How to Defend a Medical Marijuana Patient in California

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I. INTRODUCTION

Background

On November 4, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act ("CUA"), to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" without criminal penalty. Cal. Health & Safety Code ("H & S") § 11362.5(b)(1). Since then, hundreds of medical marijuana patients and those who supply them with the medicine they need have been searched, arrested and prosecuted for marijuana violations, in large part because the CUA has been interpreted in a very obscure manner. Recognizing this, the California Legislature passed SB 420, or the "Medical Marijuana Program Act" ("MMPA"), which was signed into law on October 13, 2003, with an effective date of January 1, 2004. This outline is intended to help criminal defense practitioners understand medical marijuana law in California and serve as effective advocates for their clients.

Overview

The CUA provides basic protections for medical marijuana patients and their primary caregivers from prosecution for cultivation and possession of marijuana for medical use. Since it became effective on November 5, 1996, California courts of appeal have, for the most part, narrowly construed its provisions, fearing an "open sesame" for marijuana distribution not intended by the California voters. See People v. Trippett (1st Dist. 1997) 56 Cal.App.4th 1532, 1546, 66 Cal.Rptr.2d 559. As a result of their extreme caution, medical marijuana patients and their caregivers have been left largely unprotected from arrest and prosecution for transporting and distributing medical marijuana, as well as the seizure of their medicine, even when they had valid documentation proving their eligibility for the protections of the CUA. Their fates depended largely on the discretion of the local police, which has proved a mixed blessing due to vast disparities in the local guideline amounts of marijuana that a qualified patient could possess without fear of legal repercussion. This problem has been considerably exacerbated by local bans of medical marijuana dispensaries, which is the subject of a pending California Supreme Court case. See City of Riverside v. Inland Empire Patient's Health and Wellness Ctr., Inc. (2011) 133 Cal.Rptr.3d 363, review granted Jan. 18, 2012.

Purpose

Expressly motivated by "reports from across the state [that] have revealed problems and uncertainties in the [CUA] that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act," the California Legislature passed Senate Bill 420, Stats. 2003 c.875 ("SB 420") on September 10, 2003. See SB 420 § 1(a)(2). SB 420 does not, and cannot, amend or restrict the provisions of the CUA, but, instead, seeks only to clarify or, in some cases, to expand upon it. See Letter from John Vasconcellos & Mark Leno to The Hon. John Burton, dated Sept. 10, 2003 (printed in Historical and Statutory Notes to Cal. Health & Safety Code § 11362.7) (noting that Proposition 215 cannot be amended by the Legislature); Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-84, 76 Cal.Rptr.2d 342 ("When a statute enacted by the initiative process is involved, the Legislature may amend it only if the voters specifically gave the Legislature that power, and then only upon whatever conditions the voters attached to the Legislature's amendatory powers"); see also Cal. Const., Art. 2, § 10(c) (the Legislature "may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval").

The four most noteworthy features of the new law are that it (1) establishes threshold minimum quantities of marijuana that a qualified patient may possess without having to demonstrate "reasonable personal use;" (2) explicitly protects qualified patients and primary caregivers from prosecution for transportation and "non-profit" sales of marijuana; (3) creates a voluntary identification card system that can be checked instantly by law enforcement, which provides immunity from arrests and seizures; and (4) "'promote[s] uniform and consistent application of the [CUA] among the counties within the state' and 'enhanc[es] the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.'" See County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 864, 121 Cal.Rptr.3d 722, citation and quotations omitted. This outline focuses almost exclusively on the protections afforded by the CUA and SB 420 to non-cardholding patients and caregivers, since significant delay in the implementation of the identifications card system is expected. [It should be noted that most of the provisions of SB 420, H & S § 11362.765 et seq., apply even to those who do not obtain valid identification cards.] Meanwhile, defense counsel should argue that the protections afforded by the voluntary identification care system should be extended to qualified patients who have documentation that would otherwise entitle them to an identification card (H & S § 11362.71(e)), since they should not be deprived of the protections intended by the Legislature due to bureaucratic delay.

