Legal
Legal Information about Medical Marijuana
General Legal Information
PROP. 215, the California Compassionate Use Act, and SB420, the Medical Marijuana Program Act (MMP) were enacted by the voters and legislature, respectively, and are codified in Health & Safety Code 11362.5 and 11362.7 et. seq. While these laws do not generally remove criminal penalties for possession, cultivation or distribution of marijuana for the general public or for qualified patients, or members of collectives, cooperatives or associations composed of qualified patients or their designated primary caregivers who have a physician’s recommendation or approval, these law do provide a defence to what otherwise would be a crime. As interpreted by recent court decisions, the existence of these laws does not prohibit arrest or prosecution. The laws do, however, create criminal defences to what otherwise would be a crime for possession, cultivation or distribution of marijuana. The defences are available as long as the qualified patients or primary caregivers comply with the applicable statutes. Guidelines suggesting proper roles, procedures and forms of associations employed by qualified patients and primary caregivers have recently been promulgated by the Office of the Attorney General of California.
Attorney General Jerry Brown, by establishing guidelines for the operation of collectives or cooperatives, or other entities that comply with state law, signal a turning point in the effort to implement California’s medical cannabis laws and are the culmination of years of persistent work by the medical marijuana community. With these guidelines, patients may come together to operate various forms of associations for the purpose of collectively or cooperatively cultivating and distributing among themselves marijuana for medical purposes. The Attorney General’s guidelines also mention that “storefront dispensaries” may be legal if property formed and operated. Presumably, this would also include a delivery service providing medical marijuana to qualified patients who have formed an association for that purpose.
Click here to view California Medical Marijuana Laws
Lookup any California Law
http://www.leginfo.ca.gov/calaw.html”
HOW MUCH CAN PATIENTS POSSESS OR CULTIVATE?
SB420 establishes a baseline state-wide limit per patient of 6 mature or 12 immature plants, plus 1/2 pound (8 oz.) processed cannabis( hashish is also allowed). Patients can be exempted from these limits if their physician specifically states that they need more. In addition, individual cities and counties are allowed to enact higher, but not lower, limits than the state standard.
The legality of the limits in SB 420 has been disputed in recent court cases. Prior to SB 420, Prop 215 allowed patients whatever amount of marijuana they need for their medical purposes. In some court cases, patients have been acquitted for personal use gardens of 100 plants or more. Some Prop. 215 advocates maintain that SB 420 cannot constitutionally limit the amount patients may legally have for personal use. This issue remains to be settled in the courts. To be safe, anyone exceeding the limits is advised to get a physician’s exemption that states that the quantity recommended is consistent with the needs of the patients as it relates to the patients condition or illness. Also, a doctor may recommend an amount beyond the stated limits of the law. Should this occur, the amount recommended should be clearly stated on the face of the doctors recommendation.
WHO IS PROTECTED BY THE COMPASSIONATE USE AND THE MEDICAL MARIJUANA PROGRAM ACT?
Patients with a physician’s recommendation and their primary caregivers, defined as, “The individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.” Examples: spouse or partner, professional caregiver or nurse. Caregivers may have more than one patient. However, SB 420 restricts individual caregivers to no more than one patient outside their own “city or county.” To qualify as a primary caregiver a person so designated must have established a care giving relationship with the patient at or before the time of providing medical marijuana to that patient.
As suggested by the AG guidelines, patients who come together in order to associate for the purpose of collectively or cooperatively cultivating marijuana for medical purposes may assert Health and Safety Code Section 11362.775 as defence to any criminal charges. This would presumably include any members who grow for the benefit of the members of whatever association is formed for purpose of collective or cooperative cultivation. Distribution among and between members is also protected as long as there is no diversion of medicine to those not qualified to possess it. The amount allowed to be possessed and distributed, according to the AG Guidelines, is tied to the membership numbers.
While AG Guidelines do not have the force or effect of legislative enactments, they are given great weight by courts when seeking to interpret applicable statutes.
Recent court opinions have indicated that medical marijuana patients have recourse to civil laws, as well as a criminal defence to protect their rights. Should any issue regarding your rights as a medical marijuana patient arise, you should consult with an attorney knowledgeable in the area of medical marijuana law.
© Anthony L. Curiale, Attorney at Law