People v. Jones, 112 Cal.App.4th 341 (Sept. 30, 2003)

This case clarified what evidence of a physician’s “approval” for medical use of marijuana was required in order to raise the compassionate use defense under California’s Compassionate Use Act of 1996. The court held that a defendant’s own testimony that his doctor told him that use of marijuana for migraine headaches “might help, go ahead” constituted sufficient evidence of approval authorized under the statute.

The defendant faced cultivation charges and attempted to assert the compassionate use defense claiming his physician gave him oral approval for use of medical marijuana. The trial court ruled that the evidence of approval produced by the defendant was insufficient to raise the defense when the doctor himself did not admit to having approved of defendant’s medical marijuana use.  Defendant appealed following his plea and conviction. The court of appeals agreed with the defendant.

The court held that the defendant did not have the burden of persuading the jury by preponderance of evidence that he had a physician’s approval for use of medical marijuana. He needed only to raise reasonable doubt as to whether he had such approval. Consequently, the defendant’s own testimony that the doctor said that marijuana “might help, go ahead” was enough to allow the defendant to present the medical marijuana defense to the jury.

The court articulated the difference between a physician’s “approval” and “recommendation,” both of which are authorized under the California medical marijuana laws. According to the court, a physician gives his or her “approval” of a patient’s marijuana use within the meaning of the Compassionate Use Act, if the physician expresses to the patient a favorable opinion of marijuana use for the treatment of the patient’s illness, after the patient has raised the issue of marijuana use. On the other hand, a physician gives a “recommendation” when it was the physician who has raised the issue and presented it to the patient as a treatment that would benefit the patient’s health by providing relief from an illness.