Evolution of the Law

Understanding the progression of the case law and statutes is essential to effective advocacy because the courts have not been consistent in their interpretation of California's medical marijuana laws. In the early years, after the CUA was enacted in November of 1996, California courts of appeal issued rather restrictive constructions of its provisions. See, e.g., People v. Trippett (1st Dist. 1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559 (CUA does not apply to transportation, except, perhaps, under very limited circumstances);Lungren v. Peron (1st Dist. 1998) 59 Cal.App.4th 1383, 70 Cal.Rptr.2d 20 (CUA does not apply to cooperatives). This case law was abrogated, in part, on July 18, 2002, when the Supreme Court of California issues its only published decision on the CUA to date. People v. Mower (2002) 28 Cal.4th 457, 122 Cal.Rptr.2d 326. Then, on October 12, 2003, SB 420 was signed into law, which enables defense counsel to argue that adverse authority decided before Mower (July 18, 2002) or SB 420 (Oct. 12, 2003) is no longer good law in light of either, or both, of their provisions.

Retroactivity

Both the CUA and SB 420 are retroactive. The general rule is that a criminal defendant is entitled to the benefit of a change in law, unless that law contains a savings clause. See People v. Babylon (1985) 39 Cal.3d 719, 722, 216 Cal.Rptr. 123; see also People v. Rossi (1976) 18 Cal.3d 295, 304 134 Cal.Rptr. 64 (quoting Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814 ("the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct"). Because neither the CUA nor SB 420 contains such a clause, they almost certainly apply retroactively. See People v. Trippett (1st Dist. 1997) 56 Cal.App.4th 1532, 1544-45, 66 Cal.Rptr.2d 559, 567 (holding that CUA applies retroactively). [Technically speaking, SB 420 cannot be retroactive, since it merely clarifies, rather than amends, the CUA. See supra. However, to the extent SB 420 enlarges the protections available to criminal defendants and is challenged for doing so, defense counsel should argue that the law amends the legislatively enacted proscriptions against marijuana possession and use, rather than the CUA.]

II. PRELIMINARY CONSIDERATIONS

  • General Rule
  • Searches
  • Arrests
  • Motion for Return of Property
  • Motion for Determination of Factual Innocence
  • Motion for Sealing of Court Files and Destruction of Police Records

III. PRETRIAL PROCEEDINGS

  • Motion to Set Aside the Indictment or Information
  • "Informal Request" to Dismiss Complaint in Furtherance of Justice
  • Motion to Preclude Defense Under Evidence Code § 402
  • Burden of Proof
  • Compelled Disclosure of Defense
  • Compelled Self-Incrimination
  • Ex Parte Under Seal Offers of Proof
  • Motion in limine to exclude reference at trial to quantities cited in SB 420

IV. DEFENSES AT TRIAL

  • Elements for Individual Patients
  • Persons Included
  • Illnesses Included
  • Illnesses/Treatments
  • Recommendation/Approval
  • Need not be in writing
  • An "approval" requires less than a "recommendation"
  • Need not necessarily come from patient's primary doctor
  • Quantity
  • SB 420 Amounts
  • Fact-based inquiry into reasonable medical needs
  • Projected Yields
  • Average Personal Use
  • Potency/Form
  • Exculpatory Facts
  • Inculpatory Facts
  • Elements for Collectives and Cooperatives
  • Application to Cooperatives and Their Suppliers
  • The MMPA Defense
  • Qualified Primary Caregiver
    1. Designation
      • Application Where Designation Is Made By One Who Is Not a Qualified Patient
      • Designation Should Be Listed on Qualified Patient's Identification Card
    2. Consistent Responsibility for the Housing, Health, or Safety of the Patient
      • Must be 18 Years Old
      • May Include Employees of Health Care Facilities
      • May Serve More Than One Patient If All Reside Within Same City or County
      • Application Where Sole Responsibility Is To Provide Medical Marijuana to a Patient
  • Offenses Included
  • Transportation
  • Sales
  • Offenses Not Included
  • New Offenses

V. MEDICAL MARIJUANA DEFENSES OTHER THAN THOSE PROVIDED BY THE CUA AND THE MMPA

  • *Mistake of Fact Defense
  • Medical Necessity Defense
  • Elements
  • Applicability to a Medical Marijuana Case
  • Religious Freedom Defense
  • Vagueness
  • VI. PUNISHMENT/COLLATERAL CONSEQUENCES
  • Probation/Bail
  • Parole
  • Proposition 36
  • Inmates
  • Child Custody
  • Licensing revocation
  • VII. APPELLATE CONSIDERATIONS
  • Waiver
  • Standard of Review for Preclusion of Defense