1. Are you a California medical marijuana patient who has been cited, arrested, taken to jail by or has had your medicine confiscated by local, county or state law enforcement?
To begin, ASA Staff would just like to say how sorry we are that you have been treated poorly by our law enforcement agencies. It is unfair that law enforcement continues to target and harass patients more than a decade after the state of CA recognized that marijuana is medicine. However, you should know that you are not alone, and patients across the state face similar challenges, and some day soon, you will be able to use your medicine without having to live in fear.
One important resource in educating yourself on your legal rights under criminal law as a medical marijuana patient in California is the Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, which were released in August 2008 and were a product of the hard work of ASA staff members. While these guidelines are not binding on patients or police, the guidelines advance the meme that medical marijuana is an accepted part of California society, encourage law enforcement to be a part of that acceptance by following certain procedures, and give patients a guide as to how the top law enforcement official in the state interprets California medical marijuana law. For more information on what the guidelines mean for collectives and cooperatives, check out ASA's report.
For more general and statutory information, see NORML's page on California's marijuana laws, California's Compassionate Use Act (Cal. Health & Safety Code § 11362.5) and S.B. 420 (Cal. Health & Safety Code § 11362.7-11362.83), the underlying legislation for this FAQ. Additionally, most of the criminal charges mentioned in this FAQ can be found in the Health and Safety Code, the Vehicle Code, or the Penal Code. Many important California cases can be found at ASA's page for Landmark Decisions
When preparing for your legal defense, in addition to printing the external documents linked within the Legal FAQ, you should also print a copy of the Legal FAQ itself, which you can do by clicking on the "Printer Safe Version" on the left side of the screen under Features. After opening that link, simply use the +- buttons open the relevant part of the FAQ that you want to print.
Please identify your legal situation from among these questions:
This FAQ applies to California medical marijuana patients with current recommendations who have been cited or arrested by the local police, county Sheriffs, a multi-agency taskforce, or the California Highway Patrol (or by a federal agency, who then turned you over to the state authorities) and who have an upcoming court date in state court.
Please choose from among the relevant charges:
Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. Most citations will give an exact day to appear, and you should do so in person. However, if the citation says "on or before" a certain date, call the relevant criminal court if you have questions about appearing on a specific day, or simply walk into court and present your citation to the court clerk to try to get on the docket that day. We advise that you 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:
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 (D.A.) on duty before your arraignment, and attempt to explain your situation in an effort to get the D.A. to dismiss the case without even having to plead.
Sometimes, this will work, and the D.A. will decline to pursue charges. However, often, because of a D.A. 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, and can always choose to accept a deal and plead Guilty later in the process. At this point (or soon after), if you qualify, you are likely to be assigned a Public Defender to represent you for the duration of the case.
Some Public Defenders will try to pressure patients into pleading Guilty and accepting a plea bargain offer. Sometimes, this is sound legal advice, while other times, this is just a reflection of the Public Defender's high workload, lack of knowledge of medical marijuana law, or bias against medical marijuana. If you were under the guidelines and had an up-to-date recommendation, and there is not evidence of any wrongdoing, and you believe you were acting under the law, you do not need to plead guilty and can assert your patient status, and take your case to trial. For more information about how to evaluate a plea bargain offer, see IV.E. of this FAQ. Hopefully, you and your knowledge of California law and strong conviction that you have not broken it will assist the Public Defender in representing you to the fullest of his or her capacity.
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.
In some cases, after you present your up-to-date recommendation to the court, the judge will refuse to find it credible and will demand that your doctor testify in order to authenticate your recommendation and prove that you are "qualified patient". A court appearance by the doctor is not actually necessary and you should not need to do this to win your case. There is case law that addresses this issue. In People v. Jones, a 2003 CA Appellate Court (3rd District) case, the court held that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical marijuana, is sufficient, without verification from the doctor, for the jury to determine the defendant's status as a medical marijuana patient.
Instead of forcing your doctor to testify, get your recommendation authenticated and present it at court. You do not even need a notary to do so. Simply get the doctor to sign a declaration of the authenticity of the recommendation as a business record. As a record kept in the normal course of business, your authenticated recommendation should be considered admissible hearsay evidence and should be admitted. The doctor should make a certain number of copies of the recommendation in an envelope, and sign the declaration and tape it to the front of the envelope. For more on the authentication procedure, see the California Evidence Code.
That being said, some judges will insist on a doctor's testimony and will ignore People v. Jones and an authenticated recommendation. For these judges, it may be helpful if the doctor does make an appearance, or at least creates a secondary affidavit that states that he or she diagnosed you and found it reasonable that marijuana could relieve the symptoms of your condition.
