Attorney and Client Guide to Medical Marijuana

In 1996, California voters approved Proposition 215, the Compassionate Use Act (CUA), allowing medical marijuana patients and their caregivers the right to cultivate and possess cannabis for medical use.

Unfortunately, interpreting Health & Safety Code provisions that set the CUA into law has proven to be both extremely complicated and constantly changing.

Issues such as identifying patients and their caregivers, cultivating medical marijuana, and returning property seized by law enforcement officials are continually being refined by case laws as they work their way through our legal system.

To further complicate matters, the federal government still doesn’t recognize the difference between medical and recreational use of marijuana, and, even within the state, regulations can vary widely between cities, counties, and multi-jurisdictional agencies.

So, where does that leave law-abiding Californians who have need of medical marijuana?

Here are a few of the things we do know:

  • Patients and their caregivers have the right to possess or grow an amount of cannabis consistent with the patient’s medical needs, including treatment of cancer, anorexia, AIDS, chronic pain, glaucoma, or any other condition for which marijuana provides relief. (H&S Code 11362.5)

  • A few years ago a law was passed by the legislature, State Bill 420, also called the Medical Marijuana Program. That law Health and Safety Code Section 11362.77, created limits of twelve immature plants, six mature plants and 8 oz. of dried flowers. Patients and caregivers were limited to growing and possessing those amounts. However, those limits in that law, were declared illegal and unconstitutional in the Kelly Case by the California Supreme Court. The court found those limits to violate the Compassionate Use Act: also known as Proposition 215.  That Proposition passed by the voters, became a part of our constitution and it has no limits to the amounts that patients and caregivers can grow for their own personal medicinal use.

  • Currently possession of less than an ounce is a misdemeanor, and , with proper identification, can be handled with a citation, similar to a traffic ticket with a maximun penalty of $100, pulse court assessments( which can easily triple the cost). No jail sentence or probation can be imposed.  Persons under the age of 21, however, will lose their driver's license for a year, if convicted.

  • In November, marijuana will be on the ballots to be legally sold and taxed. Passage of the measure would make California the first U.S. state to legalize marijuana and the forefront of a campaign to nationally legalize the plant.  The legalization of marijuana seems to have wide support in California, with about 56 percent of Californians surveyed in April 2009 Filed Poll saying they favored making marijuana legal and taxing the sales proceeds.  In October 2009, Gallup found 44 percent of Americans favored legalization. many supporters believe the legalization of marijuana could help California in a economically turbulent time, but many outspoken Californians still oppose the measure. If the law does not pass there will be a need for refining the medical marijuana laws in the state.

  • Once a patient has a doctor’s approval or recommendation, it does not expire, even if there is an expiration date. (PEOPLE V. WINDUS [2008] 165 Cal. App. 4th 634)
  • When a felony defendant proves he or she is a qualified medical marijuana patient, the case should be dismissed pre-trial. (PEOPLE V. MOWER [2002] 28 Cal. 4th 457)
  • Persons who have had their medical marijuana seized by law enforcement officials can get their medical marijuana returned to them by providing a verified statement from their doctor. (THE CITY OF GARDEN GROVE V. THE SUPERIOR CT., FELEX KHA [2007] 157 Cal. App. 4th 355)
  • Transportation in your vehicle of a reasonable amount of medical marijuana is permitted. (PEOPLE V. WRIGHT [2006] 40 Cal. 4th 81)

It’s important to remember that despite the passage of the CUA, it’s illegal to knowingly have marijuana in your possession unless legally authorized for medicinal purposes.

  • Possession of less than an ounce is a misdemeanor, and, with proper identification, can be handled with a citation, similar to a traffic ticket. The maximum penalty is a fine of $100, plus court assessments (which can easily triple the cost). No jail sentence or probation can be imposed. Persons under the age of 21, however, will lose their driver’s license for a year, if convicted.
  • Possession of more than an ounce of marijuana is still a misdemeanor, but can result in a fine of up to $500 and a maximum sentence of up to six months in the county jail. (First-time offenders, however, almost never go to jail. Probation is usually granted on condition of a small fine or community service.)
  • Possession of concentrated cannabis (hashish) can be treated as either a misdemeanor or a felony, with possible sentencing of up to three years in prison.
  • Possession of any amount of marijuana with the intent to sell is a serious charge with prison sentences of up to three years and fines of up to $10,000.

In short, it’s to your advantage to avoid problems with the law and, when dealing with medical marijuana issues, make sure you document your efforts to follow the rules.

Finally, use common sense at all times: Never drive under the influence of marijuana; don’t cultivate more than what you need; respect your neighbors; never physically interfere with a law officer, and always remember that even legal marijuana does not mix well with alcohol or firearms.

I recommend you send me a copy of your medical marijuana prescription, along with your name and address, for safekeeping.

Remember, if you do run into trouble with law enforcement officials, it’s best not to talk with them, if your attorney’s not present. Just say these words: “I’m going to remain silent. I want a lawyer.”

Medical Marijuana Victories by Berg & Associates:

  • In People v. Levin, our client was arrested and charged with growing marijuana for sale. He had 40 seedlings in a tiny greenhouse. The defendant had fallen from a roof years before and broken his back, leaving him bedridden. After several surgeries, his doctor prescribed marijuana. This enabled him to discontinue other pain killers and got him on his feet, leading a fulfilling life as a father and husband. The prosecutor claimed Levin would eventually have more marijuana than he could use; however, Berg & Associates produced a medical marijuana expert who convinced the jury to acquit the defendant of all charges.
  • In People v. Lane, our client was also accused of growing marijuana for sale. He was involved in an association with 35 other patients to grow marijuana at his home. Berg & Associates convinced the court to suppress evidence of several hundred pounds of marijuana that police had seized and destroyed in violation of Health and Safety Code Section 11479. It is extremely unusual that evidence of such a large amount of marijuana would not be presented to the jurors. Our client was eventually found not guilty.