MEDICAL MARIJUANA ID CARDS
In 1996, California voters passed Proposition 215, The Compassionate Use Act. This law has created a new exemption from criminal penalties for medical use of marijuana. Patients with a doctor's recommendation to use marijuana in medical treatment have a new legal defense available to them if found possessing, growing or using marijuana. Proposition 215 "Compassionate Use Act"
Proposition 215 was the first medical marijuana law in the country and the law left many unanswered questions- like- where is a patient supposed to get their medicine if they can't grow their own? In 2004, the legislature attempted to clear up some of the "grey areas" regarding medical marijuana and passed the Medical Marijuana Program Act. SB 420 Medical Marijuana Program Act
Under these laws, if arrested on marijuana charges, patients (and caregivers) can claim entitlement to an exemption from the law. The courts call this a "limited immunity". To be found "not guilty" the patient or caregiver must raise a reasonable doubt for either the judge before trial, or a jury at trial, that their marijuana was protected by the medical marijuana laws. Because compliance is so important, take time to understand the new laws. Understand also that the laws regarding "legal" medical marijuana use are still evolving. For up to date information please visit Drug Policy Alliance - American's for Safe Access and NORML's web pages. To read the laws yourself: please click here to see Health and Safety Code section 11362.5 the code section that resulted from Proposition 215, The Compassionate Use Act. Click here for Health and Safety Code section 11362.7, which clarified some of the Compassionate Use Act laws.
While some of the medical marijuana laws have been clarified- patients need to keep in mind that medical marijuana laws contain many "grey areas". For example, while it is clear that people can possess, use, transport and grow their own medical marijuana if they have a valid recommendation- it is not clear whether dispensaries are lawful or whether people who grow for dispensaries enjoy any protection under the law. This, of course is stupid. How are qualified patients supposed to get their medicine if they can't grow their own? The people who are most ill are often the folks most unable to grow their medicine. Appropriately, many cities and counties have created guidelines so dispensaries can operate and assist people. The City of Santa Cruz permits two dispensaries to operate because the owners met all of the requirements the city came up with. Meanwhile, the Sheriff of Santa Cruz County and our District Attorney, believe that dispensaries and those who provide medical marijuana to them are breaking the law. The only reason the Santa Cruz city dispensaries have not been raided by the sheriff's office is the politics of the situation: the dispensaries have (as of February, 2009) operated with the city's blessing for more than three years with no trouble for the police and a decent amount of tax money going to the city. It would be unseemly for the county to impose their interpretation of the state laws on the city- so the dispensaries continue to provide their services.
The County should follow the City's lead on this. Please let our elected officials know you support this reasonable attempt to assure patients a safe method of securing unadulterated marijuana.
CAREGIVER DEFENSE?
In November 2008, the California Supreme Court ruled in People v. Mentch that people must provide more than marijuana to qualify as caregivers. The court strictly construed the language in Prop. 215 which defines caregivers as those people who, "consistently provide housing, health or safety" to the patient.
Mr. Mentch, a Santa Cruz County resident had six patients who had designated him their caregiver. But besides providing marijuana he made only "token gestures" of caring for most of those patients and the trial court said that wasn't enough and didn't allow him to argue a medical marijuana defense. He was convicted. The Sixth District Court of appeal unanimously reversed the trial judge and said these were questions for the jury. But ultimately the Supreme Court (unanimously) reversed that court. (See what I mean about "grey areas"? Judges disagree, cities and counties disagree- What is a patient to do?)
This ruling will make it very difficult, if not impossible, for many patients to secure their marijuana without going either to the black market or the grey market dispensaries. Many people cannot grow their own plants because of their illness or living circumstances. The court, in an outrageous aside, claimed that their interpretation of the law was consistent with the wishes of the California voters who passed the initiative. Surely the voters (70 % of Santa Cruz County voters) never intended to make ill people have to struggle like this to secure their medicine.
I represented Mr. Mentch in his second case and won the return of his marijuana.