Also, whether it is a doctor's testimony or yours, you should also be able to refuse to disclose details of your medical records or history, as there is established caselaw protecting your medical records and the confidentiality of the doctor-patient relationship in exactly these circumstances. See Bearman v. Superior Cour of Los Angeles (2004).
Additionally, at your Preliminary Hearing or later, you may need to provide evidence to correct mistaken law enforcement regarding weight or plant numbers based on improper yield predictions, inclusion of water weight and unrooted clones (non-plants), or you may need medical testimony concerning specific amounts needed for personal use given your condition. The solution is often to get your Public Defender or private attorney to bring in an expert witness to testify. In order to apply to the court to get an expert witness, you can use a motion, found on Chris Conrad's site, called an Ex Parte Application for Appointment of Expert Witness and for Funding and Points and Authorities in Support Thereof. Here is a partial list of common medical marijuana expert witnesses:
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 D.A., or there are other complicating factors, feel free to email ASA's Legal Services 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 about 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 Services 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".
Note: See Safe Access Now's list of local guidelines. Any location not listed defaults to the state guidelines of 8 oz. or less of medical marijuana + 6 mature or 12 immature plants. In collective situations, multiply the applicable guidelines by the number of patient recommendations held
Your first court appearance will be an arraignment where the judge will ask you to plead Guilty or Not-Guilty. Most citations will give an exact day to appear, and you should do so in person. However, if the citation says "on or before" a certain date, call the relevant criminal court if you have questions about appearing on a specific day, or simply walk into court and present your citation to the court clerk to try to get on the docket that day. We advise that you 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:
Give the Public Defender on duty these documents, note the quantities involved in your case, and explain why you, as a CA qualified patient were possessing more than the guidelines suggest (personal use, exemption, collective cultivation). Then, ask the Public Defender to bring your documentation to the District Attorney (D.A.) on duty before your arraignment, and attempt to explain your situation in an effort to get the D.A. to dismiss the case without even having to plead.
Sometimes, this will work, and the D.A. will decline to pursue charges. However, often, because of a D.A. or a judge who refuses to recognize settled law, the case will continue. Because higher plant numbers/quantities are involved, the D.A. and the judge are less likely to agree to dismiss the case in its early stages. You will then be arraigned, and, when standing in front of the judge, are allowed to plead Guilty or Not-Guilty. If you plead Not Guilty, if you qualify, you are likely to be assigned a Public Defender to represent you for the duration of the case.
Some Public Defenders will try to pressure patients into pleading Guilty and accepting a plea bargain offer. Sometimes, this is sound legal advice, while other times, this is just a reflection of the Public Defender's high workload, lack of knowledge of medical marijuana law, or bias against medical marijuana. For more information about how to evaluate a plea bargain offer, see IV.E. of this FAQ. If you decide to plead Not Guilty, say the words, "I plead Not Guilty, as I am a Medical Marijuana Patient." Hopefully, you and your knowledge of California law and strong conviction that you have not broken it will assist the Public Defender in representing you to the fullest of his or her capacity.
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.
In some cases, after you present your up-to-date recommendation to the court, the judge will refuse to find it credible and will demand that your doctor testify in order to authenticate your recommendation and prove that you are "qualified patient". A court appearance by the doctor is not actually necessary and you should not need to do this to win your case. There is case law that addresses this issue. In People v. Jones, a 2003 CA Appellate Court (3rd District) case, the court held that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical marijuana, is sufficient, without verification from the doctor, for the jury to determine the defendant's status as a medical marijuana patient.
Instead of forcing your doctor to testify, get your recommendation authenticated and present it at court. You do not even need a notary to do so. Simply get the doctor to sign a declaration of the authenticity of the recommendation as a business record. As a record kept in the normal course of business, your authenticated recommendation should be considered admissible hearsay evidence and should be admitted. The doctor should make a certain number of copies of the recommendation in an envelope, and sign the declaration and tape it to the front of the envelope. For more on the authentication procedure, see the California Evidence Code.
That being said, some judges will insist on a doctor's testimony and will ignore People v. Jones and an authenticated recommendation. For these judges, it may be helpful if the doctor does make an appearance, or at least creates a secondary affidavit that states that he or she diagnosed you and found it reasonable that marijuana could relieve the symptoms of your condition.
