Instructions for arguing your Motion

Published in 2013. California-specific

At the hearing on the motion for return of property, there are several issues that are likely to arise. This provides instruction on how to respond to most of them. The legal issues discussed in parts three and four of this outline are most likely to be raised in the prosecution’s opposition to the motion, which will be filed and served on you approximately one-week before the hearing. It is not necessary to respond, but ASA will do its best to assist you drafting a reply, so the legal issues will be addressed before the hearing.  Make sure you print a copy of City of Garden Grove v. Superior Court (Kha) (found on the Return of Property page) and bring it to your hearing to present to the judge.

1. Establishing That You Are A Qualified Patient

The most important aspect of the hearing is establishing that your cultivation and/or possession of marijuana was legal under California law, or, in legal terms, proving that there is no probable cause to believe that a crime was committed. This will require that you establish that you are qualified medical marijuana patient, which means that you must explain all of the marijuana seized was to be used by you to treat a medical condition on the advice or recommendation of a physician. For this reason, ASA strongly recommends that you attach a copy of the doctor’s recommendation to the motion for return of property as an exhibit. It would also be helpful, but not necessary, for you to obtain a brief letter from your doctor stating simply that he recommended marijuana to you to treat a medical condition in accordance with the Compassionate Use Act.

If the prosecutor objects to the doctor’s recommendation for "lack of authentication" or on "hearsay" grounds, respond that you attached the recommendation to your motion precisely so the prosecution could verify its authenticity before the hearing, if it had any doubts that it was legitimate. The prosecutor could have simply called the doctor if it truly had any doubts. If the judge does not buy this, and allows the prosecutor’s objection, request a continuance, so you can contact and, perhaps, retain an attorney.

2. Establishing That The Quantity You Possessed Was Reasonably Related To Your Medical Needs

In addition to being a qualified patient, you may also have to establish that the quantity of marijuana seized was reasonably related to your current medical needs. To this end, you should be prepared to explain to the judge how much marijuana you use daily and in what form (edibles require approximately three to five times more marijuana for effect than when it’s inhaled). You should also explain how many grow cycles you have per year -- and make sure the numbers add up.  If you have an exemption to possess and cultivate more than your local guidelines, present copies of the exemption to the judge, and consider having your doctor authenticate it before your hearing.

If charges were filed against you and were later dismissed, you should mention this fact to the judge and suggest that this establishes your innocence. Be prepared to cite the exact dates, which you may obtain before the hearing from a friendly clerk using your case number.

If no charges were filed, you should mention this fact to the judge as well, along with the date of seizure. If many months have passed since the date of seizure, it suggests that the prosecutor does not believe that there is probable cause to arraign and prosecute you. However, be very careful about making this argument if there is a significant quantity of marijuana or if other questionable facts exist, as it may incite the prosecutor to file charges.

3. Responding To An Argument That Return Of Marijuana Violates Federal Law

The prosecution may argue in its opposition brief that an order returning marijuana violates federal law. If this is the case, an ASA staff member will do their best to help you respond to this argument in a reply brief, so you can simply state that this issue was addressed in your reply brief if it arises again at the hearing. You may also wish to cite the statute and case described in the last sentence of the paragraph that follows.

If the issue arises for the first time at the hearing, state that you were not prepared to address it, since it was not raised in the prosecution’s opposition brief, and request a continuance to consult an attorney. If you are not allowed a continuance or, even if you are, it is advisable to mention that an attorney has advised you that the return of medical marijuana to a qualified patient is not illegal under Title 21, United States Code, Section 885, subsection d, as this statute was interpreted in State versus Kama, Oregon Court of Appeals -- the cite, which you should read to the judge as "the citation" is "volume 29, Pacific Reporter Third, page 866, year 2002."

4. Responding To An Argument That The Marijuana Has Been Destroyed Or Turned Over To The DEA

This is also an issue that the prosecution may raise in an opposition brief and ASA will attempt to assist you in responding to it ahead of time. Unless there was a court order authorizing this activity (a "turnover" order), the police have essentially stolen the property from the court, as seized property is the possession of the court, not the police. If the prosecution claims that the property has either been destroyed or transferred to the DEA, request that the court issue the order for return of property and then request that the hearing be continued to a later date, so you can consult with and, perhaps, obtain an attorney. [ASA is very interested in pursuing such cases.]

5. Setting Up A Possible Appeal

If the judge seems likely to rule against you, do your best to ascertain the precise reasons for his order. If he states as the sole basis for his decision that a return order violates federal law or that the marijuana no longer exists, ASA is very interested in pursuing such cases. Take good notes immediately after the hearing, or have someone take good notes for you. Report the results to ASA as soon as possible, as there are short timelines to seek reconsideration or an appeal.

In the great majority of cases, the judge will treat you with courtesy and respect, as the law requires judges to do this for persons representing themselves. Always remember that you are merely asking for what the law expressly provides, and are simply trying to rectify the police’s wrongful seizure of your medicine. Most judges will recognize this. Whether successful or not, your filing of the motion for return of property will assist medical marijuana patients throughout the state.

If an issue arises which is not discussed in this outline, or you otherwise feel unable to respond to an issue raised by the judge, request a continuance of the hearing, so that you can discuss the matter with an attorney and, if possible retain an attorney to represent you at the next hearing. Call Americans for Safe Access (ASA) after the hearing at (510) 251-1856 to discuss your options at that point. Although ASA cannot provide attorneys in all cases, we will provide direct legal representation in some cases and will seek to assist you on the legal issues raised on a case-by-case basis.