1. Arraignment

Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. We advise you to show up well-dressed and early to your arraignment (ideally a half-hour before), and to make contact with the Public Defender on duty who will likely appear in the front of the courtroom addressing the audience. Please be aware that Public Defenders have many cases, so be polite. Keep in Mind: This Public Defender on duty will only represent you at this appearance, and you will likely receive a different Public Defender for the duration of your case after pleading Not Guilty if you qualify under your county's standards.

Please bring with you two (2) copies of the following to give to the Public Defender on duty:

• your recommendation (and any other relevant recommendations for collective situations); also, bring the original recommendation for verification purposes, just in case.


• your State identification card, if you have one (See this list of counties participating in the State id card program)


• People v. Wright, 40 Cal. 4th 81 (2006) , a recent California Supreme Court decision that reiterates the right of a qualified patient to possess, cultivate or transport at least 8 oz. of medical marijuana and 6 mature or 12 immature plants and to assert the protections of the Compassionate Use Act and S.B. 420 as an affirmative defense to related charges.

Give the Public Defender on duty these documents, note the quantities involved in your case, and explain that, as a CA qualified patient with less medical marijuana than the minimum allowed under the guidelines, you were simply exercising your rights under the law, and have done nothing illegal. Then, ask the Public Defender to bring your documentation to the District Attorney (DA) on duty before your arraignment, and attempt to explain your situation in an effort to get the DA to dismiss the case without even having to plead.

Sometimes, this will work, and the DA will decline to pursue charges. However, often, because of a DA or a judge who refuses to recognize settled law, the case will continue. If so, you will be arraigned, and, when standing in front of the judge, you are likely advised to plead Not Guilty, as you will not waive any of your rights, and can always choose to accept a deal and plead Guilty later in the process. At this point (or soon after) you are likely to be assigned a Public Defender to represent you for the duration of the case.

2. Motions Hearings, Pre-trial Hearing

After your Arraignment, your Public Defender will end up representing you at several hearings at which she/he can argue motions, and set the parameters for trial.

• You should ask your Public Defender to raise the medical marijuana defense during these hearings by making a Motion to Set Aside the Indictment or Information under Penal Code § 995, otherwise known as a "Section 995 Motion to Dismiss" or a "Mower Motion". In order to get your case dismissed using a Mower Motion, named after the California Supreme Court's decision in People v. Mower, your Public Defender must show that you, a qualified patient or primary caregiver, were indicted "without reasonable or probable cause" to believe that you were guilty of the unlawful possession or cultivation of marijuana. Simply put, your Public Defender should present evidence of your status as a qualified patient or primary caregiver, such as your recommendation or State identification card.


• Here are sample Mower motions (Motion_to_dismiss_Margolin.pdf, Motion_to_dismiss_Figueroa.pdf) that you can bring your Public Defender, if she/he needs a model off of which to work. Additionally, you can bring a copy of People v. Wright.


• If your Public Defender is being unhelpful, or if for some reason you end up representing yourself (working "pro se"), you should know that you can make an "informal request" to dismiss the complaint "in furtherance of justice" under Cal Penal Code § 1385. See People v. Konow 32 Cal.4th 995, 1022 (2004). To do so, simply present the previously discussed evidence that you are a qualified patient or caregiver.


• Attorneys looking for more information, please see Pretrial Proceedings of "How to Defend a Medical Marijuana Case".

3. Trial

Most cases of patients charged with crimes in California are dismissed long before the trial stage, but if you are dealing with a particularly stubborn judge or DA, or there are other complicating factors, feel free to email ASA's Legal Coordinator and include what steps your Public Defender has taken so far, and when the trial is set to start. If you are particularly concerned with the knowledge or the performance of your Public Defender, one of the services that we offer is to have our Chief Counsel reach out to your Public Defender to confer on trial strategy and general medical marijuana law. If this is something you might be interested in, please also include the name and number of your Public Defender in your email to the Legal Coordinator, realizing that we do not have the resources to respond to every request.

Additionally, you should also provide your Public Defender with a copy of "Defense at Trial of How to Defend a Medical Marijuana Case".

1. Arraignment

At arraignment, you should follow the relevant previous instructions, except that you should also inform the Public Defender on duty that your doctor had affirmatively allowed you to use more medical marijuana than the guidelines suggest, if indeed such an understanding existed. This allowance can be either oral or a written document.