Also, whether it is a doctor's testimony or yours, you should also be able to refuse to disclose details of your medical records or history, as there is established caselaw protecting your medical records and the confidentiality of the doctor-patient relationship in exactly these circumstances. See Bearman v. Superior Cour of Los Angeles (2004).Additionally, at your Preliminary Hearing or later, you may need to provide evidence to correct mistaken law enforcement regarding weight or plant numbers based on improper yield predictions, inclusion of water weight and unrooted clones (non-plants), or you may need medical testimony concerning specific amounts needed for personal use given your condition. The solution is often to get your Public Defender or private attorney to bring in an expert witness to testify. In order to apply to the court to get an expert witness, you can use a motion, found on Chris Conrad's site, called an Ex Parte Application for Appointment of Expert Witness and for Funding and Points and Authorities in Support Thereof. Here is a partial list of common medical marijuana expert witnesses:
If it looks like the case might go to trial, email ASA's Legal Services 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 about 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 Services 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 Services Coordinator for information regarding expert witnesses.
Note: See Safe Access Now's list of local guidelines. Any location not listed defaults to the state guidelines of 8 oz. or less of medical marijuana + 6 mature or 12 immature plants. In collective situations, multiply the applicable guidelines by the number of patient recommendations held
Simply follow the relevant instructions in I.A. (for ≤ 8 oz. of hash) or in I.B. (for > 8 oz. of hash) of this FAQ with one small change. In addition to the other documentation that you present, also print and present Attorney General Opinion 03-411 which states that the Compassionate Use Act also exempts the use of concentrated cannabis (C.C.), or "hash", from criminal sanctions. Although it is ASA's position that a patient may possess a combination of C.C. and processed bud that is consistent with the local guidelines (e.g., 7.5 oz. of marijuana and .5 oz. Of C.C), there is a risk associated with possessing C.C., as the law is unsettled and law enforcement tend to be biased against C.C. and may escalate an encounter after finding even trace amounts of it.
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. The Court of Appeal (4th District) in Garden Grove v. Superior Court (p. 19-20) made this argument official in 2007 when it concluded that Vehicle Code 23222(b) should not be applied to medical marijuana patients with up to date recommendations. Print Garden Grove v. Superior Court and present it with the other materials.
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. Sadly, these patients are then arrested, brought to the police station, and forced to give blood/urine samples without any other evidence aside from their patient status. 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 Services Coordinator and include as many details about the interaction as possible, including:
Remember: the burden of proof will be on the officer to prove that you were impaired.
Instead of jumping to conclusions, police officers should be using the totality of circumstances to evaluate whether a medical marijuana patient is impaired and should be charged with DUI-Marijuana. Here are some good facts that your lawyer should highlight, if present (as opposed to some bad facts that your lawyer may need to explain):
Generally, most blood and urine tests test for the simple presence of marijuana metabolites and it is up to the jury to determine impairment. If your lawyer is attempting to argue that your ng/ml amount does not constitute impairment, 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. This report suggests that impairment may not occur until 3-5 ng/ml THC in blood.
There are also several studies that show that marijuana use does not raise your risk of road trauma. Use these resources and print and present them to your attorney.
Because DUI-marijuana cases are often very fact-specific, if your Public Defender does not have any relevant experience, you may want to consider looking at attorneys who specialize in DUI-Alcohol & Drugs cases, if you can afford one. Also, if, at any point, the DMV also begins proceedings to take away your driver's license based solely on your patient status, go to this FAQ to read more about DMV issues.
If so, look to I.A. of this FAQ for instructions on the court process and what to present, and in addition, print and present Cal. Health & Safety Code § 11362.765. This code section from S.B. 420 says that an individual who provides assistance to a qualified patient in administering medical marijuana to the qualified patient is exempted from criminal liability from the listed offenses. You and your lawyer should argue that while Health & Safety Code § 11364 is not specifically exempted in S.B. 420, if you are a qualified patient using the paraphernalia to administer medical marijuana to yourself, you qualify for S.B. 420's exemption, and it would be illogical to allow you to possess medical marijuana but not a means to administer it.
If so, look to I.A. of this FAQ for instructions on the court process and print and present Attorney General Opinion 03-411. Unfortunately, the law is more complex on this topic than the simple possession of concentrates, and a court may deny you the ability to assert a medical marijuana defense because this statute is not specifically named in S.B. 420.
Additionally, according to a recent appellate court decision, People v. Niall Bergen, there is a distinction between manufacturing concentrated cannabis with chemicals (e,g, using alcohol, butane, or another chemical solvent) as opposed to manufacturing it naturally (e.g. using pressure, screening, ice water/freezing, butter, or vegetable oil). Naturally manufactured concentrated cannabis is almost certainly protected under the medical marijuana laws, whereas chemically manufactured concentrated cannabis may not be.
