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 $509.00 and consists of intake and exit interviews and 10 two hour classes spread over three months. The focus is "drug abuse education and self awareness." After completing 12 weeks of counseling and remaining free of criminal problems for 18 months the charges are dismissed. Many people however are not able to enjoy the benefits of this law because of the threshold requirements.
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:
(For medical marijuana see below)
The District Attorney's Office decides how many plants indicate cultivation for personal use. In recent years, more than nine plants has made it difficult to argue successfully for drug diversion.
Obviously other factors will influence a DA considering whether to offer diversion:
Proposition 125 "Compassionate Use Act"
SB 420 Medical Marijuana Program
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, and click here for Health and Safety Code section 11362.7, which in January 2004, clarified many of the Compassionate Use Act laws.
All California counties are now required to issue identification cards to residents with medical marijuana recommendations. 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.
Among the law's important points: 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 parolees, defendants and probationers to retain full access to medical marijuana.
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).
If you are arrested and your medicine confiscated: you may be able to get it returned. I have, as of this writing (February 2008) recovered nearly 20 pounds of medical marijuana for clients over the last five years).
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! You may not be protected by these laws if you get the recommendation after an arrest. There are more and more doctors 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. 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.)
I have been contacted by many patients and caregivers wanting to educate themselves about their rights under the Compassionate Use Act. My advice always includes the following:
Finally, everyone needs to know 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 illegal. 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 2008) operated with the city's blessing for more than two 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.
I have handled dozens of medical marijuana cases; had many cases dismissed and won acquittals for many clients; I have represented both of the authorized medical marijuana dispensaries; I 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: but 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 almost ten 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 twenty 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 34 WAMM members have died.
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, Drug Policy Alliance attorneys and the San Francisco Law Offices of Bingham and McCutcheon. Professor Uelmen and I represent Santa Cruz County and with the other attorneys, WAMM.
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 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. They will have to rely on black market transactions to secure their medicine. Outrageous of course.
WAMM's case continues with what we believe to be our stronger argument: that patient's have a constitutional right under the Fifth Amendment's Due Process Clause to reduce their pain and suffering using medical marijuana under our state's laws and with their doctor's recommendation.
Gannett News Service published results of a survey not too long ago. From 1985 to 1993, in 100 cases in which law enforcement agencies lost more than $100,000 in police brutality lawsuits only eight of the 185 officers named in the lawsuits were disiplined. Of the remaining, 17 were promoted.
Currently (January 2000) Los Angeles is reviewing 3000 convictions in the wake of the so-called Ramparts Police Scandal. (Read the LA Times article)
Santa Cruz police are like most law enforcement groups - in fact like any group - there are great individuals and lousy ones. Personally, I would like to see our cops paid more - attract and keep the best and let the others go.
Santa Cruz County law enforcement is better than most, but that is because we as a community do care and are demanding. It is important to remember that even a good cop can "blow it." Because of the enormous power we give these people, it makes sense to hold them to high standards of conduct.
Many reasonable people have concluded that the best response to police abuse is to sue them. It is often hard to get an attorney to be interested in a case. This can be for a lot of reasons. The cases take a lot of time and money and the amount of recovery may be small. One remedy open to people who cannot get an attorney's help is filing in Small Claims court. There the officer and his or her agency can be sued for up to $5,000.00.
It is essential to keep in mind that a Claim must be filed with the governmental agency for whom the officer works within six months of the incident. For example, if it is a Sheriff deputy, the claim must be filed with the County within six months; a city cop - with that city; a CHP - with the state.
Assuming the claim is denied (certainly the case 99% of the time) then a lawsuit must be filed within one year of the incident. That rule is absolute also.