Medical Marijuana Program Act, State Patient ID System, Safe Harbor, Collective Defense (repealed in MMRSA)
Safe Access Now sees many beneficial sections in the bill, including that it empowers communities to adopt scientific guidelines. Fortunately, the unrealistic floor amounts in section HS 11362.77, 6 mature plants and eight ounces of cannabis or conversion, are held by the CA Supreme Court’s Kelly Decision to be a safe harbor, not a limit on appropriate medical need. This measure also allows cities and counties to adopt their own, more generous ordinances and the Medical Marijuana Regulation and Safety Act (MMRSA) incorporates the more reasonable SAN garden guidelines of 100 square feet of canopy per patient. The SB 420 author’s letter of legislative intent supports increasing those floor amounts to make life easier for patients and caregivers.
Proposition 215 now HS11362.5, the voter approved law, did not protect people from arrest, it gives them a defense in Court. The CA Supreme Court in the Mower Decision interpreted that to mean any amount reasonably related to the patients medical need. That standard still applies and supercedes SB 420.
Continue reading MMPA, Senate Bill SB 420, California Cannabis Program
Kirby v Fresno
“We conclude that the provision in the ordinance that classifies the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation is not consistent with the obligation section 11362.71, subdivision (e) imposes on local officials not to arrest certain persons possessing or cultivating marijuana. ” 242Cal.App4th940
Continue reading Local ordinances do not pre-empt medical immunity
Maral, et al., v Live Oak
“Accordingly, we conclude the CUA and MMP do not preempt a city’s police power to prohibit the cultivation of all marijuana within that city. ” 221Cal.App4th975
Continue reading Localities can ban personal medical marijuana gardens
Gonzalez v. Raich
The text of the 2005 US Supreme Court decision reversing the 2003 Ninth Circuit Court of Appeals ruling that the Interstate Commerce Clause of the US Constitution does not reach medical marijuana when it is cultivated and used within a state where it is legal and for purposes of non-commercial personal use.
More information on the Supreme Court decision Continue reading State laws do not shield patients from federal prosecution
Conant v. Walters
(9th Cir 2002) 309 F.3d 629, cert denied Oct. 14, 2003)
Physicians have a First Amendment right to discuss medical marijuana with their patients, but not to help them obtain cannabis for medical use.
Continue reading Conant v. Walters – Doctors May Recommend Cannabis
People v. Kelly: Voters allowed patients any reasonable amount of cannabis
“Although the jury was properly instructed that defendant could possess an amount of marijuana reasonably related to his current medical needs, the prosecutor improperly argued that eight ounces—but no more—was “reasonable” in the absence of a doctor’s recommendation, which defendant did not have. This was prejudicial error.”
Continue reading California legislated possession limits unconstitutional
People v. Trippet
“The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. What precisely are the “patient’s current medical needs” must, of course, remain a factual question to be determined by the trier of fact.”
Continue reading California cannabis patients entitled to reasonable amount
Lungren v. Peron (1997): Prop 215 did not legalize sales or dispensaries.
“Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment.” … “A primary caregiver who consistently grows and supplies physician-approved or -prescribed medicinal marijuana for a section 11362.5 patient is serving a health need of the patient, and may seek reimbursement for such services.”
Who qualifies as a “caregiver”? Probably not you. Read People v Mentch (2008)
First Dist., Div. Five. Dec 12, 1997.] “Caregiver” vs, “Drug House” definitions discussion Remuneration, or payment for services discussion Continue reading California caregivers may receive compensation
People v. Mower
“We conclude that, under general principles of California law, the burden of proof as to the facts underlying the section 11362.5(d) defense may, and should, be allocated to a defendant, but the defendant should be required merely to raise a reasonable doubt as to those facts rather than to prove them by a preponderance of the evidence.” … “As we shall explain, we believe that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.”
Continue reading California prosecutors must prove nonmedical purpose