Medical Marijuana Laws
CA Health and Safety Code §11362.5 etc.
Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA)
SB420 protections Medical Marijuana Laws regarding collectives will sunset January 9, 2019. At which time, it will be replaced by MAUCRSA and Prop 64 which authorizes marijuana to be provided to patients and others for profit; subject to licensing, taxation and robust regulation.
Prop 215 (Compassionate Use Act of 1996) remains the law, which allows patients, and their caregivers to grow, posses, and transport marijuana based on their current medical needs (see People V. Kelly) (Also see city and county regulation on permittable growing See Kirby v. County of Fresno). Any licensed physician (M.S., D.O.) may orally, or in writing, approve or recommend the use of marijuana for the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, and any other condition or illness for which marijuana provides relief.
Note from Bruce: Understanding medical marijuana laws are often confusing. This is partially due to the fact that the courts of appeals have not yet had the opportunity to rule on their interpretation in all circumstances. Many of the most relevant appellate “Landmark Cases” regarding marijuana are included here in my guide on pages 18-21.
Note from Bruce: A doctor’s opinion regarding a patient’s medicinal needs, along with a court qualified cannabis expert, can be the most important testimony for the defense. Patients and caregivers should have a discussion with their doctors in order to establish the doctor’s commitment to testify on their behalf, in the event that the patient faces prosecution.
Note from Bruce: Transportation by the patients of marijuana for their current medical needs is also lawful, but it is not lawful to store marijuana in the vehicle (People v. Wayman (2010) [189 Cal. App. 4th 215] (Page 18))
Medical Marijuana Program Act (Senate Bill 420)
(These Patient Collective Laws EXPIRE January 9, 2019)
Health and Safety Code §11362.7-11362.85
This act protects patients from arrest and seizure for marijuana/cannabis amounting to 8 ounces of dried flowers and 6 mature or 12 immature plants. However, a patient’s doctor may recommend or approve excess amounts that the patient requires for his/her medical needs or if the city or county allows greater amounts. A doctor’s letter alone does not sustain the burden of proof without the doctor’s testimony that is accepted by the court or jury, that the amounts were necessary for current need.
The act provides that a physician (M.D. or O.D.) may recommend or approve marijuana use if he/she has conducted a medical examination, taken responsibility for an aspect of the medical care, and has concluded that the patient has a serious medical condition requiring the medical use of marijuana [H&S Code §11362.7].
In order to give law enforcement some much-needed guidance on the amount of marijuana that is presumptively legal and to provide protections to qualified patients against unnecessary arrest, confiscation and prosecution, the California Legislature enacted Senate Bill 420. Senate Bill 420 provides legal defenses for patients; it includes the formation of collectives and co operatives used to cultivate and provide marijuana to their members. Senate Bill 420 also provides patient protections from arrests and seizures.
This act greatly expanded medical laws by authorizing patient’s collectives and cooperatives Please see page 22 to learn more about Health and Safety Code §11362.775. See above regarding the sunset of these laws in 2019.
Note from Bruce: The Compassionate Use Act (Prop 215), passed in 1996, protects qualified patients from conviction only, not from arrest, seizure or prosecution. Senate Bill 420 additionally provides protection from arrest, seizure, prosecution and conviction.
The limits are set to 8 ounces of mature marijuana (flower/buds) and 6 live plants (flowering) or 12 immature plants in order to gain protections from this legislation. Doctors will usually provide a letter confirming that their patient’s use of marijuana has been recommended and approved.
Health and Safety Code §11362.77 states that only dry processed flowers (buds) are to be considered when evaluating the permissible amounts; leaves and stalks are not to be considered.
The Supreme Court of California held in January 2010 that the limits set in Senate Bill 420 are not applicable in the prosecution of a patient. Patients need only to raise a reasonable doubt in court that the amounts confiscated were consistent with the patient’s current medical needs, otherwise it would violate the legal defenses established by initiative under Prop 215 (CUA) (People v. Kelly (2010) (47 Cal. 4th 1008)).
