Marijuana: Medical to Recreational

In 1996, the Compassionate Use Act (CUA) made California the first state in the country to allow provision for the medical use of marijuana. Since its passage the courts, legislature, and medical patients have struggled to define the legal boundaries surrounding the cultivation, possession, transportation, processing, and access to medical marijuana. I have attempted to provide a brief legal summary of the history of medical marijuana laws and statutes in California. This is by no means an exhaustive manual and is not to be taken as advice on legality of past, present, or future conduct. The specific facts of each case can change it from one where a person is not even arrested by law enforcement to one where a person is convicted of a felony offense and possibly sent to state or federal prison.

COMMON LAW NECESSITY

Prior to the passage of the CUA, persons arrested and prosecuted for medicinally using medical marijuana used common law defense of Necessity. The Necessity defense as applied to marijuana crimes became somewhat obsolete, as one element that the accused had to prove to the jury is that he or she has no adequate legal alternative. Since a person can legally use marijuana with a doctor's recommendation after the passage of the CUA, most arguably do have an adequate legal alternative. Thus the applicability of such a defense became severely restricted. This is even more true as the state moves away from medicinal marijuana towards recreational use with a permitted marijuana industry.

MEDICAL MARIJUANA IN CALIFORNIA (PROPOSITION 215)

In 1996, the voters in California passed Proposition 215, The Compassionate Use Act (CUA), by a margin of 55% to 44%. The CUA provides basic protection for patients and caregivers who possess or cultivate marijuana from California laws that prohibit such conduct. It also sought to protect doctors who provided medical marijuana recommendations to patients. This was a landmark proposition that made California the first state to recognize and allow marijuana to be used by persons deemed appropriate by their treating physician even though still illegal under Federal Law.

The passage of the CUA removed marijuana from the premise that marijuana was illegal, no matter the circumstance, into a gray area of the law for the unforeseeable future. That gray area allows those the CUA sought to protect from arrest and prosecution, by law enforcement who, as a whole, were firmly against any legal avenue for the permitted use of medical marijuana. Ever since its passage, the California Supreme Court, the California Court of Appeals, the California Legislature, the State Attorney General, and new ballot propositions, have struggled to bring clarity to the CUA to enable those who sought its protection from wrongful prosecution.

The CUA left open many questions such as:

1. How much marijuana can a person cultivate or possess,
2. How strictly is a caregiver for a patient defined,
3. What marijuana derivatives are protected (hash, concentrated cannabis, oils, tinctures, butters, etc.)
4. Can a person transport their medical marijuana that falls with the CUA,
5. Can persons form collective and cooperatives to facilitate access to medical marijuana,
6. Is the CUA a prohibition on arrest/prosecution or an affirmative defense that placed the burden on the accused to prove their innocence to the judge and jury? And if the burden falls on the defense, what is the accused's burden of proof?

In 1997, the California Court of Appeals ruled the transportation of marijuana would be recognized as protected under the CUA where "if [the] quantity transported and method, time and distance of transportation are reasonably related to patient's current medical needs." (People v. Trippett)

In 1999, the California Court of Appeals ruled that the CUA does not apply where the accused gets a recommendation for the use of medical marijuana after the fact (i.e. after the alleged date the alleged crime occurred). (People v. Rigo)

In 2002, California Supreme Court ruled that the CUA is an affirmative defense and not a prohibition against arrest or prosecution. Significantly, it also reduced the level of burden on the accused from having to prove they fell within the CUA from "preponderance of the evidence" as with most defenses under the law, to only having to raise a reasonable doubt in the minds of the jurors. (People v. Mower). Although hailed as a victory for medical marijuana advocates as it lowered the burden of proof, it did not seem to provide the level of protection from arrest the CUA seemed to confer.

In 2002, the California Court of Appeals ruled that that process of chemically making any form of concentrated cannabis through chemical extraction is not covered by the CUA. Thus, using butane extraction methods to separate the TCH resin is a crime of illegally manufacturing a controlled substance regardless of whether or not a person has a recommendation to possess the end product. (People v Bergen). The Court relied upon the 1991 Attorney's General's Opinion in coming to this conclusion. That opinion did indicate that concentrated cannabis itself was covered by the CUA. Thus, water extractions methods (i.e. bubble hash) are presumably a legal method of extraction when one possessed the appropriate recommendation

