CHP Revises Policy on Pot Seizures

August 27, 2005

Eric Bailey, Los Angeles Times

SACRAMENTO — The California Highway Patrol has ordered its officers to stop confiscating medical marijuana during routine traffic stops, a victory for patients hoping to win broader acceptance of the controversial medicine from balky police departments around the state.

Highway Patrol officials sent out a bulletin last week to field commanders spelling out the policy shift, which would allow patients to travel on California's highways with up to 8 ounces of marijuana as long as they have a certified user identification card or documented physician's approval.

Patient advocates say the change will make the state's highways a "safe haven" for those who use marijuana with a physician's permission. They also hope the shift by the CHP sets an example for law enforcement agencies around California.

"This is going to send a very clear message: The constitutionality of patients needs to be protected," said Steph Sherer, executive director of Americans for Safe Access, a marijuana patients group that sued the CHP to force the policy change. "Our hope is this will ripple around the state."

Lt. Joe Whiteford, a CHP spokesman, called the policy shift "a revision" needed in part because of confusion among rank-and-file officers over a recent U.S. Supreme Court ruling.

The high court declared in June that medical marijuana laws in a dozen states, including California, don't protect patients or suppliers from federal prosecution. But the ruling did not sweep away state medical marijuana laws and had no effect on local and state police such as the CHP.

Although voters legalized medical marijuana in California nearly nine years ago, police statewide have wrangled with activists over how to enforce the law.

Police officers have griped in particular about the difficulty of distinguishing true patients from recreational pot smokers.

With the Highway Patrol's new medical marijuana policy, officers in the field "have got their marching orders," Whiteford said. "Now they're pretty clear what to do."

For the last fiscal year, ending in July, Americans for Safe Access collected reports from 457 patients and caregivers who were arrested or had their medical marijuana seized by police officers in California.

About a quarter of those cases involved the Highway Patrol, and the rest were spread among police and sheriff's departments in 48 of California's 58 counties.

The Oakland-based patient group sued the CHP and Gov. Arnold Schwarzenegger in February, asking the Highway Patrol to alter its confiscation protocols for medical marijuana. Activists said CHP officers would seize even the smallest amounts and sometimes arrest patients after they presented documentation from a physician.

Highway Patrol leaders balked initially, saying they wouldn't halt medical marijuana confiscations until the state launched an ID card program so officers could more easily distinguish legitimate cannabis patients.

California health officials started an ID program earlier this year, but participation has lagged, with cards issued to only 176 patients. Meanwhile, some cities and counties have issued thousands of cards. San Francisco has 8,000 registered medical marijuana patients with ID cards.

The CHP's new rules of engagement on medical marijuana advise patrol officers to accept state or local ID cards as proof of a patient's medicinal need. Patients can also provide a physician's written recommendation.

In the CHP's Aug. 22 bulletin, commanders spelled out how a typical scenario might be handled in the field. If an officer observed marijuana and the patient presented a doctor's written recommendation, the officer would call dispatch to attempt to verify its authenticity. If the document was valid, the marijuana would not be seized.

The new rules allow leeway for officers, authorizing them to use "sound professional judgment" to judge a patient's medical claim.

But the bulletin advised officers to be alert for indications of trafficking, such as "pay/owe" records, large quantities of cash or a big stash of the drug packaged as if for sale.

When a patient cannot provide proper proof or has more marijuana than allowed, the officer will confiscate the drug. The officer is also required to advise the person that he or she can file a motion with the court for the return of medical marijuana.

Patients who have jousted with the Highway Patrol over medical marijuana expressed delight with the new rules.

Mary Jane Winters, a 54-year-old nurse from Ukiah, was pulled over for speeding in November 2004. She said she was driving to deliver flowers to a homeless shelter. She was cited for possession of 2 ounces of marijuana. Winters said she has used the drug for a decade to offset pain from a back injury.

"I'm ecstatic," she said of the policy change. "This is the first step toward justice."

The next steps will likely come in court.

Joe Elford, chief counsel at Americans for Safe Access, said the group's lawsuit against the CHP won't be settled until the new policy is affirmed in court or in a binding legal document.

The group will continue monitoring medical marijuana seizures by police around the state, Elford said, and will file lawsuits "against any department, big or small, that doesn't follow the lead of the CHP."



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