Under current law, the County of Health Department ID Program provides government approved Patient Identification Cards. The program identifies patients and their primary caregivers. Note that a county issued ID card is not required for court proceedings or otherwise.
TO OBTAIN A COUNTY HEALTH ID PROGRAM CALL 866-621-2204 AND DIAL “0”.
POLICE OFTEN IGNORE DOCTOR’S LETTERS; HOWEVER, THEY CURRENTLY MUST RECOGNIZE COUNTY ISSUED CARDS. Unless they have reason to believe they are forged. Also the records must be subpoenaed to the court from the custodian of doctor’s records. Police, judges or jurors, and prosecutors do not have to accept a doctor’s letter of recommendation as proof of the patient’s legitimacy. The police often ignore a physician’s recommendation letter by claiming that they cannot determine if the document is legitimate or forged; however, the law mandates police to acknowledge County Health Department ID Cards. Patients are strongly urged to obtain a County Issued ID Card for the best protection against arrest and criminal liability (even in city or county land use marijuana cultivation violations; see Kirby V. Fresno Ct. No. 14CECG00551) and seizures. SB 420 states that “the department shall establish and maintain a 24 hour, toll free telephone number that will enable law enforcement officers to have immediate access to any information necessary to verify the validity of an identification card issued by the department, until a cost effective Internet based system can be developed for this purpose.” Current makes it mandatory for law enforcement to comply; see Health and Safety Code §11362.78.
THE ID SYSTEM IS ALSO DESIGNED WITH THE SAFEGUARD NEEDED TO PROTECT PATIENT PRIVACY. SB 420 criminalize confidentiality breaches or “information provided to, or contained in the records of the department or of a county health department of the county’s designee pertaining to an identification card program” [H&S Code §11362.81(d)]. This means that it is illegal to report confidential information about medical marijuana use to outside agencies, including the Federal Government.
Note from Bruce:
Both AUMA and current law allow patients to voluntarily obtain official state medical marijuana identification cards from their county board of health. Under AUMA, patients who do obtain ID cards are exempted from the 7.5+% sales tax currently imposed on marijuana sales (34011(g)) effective immediately. However, beginning in Jan, 2018, all marijuana will be subject to an additional 15% excise tax plus a $9.25/ounce cultivation tax. No card is required to enjoy the standard legal protections of Prop. 215. The cost of the state patient ID card is limited to $100, or $50 for Medi-Cal patients; free of charge for indigent patients (11362.755) effective immediately; this is a reduction from the prevailing fees in most counties. Identifying information in the ID cards is made subject to the Confidentiality of Medical Information Act (11362.713).
Medical Marijuana Program (MMP), Health and Safety Code §11362.765 (Senate Bill 420): Patient’s collectives, cooperatives and dispensaries ( EXPIRES January 9, 2019 and replaced by licensing requirements of Prop 64.)
SB 420 protects qualified patients who cultivate marijuana collectively and cooperatively for medical use, solely on that basis. Patients shall not be subject to state criminal sanctions for marijuana offenses, including: For more information on Collectives, Cooperatives, and Dispensaries as well as the interpretation of these laws, see pages 18-21
Possession – Health and Safety Code §11357
Cultivation – Health and Safety Code §11358
Possession for Sale – Health and Safety Code §11359
Sale, Possession, Transportation, Maintaining a Location – Health and Safety Code §11360, 11366, etc.
Health and Safety Code §11362.79: The following are not afforded protections under SB420. A qualified patient or person with an identification card cannot engage in smoking medical marijuana under any of the following circumstances:
(a) Any place where smoking is prohibited by law
(b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use
occurs within a residence
(c) On a school bus
(d) While in a motor vehicle or boat that is being operated
Under Prop 215 (CUA), there are no prohibitions on using marijuana in a public. However, AUMA Prop 64, now prohibits marijuana usage in public places, with violations subject to a fine ranging from $100 to $250. (See Page 1 of the Guide)