Medical Marijuana Law

In 1996, California voters passed Proposition 215, a landmark initiative allowing use, possession and cultivation of marijuana for personal medical use. The Proposition was enacted into law with the legislative passage of The Compassionate Use Act, amended in 2005 by The Medical Marijuana Program Act, commonly known as the Senate Bill or SB420, as well as subsequent cases.

The California medical marijuana laws do not make possession of marijuana legal for everyone. Only "qualified patients" who possess a physician's recommendation or approval for personal medical use of marijuana, "primary caregivers" and, under certain circumstances, cooperatives and collectives who engage in cultivation and distribution of marijuana for their member patients and caregivers, are entitled to legal protection. It is important to note that even possession or cultivation of marijuana in California is still illegal unless a person can show and prove he or she belongs to one of the three exempted categories. The exemptions are strictly limited to medical use; the law does not allow for use of marijuana which results in conduct endangering others, use for non-medical purposes or sales of marijuana for profit.

Unfortunately, as they have been interpreted by courts and enforced by law enforcement agencies today, medical marijuana laws do not offer patients and primary caregivers full legal protection they deserve. Arrests and prosecution of people who have obtained legal authorization to possess and use medical marijuana have not been prohibited or stopped. The police continue to routinely disregard patients' doctor recommendation letters in order to arrest and confiscate the medicine from the patients. Although some progress in this area has been made by the creation of the Health Department I.D. program in various counties, it is still disappointing to find that over a decade following the passage of Proposition 215, not even most legitimate and seriously ill patients, enjoy full protection under the presently constituted California state law. Consequently, our law firm advises everyone to use all possible precautions when using or possessing marijuana for medical purposes.

Persons Protected Under California Medical Marijuana Laws.

Qualified Patients. Proposition 215 and the Compassionate Use Act protects "qualified patients" who have obtained a recommendation or approval from a licensed physician to use marijuana for medical purposes in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Primary Caregivers. A primary caregiver is a person designated by a qualified patient who has consistently assumed responsibility for the housing or health or safety of the patient. SB 420 allows primary caregivers to receive compensation from a qualified patient for actual expenses incurred, including reasonable compensation for services provided to enable the patient to use marijuana or for payment of out-of-pocket expenses. A primary caregiver can be an owner or operator or a designated employee of a health clinic, hospice, home health agency or some other kind of health facility. It is not entirely clear whether organizations can be primary caregivers. Arguably, cooperatives and collectives authorized with the passage of SB 420 could qualify as caregivers. Generally, the caregiver must be at least 18 years old.

The number of patients the primary caregiver can care and provide medical marijuana for is not limited, if all patients reside in the same city or county as the caregiver. The caregiver is limited to caring for only one patient if that patient resides in a different county than the caregiver.

Presently, there is a significant level of uncertainty as to who can qualify as a primary caregiver. Our view is that someone who has only sporadically provided marijuana without fulfilling any other role in the life of a patient is not likely to qualify as caregiver under the law. For one, the courts have expressed the view for quite some time now that only someone who has provided for the housing, health or safety of the patient on a consistent basis can be considered a caregiver. In addition, we expect that in a case currently pending before the California Supreme Court (People v. Mentch) the Court will impose stringent requirements regarding who can qualify under the law and will require that in addition to providing medicine a caregiver must assist his or her patients in other matters affecting personal health and well being. This assistance could include advising on strains, helping patients shop or get to health care appointments, providing personal care for home-bound patients, assisting with finding and applying for housing, gardening, pet care, household chores and providing other typical, attendant-style care.

Patient Collectives and Cooperatives. There is a significant level of uncertainty regarding what a collective or cooperative is under the current law. We recommend you contact our office, if you are interested in starting a medical marijuana collective or dispensary.

Amounts of Marijuana Which Can Be Possessed For Medical Use.

There are no set limits as to the amount of cannabis a qualified patient or primary caregiver can cultivate or possess. However, we do not recommend to anyone to treat this fact as green light to possess or cultivate high quantities of marijuana. The prevailing legal standard for possession or cultivation is reasonable personal medical use. While a skilled and knowledgeable attorney can often convince the court or the jury that even several hundred marijuana plants can constitute quantity consistent with reasonable personal medical use, the chances of prosecution and cultivation increase significantly with the number of plants grown or weight of dry marijuana possessed. Possession of greater amounts will be presumptively deemed illegal and used as basis for prosecution for more serious felonies such as possession with intent to sell.

SB 420 set the presumptive legal limits for personal medical use of marijuana at 6 mature or 12 immature plants and 8 ounces of dried, processed marijuana (buds). Under SB 420 these quantities can be exceeded if this quantity does not meet the patient's medical needs and a physician recommends or approves a higher amount.

We recommend that patients do not exceed the SB420 limitations even if their doctor recommendations provide for specific exemptions allowing possession or cultivation of greater amounts. Given the fact that law enforcement agencies are often familiar with the SB 420 limits, staying at or below them will significantly decrease likelihood of arrest, confiscation of medicine and prosecution.

Concentrated Cannabis (Hashish).

While not specifically mentioned in any statute, possession of concentrated cannabis or hashish is protected under medical marijuana laws.

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