In 2003, the Legislature of California attempted to add more clarity to the CUA, by passing State Senate Bill 420, The Medical Marijuana Program Act (MMPA). Among other provisions, this act sought to do the following: 1) Provided limits on how much marijuana any one person could possess or cultivate to be eligible for the protections of the CUA (6 mature or 12 immature plants and 8 oz of dried 2) Allowed physicians to recommend more marijuana than the MMPA limit, 3) Counties could pass ordinances that increase, but not decrease, the amount of marijuana a person or caregiver could possess or cultivate under the MMPA, 4) Created a system of identification cards through each county's department of health that identified a person as a medical marijuana patient (but was not required to use/cultivate marijuana), 5) Limited caregivers to one patient if the patient was not in the same county, 6) Created statutory provisions that allowed patients to collectively grow and cooperatively grow and distribute medical marijuana, and 7) Statutorily codified the holding in Trippett and allowed for the transportation of medical marijuana.

In 2003, California State Attorney General Bill Lockyer issued an opinion that concluded that concentrated cannabis or hashish, falls within the protections of the CUA. http://ag.ca.gov/opinions/pdfs/03-411.pdf

In 2003, the California Court of Appeals ruled that an "approval" (as contrasted from a "recommendation") from a caring physician could be testified to by the accused at trial. (People v. Jones)

In 2004, the newly elected Humboldt County District Attorney Paul Gallegos took office. Mr. Gallegos' suggested a patient could grow as many plants desired so long as it was confined to a 10x10 foot grow space (to limit canopy space) with no more than 1000 watts being used for indoor grows. He further suggested that a person protected by the CUA should be able to possess not more than 3 pounds processed marijuana. The County passed an ordinance allowing 99 plants per recommendation and limiting the grow space to 10x10. Canopy space was defined by square footage.

In 2004, the California Court of Appeals ruled a qualified patient does not need to prove that he or she is 'seriously ill' and that the doctor's basis for the recommendation is not on trial. (People v. Spark)

In 2005, the Appellate Court ruled that while the CUA did not provide protections for medical marijuana collective or cooperative activity, the MMPA did provide such a defense to the accused. (People v. Urziceanu).

In 2006, the California Court of Appeals ruled that a person acting as a caregiver would have to show that they consistently assumed responsibility for the housing, health, or safety of that person. In this case, the accused provided evidence that he counseled the patients as to the best strains of marijuana for their ailments. The Court held that this alone was sufficient evidence upon which the trial court should have let the jury determine if the accused was acting as a caregiver. Further, as the arrest pre-dated the effective date of the MMPA, the court ruled that the MMPA could be applied retroactively and the accused could present any defenses available under the MMPA (referring to collectives and cooperative). (People v Mentch)

In 2008, Attorney General Brown released an official opinion for the proper implementation of the CUA and MMPA. The opinion set forth guidelines that are not law but were intended to inform both medical marijuana advocates and law enforcement what should be allowed. Overall, the opinion was fair to both side of the debate, particularly since it was authored by the top enforcement official in the state of California. This opinion lent advice from California's lead law enforcement officer on how to implement both collectives & cooperatives. http://www.ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf

In 2008, the California Court of Appeals ruled that a recommendation to use medical marijuana does not expire simply because a periodic renewal date on the recommendation has passed. (People v. Windus)

In 2008, the California Court of Appeals ruled that there must be sufficient evidence that the arresting officer has expertise in differentiating citizens who possessed marijuana lawfully versus those who possessed the marijuana for sale. (People v. Chakos)

In 2010, the California Supreme Court ruled that the MMPA was unconstitutional to the extent that it impaired or restricted any benefit provided to patients and caregivers under the CUA. The Court left in place any provision of the MMPA that gave patients additional, greater or new protections than conferred by the CUA. The justification was that the legislature in California was not allowed to limit or restrict rights that were passed by the voters of California by proposition. (People v. Kelly)

The three major and/or most common impacts on the MMPA were as follows:

• The restriction on the number of plants (12 immature or 6 mature and 8 ounces) provision was no longer valid (although an accused who possessed less than those amounts could present it as a defense).
• The codification of collective and cooperative marijuana grows remained in place and,
• it codified activities like transportation of marijuana.

In 2010, Proposition 19, which sought to legalize the possession of marijuana in small amounts without the necessity of a physician's medical recommendation was defeated by the voters of California by a 53.5% to 46.5% margin. Although hailed as a loss for those who sought to legalize marijuana, Proposition 19 would have added new felonies with harsher conduct for other marijuana-related activities.

In 2012, the California Court of Appeals ruled that Medical Marijuana could be transported on behalf of a collective or cooperative even if that collective or cooperative member was not involved in the cultivation process. (People v. Colvin).