MEDICAL MARIJUANA ID CARDS
All California counties are now required to issue identification cards to residents with medical marijuana recommendations. (Most counties now provide these cards- Santa Cruz was among the first.) If a patient has a county card and has no more medical marijuana than permitted by the state guidelines, then they cannot be arrested for possession or cultivation unless the police officer has probable cause to believe the patient's card is a forgery or that the patient's recommendation was obtained through fraud.
Patients do not have to have a county card to be protected. But with the card and staying within the state guidelines, patients enjoy the added protection of this "no citation or arrest unless probable cause" rule.
Santa Cruz County's card program keeps participant's names confidential: after reviewing a patient's proof of a medical recommendation, assigning a number for the patient and creating the photo ID card, the written materials are returned to the patient- only the number is left. If an officer calls the registry after being shown the card- the health department simply acknowledges having provided the patient with the card. For more information check out the County medical marijuana site.
Note that SB 420's made important changes to the law: The minimum amount of medical marijuana a city or county must permit a patient to have in their possession is 8 ounces of "bud" (leaf isn't counted) along with six mature plants or 12 immature plants; Cities and Counties are free to implement guidelines permitting more medical marijuana to be possessed or grown by patients (see below for Santa Cruz's guidelines); A doctor may permit the patient to have more than any city, county or state guideline; A doctor's recommendation may be in writing or spoken; The law enables is designed to allow parolees, defendants and probationers to retain full access to medical marijuana. Note that a judge has to say it is OK on the record for probationers to lawfully use their medicine.
Santa Cruz County Guidelines: Some cities and counties have created more realistic guidelines. Santa Cruz County has been a leader in recognizing the benefits of medical marijuana. In 2004, four doctors were asked to study the issue and they recommended the guidelines adapted here. Our county ordinance allows up to three pounds of medical marijuana per patient along with 100 square feet of plant cultivation. While three pounds may sound like a lot- that works out to less than four medical marijuana cigarettes per day. For some patients that isn't enough (but again, the law permits greater amounts if recommended by the patient's doctor).
In October 2008 the California Supreme Court accepted the case of People v. Kelly. (KEEP TRACK OF THIS CASE AT CAL NORML OR AMERICANS FOR SAFE ACCESS)
Everyone should watch this case as it may eliminate the above described state and county guidelines. Mr. Kelly was convicted of possession of marijuana in a county that had not set guidelines above the state minimums. He had a doctor's recommendation but 12 ounces of marijuana on hand- four more than the state guidelines allow. The judge wouldn't allow Mr. Kelly the medical marijuana defense and the jury convicted him. On appeal, he argued that the 2004 Compassionate Use Act was unconstitutional as to it's setting up of guidelines because the legislature may not amend Prop. 215 because it was a law created through the initiative process (put on the ballot by voters and then passed during an election). The Court of Appeal agreed and reversed Mr. Kelly's conviction. Great for Mr. Kelly but the decision could end up outlawing even the generous guidelines many counties have come up with. Different local judges are interpreting the county guideline laws in different ways because of this pending case. If the California Supreme Court upholds Mr. Kelly- then the issue for patients will only be this question: is the amount of marijuana in the patient's possession at the time of the arrest consistent with the patients medical requirements? Unfortunately, the Kelly case may not be decided until 2010.
The most important thing to understand is that law enforcement will look at everything they can discover and try and figure out if you are selling your medicine. For example, they will look to see how sophisticated your grow is and what your electrical use history from PG&E has been to estimate how much you have produced. They frequently overestimate this and often are disbelieving of claims of "failed crops". They will look at your medical marijuana needs and use of the medicine (do you eat it and require more?) They will examine any banking history they can find that doesn't' show work related deposits but rather hard to explain deposits. They will of course look for the obvious trappings: pay and owe sheets (written or on a computer); weapons; large amounts of cash; busy cell phones or pagers; scales, etc.. If you have multiple recommendations or state cards displayed they will contact the other patients and ask what they have received from the grow and what they have contributed. Many times I have seen people surprised when the other patients get scared and refuse to help authenticate a grow. People get scared when confronted by law enforcement investigators. Particularly when those investigators are skeptical of medical marijuana claims.