Note: Because higher plant numbers/quantities are involved, the DA and the judge are less likely to agree to dismiss the case in its early stages.

2. Motions Hearings, Pretrial Hearing

At the motions and pretrial hearings you should follow all of the previous instructions, while adding these particular bits of information to your motion to strengthen it:

• If the DA is charging you with felony possession with intent to sell, and has so-called "physical evidence" of that intent, such as scales or "pay-owe sheets", be prepared to explain how these seized items were actually used for legitimate enterprise.


• If you believe that the DA is wrongly calculating how much processed medical marijuana (bud) you have, please note that "only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana" under S.B. 420 (Cal. Health & Safety Code § 11362.77(d) ).


• If your doctor has given you permission to use more medical marijuana than is prescribed by your local guidelines, especially because you cook with your medical marijuana, it is important to note this in your motion. According to SB 420 (and an accompanying letter clarifying legislative intent), the figures named in the guidelines represent floors, rather than ceilings, and patients may possess more medical marijuana with permission from their doctors. Cal. Health and Safety Code § 11362.77. People v. Wright, 40 Cal. 4th 81 (2006).

The best evidence of this permission is when the doctor has written a note to this effect directly on your recommendation, but sometimes a doctor will give permission orally, without a written record. In such cases, it is helpful to ask the doctor if he/she would be willing to testify to such permission at one of your hearings.

• Finally, if you are collectively cultivating/possessing as a group of patients, it is important to provide all of the relevant recommendations in this motion. However, note that you should always receive express permission to do this from the other patients and you should inform them that all patients claiming to be part of a collective should be aware that they are possibly opening themselves up to similar charges by including themselves in your legal action.

3. Trial

If it looks like the case might go to trial, email ASA's Legal Coordinator, and include what steps your Public Defender has taken so far, and when the trial is set to start. If you are particularly concerned with the knowledge or the performance of your Public Defender, one of the services that we offer is to have our Chief Counsel reach out to your Public Defender to confer on trial strategy and general medical marijuana law. If this is something you might be interested in, please also include the name and number of your Public Defender in your email to the Legal Coordinator, realizing that we do not have the resources to respond to every request.

Additionally, you should also provide your Public Defender with a copy of "Defense at Trial of How to Defend a Medical Marijuana Case" and you should think about whether securing an expert witness to testify about plant numbers and personal use versus sales would be appropriate in your situation. Email the Legal Coordinator for information regarding expert witnesses.

Simply follow the relevant instructions in I.A. (for ≤ 8 oz. of hash) or in I.B. (for > 8 oz. of hash) with one small change. In addition to the other documentation that you present, also present Attorney General Opinion 03-411 which states that the Compassionate Use Act also exempts the use of concentrated cannabis, frequently referred to as "hash", from criminal sanctions.

If so, follow the relevant instructions in I.A. for the Cal. Health & Safety Code § 11360 transportation charge, and note to your Public Defender that while this crime is not one of the listed crimes that patients are specifically exempted from in S.B. 420, its omission was clearly not deliberate, as it would be illogical to exempt patients from felony transportation (Cal. Health & Safety Code § 11360), a much more frequently charged offense, and to refuse to exempt patients from a Vehicle Code infraction. Hence, the language in People v. Wright that affirmatively allows transportation should also be appropriate to use in this situation.

A recent trend in law enforcement has been for police to stop drivers, find marijuana and, after realizing that possession/transportation charges will be futile, the officer will often charge patients with DUI as a last resort, even when the patient has not medicated for a long time. These are much more complicated cases, and require more individual attention. If you have been involved in one of these situations, please email ASA's Legal Coordinator and include as many details about the interaction as possible, including:

• any statements made to the officer about when you last medicated
• the location of any medicine in the car
• specific recollection of your performance on the Field Sobriety Tests
• any details regarding any blood or urine tests performed
• anything else that the officer might bring up to suggest impairment on your part

Remember: the burden of proof will be on the officer to prove that you were impaired.

Additionally, you should give this report on Science-Based Per Se Limits for Driving under the Influence-Marijuana to your Public Defender or private DUI attorney.