State top court to review medical pot limit
August 13, 2008
Bob Egelko, San Francisco Chronicle
The state Supreme Court returned to the medical marijuana wars Wednesday, agreeing to decide the validity of a law that shields doctor-approved pot users from arrest for possessing up to eight ounces of dried marijuana or growing six plants.
The appellate panel overturned the conviction of a Los Angeles County man who possessed more than eight ounces of marijuana and ruled that the 1996 initiative bars the Legislature from specifying the amount a patient can possess.
The case has divided medical marijuana advocates, with some arguing that the court should have left some standards in place to guide police and protect patients.
The 1996 initiative, Proposition 215, allowed Californians to possess and cultivate marijuana for medical use with their doctor's approval. The court has interpreted Prop. 215 to provide broad protections for medical patients in criminal cases, but has not extended those protections to the workplace. Notwithstanding the law, the justices ruled in January that employers could fire workers who used medical marijuana away from the job, a ruling that advocates are trying to overturn in the Legislature.
Wednesday's case began in 2005, when officers in Los Angeles County searched Patrick Kelly's home and found seven plants in his back yard, 12 ounces of marijuana in plastic baggies, and a doctor's note saying he needed marijuana for hepatitis C, back problems and other ailments.
The prosecutor told jurors that Kelly was not a legitimate medical marijuana user because he exceeded the limits of the 2003 law. He was convicted of illegal possession and cultivation and sentenced to two days in jail and three years' probation.
The Second District Court of Appeal in Los Angeles overturned the conviction in May, agreeing with Kelly's lawyer that the 2003 law was invalid because it set limits that conflicted with Prop. 215, which does not specify the amount of marijuana a patient may possess for medical use.
But one advocacy group, Americans for Safe Access, argued that the 2003 law did not limit the amount of marijuana a patient could possess; it merely set guidelines for police. Striking down the law would eliminate a statewide standard that "protects qualified patients from unnecessary arrests," attorney Joseph Elford argued in court papers.
The American Civil Liberties Union offered a different interpretation: The eight-ounce limit and protection from arrest is an option that applies to the more than 18,000 patients who have obtained medical marijuana identification cards, also authorized by the 2003 law.
All patients remain covered by Prop. 215, which allows doctors to recommend greater amounts of marijuana and leaves local governments free to set higher limits, ACLU lawyer M. Allen Hopper said. San Francisco, for example, allows possession of up to 24 marijuana plants, he said.
Deputy Attorney General Michael Johnsen took a similar view, arguing that without the numerical standards, "law enforcement has no clear legislative guidance ... and medical marijuana patients have little incentive to volunteer for the cardholder program."
The Supreme Court has not set a hearing date.
The case is People vs. Kelly, S164830.
E-mail Bob Egelko at email@example.com.