Don't be falsely accused by not being able to substantiate your grow or amount of medicine. Ask your doctor to agree that the amount you are going to possess is appropriate. This will be the easiest and least costly way to deal with the question. If you post your state card copy and your doctor's recommendation with your plants then you will have your best chance of "proving your innocence" at the beginning of their investigation. Having said this: it is usually best to show your cards and then shut up. Be friendly but firm in not talking to the investigators. 99% of the time, answering questions makes the situation worse for the patient.
If you are arrested and your medicine confiscated: you may be able to get it returned. As of this writing (February, 2009) I have helped clients recover more than 20 pounds of medical marijuana.
HERE IS A NICE PICTURE OUTSIDE COURT WITH WAMM FOUNDER VALARIE CORRAL AND WAMM MEMBERS
FINALLY: If you use marijuana for a medical condition that could lead an MD to give you a recommendation for using medical marijuana - get the recommendation! Then get the State card. You probably will not be protected by the laws described above if you get the recommendation after an arrest. Note that there are more doctors then ever who are willing to write recommendations given the increased protection for doctors resulting from the Conant case. (In Conant, the 9th Circuit Court of Appeal held that the US Government could not punish physicians for voicing their professional opinions based on their best medical judgment. (The US Supreme Court let that decision stand) According to the Court decision, "the government is permanently enjoined from revoking a physician's DEA registration merely because the doctor recommends medical marijuana based on a sincere medical judgment and from initiating an investigation solely on the ground" that a physician recommends the use of medical marijuana for a patient.)
Santa Cruz County Sheriff's are making more marijuana raids then ever. I hope this is law enforcement's last gasp in their dying, terribly misguided war on marijuana. While their war continues- patient's must educate themselves about their rights under the Compassionate Use Act.
My advice always includes the following:
Please note that while I have handled dozens of medical marijuana cases; had many cases dismissed and won acquittals for many clients; have represented both of the authorized medical marijuana dispensaries in the City of Santa Cruz; have been qualified as an expert witness in a medical marijuana case in Santa Cruz Superior Court and I have secured the return of more than 20 lbs. of medical marijuana to clients: I do not and cannot refer people to doctors. There are many web sites with links to California doctors and dispensaries.
I have the honor of being the local attorney for the premier medical marijuana cooperative in the country: WAMM (Wo/Men's Alliance for Medical Marijuana). WAMM has operated in Santa Cruz County for over 15 years with the blessing of local law enforcement and City and County governments.
Valarie and Michael Corral are the founders of WAMM. In 1973, Valerie was in an automobile accident that left her so severely epileptic she often suffered five seizures a day. For the next two years Val's doctors had her try every known legal medication to try and control her seizures. Nothing stopped the seizures and Val's life was slipping away. Michael read that marijuana had been found helpful in stopping seizures and Val began using marijuana as an adjunct medicine. Marijuana eventually become her sole medication and Val has controlled her seizures for over thirty years.
In 1992, Val was arrested in Santa Cruz with her husband Mike for the cultivation of five marijuana plants. Val became the first defendant in our state to successfully challenge the existing marijuana laws, based on the defense of medical necessity. This victory thrust Val and Mike into the legal, political and social foreground of this health issue.
In 1995 Val and Mike started WAMM as medical marijuana collective with 250 members. As of this writing 153 members have died. But their deaths have been less painful and more dignified because their suffering was dramatically reduced with their use of medical marijuana.
In Val's capacity as director of WAMM over the last eleven years, she has testified before California State legislative committees of the Senate & the Assembly. She has received Proclamations and Resolutions from SC City and SC County and was the Santa Cruz County Women's Commission Woman of the Year in 1997. In 2003, Val was appointed by Attorney General Bill Lockyer to the Statewide Task Force on Medical Marijuana.
Drug Enforcement Raid at the WAMM garden:
On September 5, 2002, Federal Drug Enforcement Agents raided the WAMM garden, arrested Val and Mike and confiscated the collectives growing marijuana. In response to their arrest, two weeks later, the city of Santa Cruz made national headlines by allowing WAMM to distribute marijuana on the steps of city hall.