In 2012, the California Court of Appeals ruled that when presenting a medical marijuana defense for collectives and cooperatives, the defendant must present some evidence that the collective or cooperative was a not for profit entity. The testimony of one witness was sufficient enough that the court of appeals overruled the trial court ruling that more was required to present a medical marijuana collective or cooperative defense. (People v. Jackson).

In 2013, the Supreme Court of California ruled that law enforcement can seize a shipped package without a warrant due to its mobility based on smell of marijuana alone; however, smell alone cannot justify a warrantless search of opening the package to view its contents. The court noted that the prosecutor failed to raise the "plain smell" justification for the search of the package in the trial court and therefore forfeited argument on appeal. (Robey v. Superior Court)

In 2014, the California Court of Appeals ruled that collectives must be "not for profit". However, collective members can be reimbursed for costs related to the production and distribution of marijuana to collective members. Costs can include costs to produce marijuana, electrical bills, set up costs, time and energy of the persons to produce and distribute the marijuana, etc… Expert testimony from marijuana expert William Britt not allowed on costs associated with the collective as he did not have foundation about the specific collective at issue to offer such an opinion. Case contained a reiteration of the Attorney General’s Guidelines from 2008 about cooperative and collectives. (People v London)

In 2014, the California Court of Appeals ruled that a defendant does have the right to present a defense under the Compassionate Use Act even where money was exchanged for marijuana. The defendant could argue the protections of the CUA to a jury where he had set up a cooperative, got a seller's license from the State Board of Equalization, did not make a profit for the marijuana sold to the cooperative's qualified patents, and provided money to the growers for their costs. (People v Baniani)

In 2015, Senate Bill 266 has been written and revised several times and is expected to pass in the legislature sometime in 2015. This Senate Bill, mostly sponsored by politicians and law enforcement, sets up a state procedure for obtaining a permit to grow/process, transport, and/or sell marijuana. The main procedures to apply for the permits are dependent on compliance with local ordinances. (You can retain our office to aid you in the process to obtain such a permit).

In 2016, Governor Borwn signed into law several bills to allow for the legal permitted marijaun growing, transportation, and distribution of medical marijuana. Since signed, and given that each county has strong controls on how the bills and permitting will be implemented, there has been struggle to implement fully the intent of the bills.

On November 8, 2016 - Propostion 64 was overwhelmingly passed by by the people of California which has the affect of reducing Cultivation of Marijuana (HS11358), Possession of Marijuana for Sale (HS 11359), and Transportation of Marijuana (HS 11360(a)) to misdemeanor offenses. There are numerous exceptions that would casue the above offenses to remain as and be prosecuted as felony offenses. If you are over 21 years old, it is legal to possess of under one ounce of marijuana, under 8 grams of concentrated cannabis, and to grow six plants at home (no doctor's recommendation needed). It appears that medical marijuana defenses are in tact for the moment but it is anticupated that some of those defenses will be altered and watered down. . Additionally, if you were convicted of an offense that is now a misdemeanor or is not a crime at all, you can petition the court to change or remove your past conviction to reflect the current state of the law. Call today to get the process started!

In January 2019, the concept of medical marijuana given by the CUA officially came to an end as marijuana is now only legal pursuant the amounts one is legally allowed to possess by law without the need for a medical recommendation or through the State Permitting Process. One official battling similar issues to California's changing market aptly described the process as "...building the plane as we are flying it." Note that medical marijuana is still a potential defense for cases involving personal amounts (not as a collective, cooperative) or where the arrest occurred in 2018 or earlier.

FEDERAL LAW ON MARIJUANA

Nothing in the CUA, or any successive legislation or proposition in California, changes that marijuana is strictly prohibited under Federal Law. The Federal Controlled Substances Act of 1970, labeled marijuana a Schedule One controlled substance which is defined as a drug that has the following characteristics: 1) a high potential for abuse, 2) no currently accepted medical use, and 3) a lack of accepted safety for use of the drug or other substance under medical supervision.

In 2005, the US Supreme Court ruled that Federal law under the FCSA continued to pre-empt state law when it came to marijuana regardless of whether the state had passed any bill or proposition that allowed such conduct. (Gonzales v. Raich).

Enforcement of the Federal prohibition on marijuana has ebbed and flowed and does not seem to follow any rational guideline based on the statements by any of the three Presidents in office since the CUA passed in 2003 from Bill Clinton (who tried marijuana but did not inhale), to George W. Bush, to Barak Obama.

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