SELF-HELP LAW: California pot laws, Part 2

December 11, 2007

Marc Komer, Willits News (CA)

Proposition 215, the California Compassionate Use Act, was enacted by the voters and took effect on November 6, 1996. This law fundamentally changed who can be arrested for possessing marijuana in this state.

Some people, even though they are patients who possess marijuana, can be arrested. There is nothing in Proposition 215 to compel police to accept a patient's medical claim as being valid. Many legal patients have been raided or arrested for having dubious or outdated recommendations, for growing amounts that cops deem excessive, or on account of neighbors' complaints. An essential aim of the state ID card system will be to help avoid undue arrests. Once patients have been charged, it is up to the courts to determine the validity of their medical claim.

A landmark State Supreme Court decision, People vs. Mower, holds that patients have the same legal right to marijuana as to any legally prescribed drug. Under Mower, patients who have been arrested can request dismissal of charges at a pre-trial hearing. If the defendant convinces the court that the prosecution hasn't established probable cause that it was for other than medical purposes, criminal charges are dismissed. If not, the patient goes on to trial, and the burden is on the prosecution to prove "beyond a reasonable doubt" that the defendant was guilty. Those who have had their charges dropped may file to have their property returned, and possibly claim damages.

In many cases, police raid patients and take their medical marijuana without filing criminal charges. In order to reclaim their marijuana, patients must then file a court suit on their own.

Under the federal Controlled Substances Act, possession of any marijuana is a misdemeanor and cultivation is a felony. In addition, premises used to sell or cultivate marijuana for sale are subject to forfeiture.

Who qualifies as a physician? Proposition 215 applies to physicians, osteopaths and surgeons who are licensed to practice in California. It does not apply to chiropractors, herbal therapists, etc. Under Proposition 215, physicians are required to state that they "approve" or "recommend" marijuana. Physicians are not allowed to "prescribe" marijuana, as federal law restricts "prescriptions" to drugs licensed for sale in pharmacies.

What illnesses can marijuana be recommended for? Proposition 215 lists "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." It qualifies this by stating that its purpose is "to ensure that seriously ill Californians have the right to obtain and use marijuana." A recent appellate court decision in People v. Spark ruled that the question of whether the patient's medical condition is "serious" is to be made by a physician only. Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, post-traumatic stress, PMS, depression, and substance abuse.

ABOUT THE AUTHOR: Marc Komer is a legal document assistant and can be reached at 459-2775 or www.mendolegaldocs.com.



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