties and cities can allow higher limits, but no municipality can force a limit lower than the Medical Marijuana Program (MMP). If a physician allows it, patients can be exempted from these limits. However, the California Compassionate Use Act (CUA) actually allows patients to posses any amount of marijuana necessary for their personal use. The conflict between these two provisions was resolved in the 2010 California Supreme Court case of People v. Kelly (see below for more details).

Primary Caregiver

The California Supreme Court has defined as a “primary caregiver” as the person who has consistently assumed responsibility for the housing, health, or safety of a qualified patient. To be a primary caregiver under Health and Safety Code section 11362.5(e), an individual must show that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana. A person does not qualify as a primary caregiver merely by having a patient designate him or her as such or by the provision of medical marijuana itself. Rather, the person must show a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need.

Prosecution of Medical Marijuana Offenses

Federal Prosecution

Despite the enactment of these California laws, marijuana is still illegal under federal law. There is no exception for medical marijuana under federal law and anybody who possesses, cultivates, transports, furnishes or sells marijuana can be prosecuted under federal law. However, in the current political climate, minor marijuana offenses are rarely prosecuted under federal law. The federal government, through the DEA, the FBI and the US Attorney’s Office seek to prosecute large-scale drug crimes, not individual patients and caregivers.

State Prosecution

The most important thing to recognize is that the Compassionate Use Act (CUA) and the Medical Marijuana Program (SB420) do not stop law enforcement from arresting and prosecuting people who possess marijuana. These laws simply allow people to present a legal defense in court once they have been arrested and prosecuted.

The problem that many local law enforcement agencies face is that many people are using marijuana illegally and hiding behind the medical marijuana laws to avoid prosecution. The medical marijuana laws were designed to help seriously ill patients to cope with pain of their sickness. Many people who use marijuana recreationally or who sell marijuana obtain prescriptions from physicians for marijuana use or claim they are part of a collective in order to hide their illegal activities.

In the counties of Los Angeles, Orange and Riverside, the District Attorneys and City Attorneys prosecute marijuana offenses aggressively and they carefully evaluate medical marijuana defenses to make sure they are legitimate. Defendants who use or handle marijuana will most likely be arrested first and then will have to present their medical marijuana defense in court to avoid a conviction. Having an attorney that is familiar with marijuana prosecution and medical marijuana defenses is absolutely necessary when trying to defend marijuana offenses.

The following laws are covered for patients under the Compassionate Use Act (CUA) and the Medical Marijuana Program (SB420):

  • Health and Safety Code section 11357 – possession of marijuana
  • Health and Safety Code section 11358 – cultivation of marijuana
  • Health and Safety Code section 11360 – transportation of marijuana

Furthermore, these laws are covered for caregivers under the Compassionate Use Act and the Medical Marijuana Program (SB420)

  • Health and Safety Code section 11359 – possession for sale
  • Health and Safety Code section 11360 – sale, transportation, furnishing

Important Marijuana Cases

The law surrounding medical marijuana is constantly evolving and every year, new cases are emerging that shed light on the use of medical marijuana and the prosecution and defense of medical marijuana in court. A few important cases involving medical marijuana laws are listed below:

People v. Kelly (2010) 47 Cal.4th 1008 – conflict between CUA & MMP

The California Supreme Court resolved the conflict between the Compassionate Use Act (CUA) and the Medical Marijuana Program (SB420) regarding how much marijuana a patient or caregiver can cultivate. The Medical Marijuana Program (SB420) set a limit of 6 mature or 12 immature plants, and 8 ounces (1/2 pound) processed cannabis per patient. This rule applied to people who held ID cards, qualified patients and primary caregivers.

However, the Compassionate Use Act (CUA) allowed patients, or their primary caregivers, to possess any amount of medical marijuana reasonably necessary for the patient’s medical needs which conflicts with the limits set by the Medical Marijuana Program (SB420).

The California Supreme Court held that the Compassionate Use Act trumps the Medical Marijuana Program in this respect. Patients can possess more than 6 mature / 12 immature plants, and more than a ½ pound (8 ounces) of processed cannabis, as long as they can establish this amount is reasonably necessary for their personal medical needs. However, the limits set by the Medical Marijuana Program still apply to any patient that voluntarily enrolls in the program and obtains an identification card.

People v. Wayman(2010) 189 Cal.App.4th 215 – a medical marijuana defense to transporting marijuana must show that the transportation was reasonable related to medical needs

In this Orange County case, the defendant was entitled to use medical marijuana under the Compassionate Use Act (CUA), but kept his entire stash in his car in order to appease his mother, whom he lived with. The defendant was convicted of transporting marijuana. His medical marijuana defense didn’t hold up because the quantity transported and the method, timing, and distance of the transportation were not reasonably related to his current medical needs. The court held that if the defendant were leaving town for an extended period of time, then that might justify his possession of four ounces of marijuana in his car. However, the defendant couldn’t transport his entire stash at all times simply to appease his mother.

People v. Hochanadel(2009) 176 Cal.App.4th 997 – storefront marijuana dispensary was not a primary caregiver

This case involved a specific storefront marijuana dispensary in Riverside County. The court held that this specific dispensary was illegal because it did not meet the standard required to be a primary caregiver under the Compassionate Use Act (CUA) or the Medical Marijuana Program (SB420). The court listed several factors that influenced their decision. There was no evidence the dispensary had an existing, established relationship with its customers, where it provided for their housing, health or safety, independent of giving them marijuana. Although the customers designated the dispensary as their “primary caregiver”, there was no evidence of collective or cooperate relationship. Some of the marijuana purchased by the dispensary was from a source other than a dispensary member (which defies the rules of a collective / cooperative). The dispensary was operating as a for-profit business, which is illegal. The evidence of the dispensary being for-profit was the large number of transactions, the price of marijuana and the cash-only nature of the business.

People v. Brooks(2010) 182 Cal.App.4th 1348 – probation condition banning medical marijuana

In a case where a defendant has been convicted of a drug-related charge, the court can impose a condition of probation that prevents the defendant from using any drugs, including medical marijuana. In this particular case, the defendant clearly had a drug addiction problem and the court believed that the defendant was hiding behind the Compassionate Use Act (CUA) to mask his drug addiction. However, a court can only impose this type of probation condition in cases where the restriction is reasonably related to the conviction, i.e. drug charges.

City of Garden Grove v. Superior Court of Orange County(2007) 157 Cal.App.4th 355 – return of marijuana property

The defendant in this case, Mr. Kha, was stopped during a routine traffic violation. The police found and seized his marijuana. Mr. Kha was charged with transporting marijuana but his case was eventually dismissed because he had a doctor’s approval to use marijuana for medical reasons. Mr. Kha then filed for a return of his marijuana which the government opposed.

The court of appeal held that after his case was dismissed, Mr. Kha was entitled to the return of his marijuana. Due process requires the return of property after the dismissal of a criminal charge.

Other Medical Marijuana Cases

There are dozens of medical marijuana cases. If you have any questions regarding medical marijuana, please contact our law office today for a free consultation.

Text of California Compassionate Use Act

Health and Safety Code Section 11362.5 states:

Sec. (1) a-b The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.

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