California top court nixes medical marijuana limits

January 21, 2010

Josh Richman, Oakland Tribune

The California Supreme Court on Thursday unanimously struck down state law's limits -- and, most likely, local limits, too -- on how much marijuana a patient or caregiver can possess or grow for medical purposes. But the state's highest court revived another part of state law that a lower court had ordered voided, protecting the state's voluntary identification card program for patients and caregivers.

The state attorney general's office had agreed with lawyers for defendant Patrick Kelly, of Lakewood, that the limits should be abolished but the ID card system retained.

Kris Hermes, spokesman for Oakland-based Americans for Safe Access, said the court's ruling also renders unconstitutional many city and county ordinances that impose possession and cultivation limits. Oakland, for example, had set limits of up to 72 indoor plants with up to 32 square feet of canopy, or up to 20 outdoor plants at any stage of development, and as much as 3 pounds of dried marijuana.

"I imagine it'll apply to us as well," Oakland City Attorney John Russo agreed. Though the ruling doesn't affect other local regulations, such as dispensary permits or police de-prioritization of marijuana enforcement, he added, "I think you can surmise pretty safely that this decision indicates a very short remaining life for some of the local attempts to quantify (legal amounts)."

Also under the ruling, those who opt into the ID card system and abide by state or local limits may remain protected from arrest and prosecution by state and local authorities. Those who exceed the limits, ID card or not, can still make a defense in court that they're abiding by the original law — exceeding the limits isn't a criminal act.

California voters in 1996 approved Proposition 215, the Compassionate Use Act; it set no possession or cultivation limits.

The Legislature in 2003 added new Health and Safety Code sections creating the voluntary ID card program and limiting a patient or caregiver to possessing no more than 8 ounces of dried marijuana and maintaining no more than six mature or 12 immature marijuana plants.

Kelly -- who suffers from hepatitis C, back problems including ruptured disks, a fused neck, nausea, fatigue, cirrhosis, appetite loss and depression -- got a doctor's recommendation and began using marijuana medically in 2005. Later that year, Los Angeles County deputy sheriffs arrested him after finding seven potted marijuana plants in his home and more growing outside his garage, and about 12 ounces of dried marijuana.

The state Supreme Court agreed Thursday with the California Court of Appeal's 2nd District that the 2003 law's limits were unconstitutional because the Legislature can amend a voter-approved law only if that law specifically allows amendment -- which Prop. 215 doesn't -- or through another voter-approved initiative.

But the ID card program isn't unconstitutional because it's voluntary, the court found, and the possession and cultivation limits can still apply to those who choose to get ID cards as a protection against unnecessary arrest and prosecution.

Hermes said the court was right to lift the limits, but leaves a lot to law enforcement's discretion.

"It creates a bit of a question as to how things will play out between law enforcement and the patient community for those patients who don't have state ID cards," he said. "In the hostile jurisdictions, you may find police going after any patient. That would be very unfortunate and would be a very sad outcome of this decision; however, that's a very real possibility that we have to be vigilant to try to deter."

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