Medical Marijuana

San Francisco, California Law Firm

MEDICAL MARIJUANA – THE BASICS

The Medical Marijuana Program (MMP) was established to provide a voluntary medical marijuana identification card issuance and registry program for qualified patients and their caregivers. The system allows for the cultivation and transportation of marijuana in California for medicinal purposes. To facilitate the verification of authorized cardholders, the verification database is available on the internet at http://www.calmmp.ca.gov/.

In 2003, Senate Bill 420 (Chapter 875, Statutes of 2003) was passed as an extension and clarification of Proposition 215, the Compassionate Use Act of 1996.

This act provides for the following:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the persons 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 for the safe and affordable distribution of marijuana to all patients in medical need of marijuana . . .

For full text of Proposition 215: http://www.hr95.org/Prop215.html.

The Medical Marijuana Program, within CDPH, is administered through a patient's county of residence. Upon obtaining a recommendation from their physician for use of medicinal marijuana, patients and their primary caregivers may apply for and be issued, a Medical Marijuana Identification Card. SB 420 also required that the MMP be fully supported through the card application processing fees. Both the state and the counties have authority to cover their costs for the program through these application fees.[1]

Use of marijuana for medical purposes may be used as a defense against a violation of Health and Safety Code Section 11358 which says "Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided."

For full text of related Health and Safety Codes: http://www.californiapolicechiefs.org/nav_files/marijuana_files/california_codes.pdf.

Many cases brought under this code section revolve around whether the plants being cultivated were for personal use or sale. The experts on the case will point to factors such as the number of plants, the proportion of the plants that are truly usable or sellable, the suspect's normal level of personal consumption, the suspect's financial records, and the presence of other indications of marijuana sales activity.

Each patient in California may cultivate and possess at least six mature or twelve immature plants, and eight ounces of dried marijuana. A person legally cultivating marijuana under California law, however, may be charged under federal law. Federal statutory minimum sentences are triggered at 100 plants or 220 lbs of medicine per cultivation site, so these are the amounts most likely to grab the attention of federal authorities.

People v. Kelly determined that caps established by Health & Safety Code 11362.77 of S.B. 420 without a relevant doctor's exemption were an unconstitutional amendment of Proposition 215. This ruling, however, may still be reviewed. Patients should still obey their county's guidelines to be safe.

Courts will often find that caregivers need to be providing much more than medicine to be considered a "caregiver." While caregivers are permitted under California law to cultivate and provide medicinal marijuana to patients, they often need to be providing other types of assistance to the patients' health and well-being to be considered a caregiver.

Patients may, however, form collectives to cultivate marijuana for medical purposes. The members must simply contribute labor, funds, and/or materials, in exchange for a share of the medicine. All members should sign an agreement and provide their physician's recommendations. Collectives should stay within the bounds of the maximum amount allotted for each person times the number of persons in the collective.

Under a recent court decision, Ross v. Raging Wire, medical marijuana patients cannot state legal claims for damages under the Fair Employment and Housing Act or on public policy grounds. Patients do not have the right to refuse pre-employment drug tests even if they occur after a new job has begun. A patient can still file a discrimination complaint based on marijuana use, but likely no action will be taken.

"Prop 36", a program that provides drug treatment to first and second time non-violent drug offenders in place of jail time, also does not generally allow for the use of medical marijuana. Even though marijuana for medicinal purposes is legal in California, the purpose of Prop 36 is drug treatment, and marijuana use for any purpose is often not considered to be consistent with that goal. A patient may appeal to the program supervisor or the judge, and in Alameda County the patient will often be allowed to continue using marijuana if he receives a letter from a physician. Before accepting a Prop 36 plea, patients should consider the possibility of having to give up their medicine.

Medical marijuana is generally accepted in California, but there are still limitations placed on the use of marijuana. When on Prop 36, Drug Court or Drug Diversion, a patient often cannot continue using medical marijuana. This should be considered in plea negotiations if a patient will have a hard time with this. These defendants may be on probation and may need to follow the rules of their program and drug test.


[1] Department of Public Health http://www.cdph.ca.gov/programs/MMP/Pages/default.aspx.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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