Finally, please note that ASA has received reports from patients that law enforcement has used this charge simply for the presence of butane and a length of PVC pipe, stored in different parts of the house, even with no other evidence of manufacturing, so be careful.
If so, look to I.A. of this FAQ for instructions on the court process and print and present any relevant materials. Presumedly, law enforcement found that you have a young child or children, and is asserting that because there was marijuana or plants in the house, you were permitting your child "to be placed in a situation where his or her person or health is endangered," which is criminalized in Cal. Penal Code §273a
Hence, this will be a very fact-specific case, and you will have to assert that the living environment of the child or children did not endanger their health, that your use of your medicine did not affect your ability to be a good parent, and that you kept your medicine very separate from your children. Here is a list of tips that demonstrate best practices for a responsible patient-parent, and you should highlight any to your attorney that are relevant to your situation.
S.B. 420 also specifically exempts medical marijuana patients from criminal sanctions under Cal. Health & Safety Code § 11366 (Maintaining a place to sell marijuana), 11366.5 (Allowing a building to be used for distribution of a controlled substance), & (11570 (Nuisance of building used for distribution of a controlled substance).
If you have a different California criminal charge related to your use of medical marijuana, contact the Legal Services Coordinator to discuss your situation.
Wait and see whether you receive a citation or notice to appear in the mail. Do not reach out to law enforcement, unless there are exceptional circumstances. In the meantime, try not to obsess over the chance that you might be cited, and prepare yourself for court in the event that you are charged, but using the relevant question in Section I. of this FAQ. At some point in the more distant future, you may want to call the law enforcement agency that you interacted with, to see if they actually plan to charge you (they will likely say that they have up to 3 years, but it does not mean they plan to do so) and to ascertain that there is no warrant out for your arrest of which you were not aware.
However, if the police have confiscated your medical marijuana, proceed to III.
If you possessed less than your local guidelines allow, you can file the Motion for Return of Property, as any possible retaliatory charges should eventually get dismissed for a patient with an current recommendation (although with an unfriendly judge, anything remains possible).
If you possessed more than your local guidelines allow and do not have a written exemption, the situation is more complicated because the D.A. can still charge you for up to 3 years from the incident and may choose to do so in retaliation for your filing of a Motion for Return of Property, and you are at greater risk of possible conviction. That being said, approximately 6 months after the seizure, risk of this type of retaliation is greatly lowered, especially if you did not greatly exceed the guidelines.
After you have evaluated the risks, visit our Return of Property page and follow the instructions. If you have any specific questions regarding any of the steps, please email ASA's Legal Coordinator with the date of seizure, amount of medical marijuana seized, and what steps you have taken so far.
During your court process, you should visit our Return of Property page and download and complete the Return of Property Motion. Bring your completed motion to every court appearance, and make sure that you or your lawyer presents it to the judge immediately after your case is dismissed.
Also, once you have gotten an Order for Return of Property from a judge, and gotten your property back, email us a .pdf file or fax us a copy of your signed order, as we would be happy to post your success story on our website.
If you possessed less than your local guidelines allow, you can file the Motion for Return of Property, as any possible retaliatory refiled charges should eventually get dismissed for a patient with an current recommendation (although with an unfriendly judge, anything remains possible).
If you possessed more than your local guidelines allow and do not have a written exemption, the situation is more complicated because the D.A. can still refile charges against you for up to 3 years from the incident and may choose to do so in retaliation to your filing of a Motion for Return of Property, and you are at greater risk of possible conviction. That being said, approximately 6 months after the seizure, the risk of this type of retaliation is greatly lowered, especially if you did not greatly exceed the guidelines.
After you have evaluated the risks, visit our Return of Property page and follow the instructions. If you have any specific questions regarding any of the steps, please email ASA's Legal Coordinator with the date of seizure, amount of medical marijuana seized, and what steps you have taken so far.
If you did not present your completed motion to the judge on the day of dismissal, you may file a Motion for Return of Property whenever you choose to (there is no statute of limitations).
In many cases, law enforcement confiscate non-medical marijuana property, such as: money, patients' recommendation, State ID card, medical records or other personal documents, cellphones, cultivation equipment, soil, & lights. Because law enforcement does not usually consider these items to be contraband, it is often easier to patients to retrieve them without court proceedings. You might want to try making a trip to the Police Property Clerk and attempting to negotiate to get these items back more immediately while preparing a Motion for Return of Property to address the confiscation of your medicine, and, if necessary, non-medical marijuana property. .