State Attorney Gen. Lockyer sent a highly critical letter to John Ashcroft and the SJ Police Chief pulled his officers off of the DEA task force in protest.
Since the DEA raid 36 WAMM members have died. HERE IS A RECENT POWERPOINT PRESENTATION WAMM HAS CREATED.
Val and Mike are involved in two lawsuits against the federal government resulting from their arrests, including a historic case in which the City and County of Santa Cruz have signed on as co-plaintiffs, acknowledging WAMM as an integral part of the Santa Cruz Health Care system.
The pro bono litigation team assembled includes myself, Santa Clara University Law School Professor Gerry Uelmen, ACLU Drug Law Reform Project, Drug Policy Alliance and the San Francisco Law Offices of Bingham and McCutcheon.
Our Federal court trial judge has been the Honorable Jeremy Fogel and in his court we obtained an injunction against further DEA raids or harassment. That injunction made the WAMM garden the country's only legal medical marijuana cooperative garden. Our litigation was essentially on hold pending the Supreme Courts ruling in Raich v. Ashcroft. The injunction lasted over 18 months and as of this writing the case continues.
The United States Supreme Court has now ruled against Angel Raich and Diane Monson. Nevertheless, California's law is not affected. The issue for the court in Raich was not whether California and the other 11 states can enact and enforce our medical marijuana laws, The issue was whether the Feds would continue to have authority to enforce Federal marijuana laws against patients and caregivers acting in compliance with state laws. The Supreme Court said they do.
Since 99% of marijuana arrests are made by state and local law enforcement officers- it will be highly unlikely that patients and caregivers will be arrested. The federal government simply doesn't have the resources to go after these folks.
The people who will have to worry most about arrest are people who run cooperatives and those who own and operate dispensaries. The people who are most sick, most unable to grow their own medicine are the ones who will suffer the most if the legitimate dispensaries are shuttered. Patients will have to rely on black market transactions to secure their medicine. Outrageous of course.
Despite the Raich case ruling, WAMM's case survives with a tenth amendment argument that the Federal Government is "commandeering" California's power to legislate regarding our citizen's health and safety. We intend to show that the Federal Government, by targeting cities and counties supportive of dispensaries and collectives are trying to force the state to withdraw our medical marijuana laws. For more on the law suit visit WAMM's web site or the ACLU's Drug Law Reform Project's webb page.
Many people can, without an attorney, avoid criminal convictions for drug offenses because of "drug diversion" or because of the passage of Proposition 36: The Substance Abuse and Crime Prevention Act of 2000. Remember though - it is always best to confer with an attorney before deciding what to do. It may be advisable to fight your case. It may be very important to choose the right option between drug diversion and Prop. 36 treatment- so confer with a knowledgeable attorney and learn about your options.
Drug diversion: For a number of years, many first time California drug offenders, have been able to avoid criminal convictions by taking advantage of the state's drug diversion laws ("Deferred Entry of Judgement").
If successfully completed, diversion leads to a dismissal of the charges. There are limitations, including: the charges cannot be for sales, possession for sale or transportation. There must be no prior drug diversion or drug offense within five years. No prior probation can have been terminated for non-compliance.
Drug diversion in Santa Cruz County costs $705.00 and consists of intake and exit interviews plus 10 two hour group classes spread over three months. The focus is "drug abuse education and self awareness." After completing the counseling and remaining free of criminal problems for 18 months the charges are dismissed.
Proposition 36: Drug laws were radically changed in California in November 2000 with the passage of The Substance Abuse and Crime Prevention Act of 2000.
The good news is that Prop. 36 requires drug treatment rather than punishment for the vast majority of people arrested for drug offenses. Obviously treatment makes sense where there is any viability and that's why 61% of the voters in the state and 70+% in Santa Cruz County voted for this revolutionary law.
What the Act Does: certain non-violent adult offenders who use or possess illegal drugs receive drug treatment in the community rather than incarceration. It was designed to:
Eligible offenders receive up to one year of drug treatment and six months of after-care. While drug use relapses are expected and lead to more treatment intervention the courts may sanction offenders who are "not amenable" to treatment. Vocational training, family counseling, literacy training, and other services may also be provided.