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Despite the passage of the Compassionate Use Act (CUA) in 1996, and the implementation of state senate legislation SB 420 in January 2004, patient arrests and medicine seizure by law enforcement is still a widespread problem in California. For more info on the extent of police misconduct, see ASA's report, "Out of Compliance". Often, patients and caregivers end up in court defending themselves against malicious prosecutors and frivolous charges. To counter this predicament, there are certain legal tools that can aid in a patient's defense in court. For a general overview of legal cases and strategies around defending medical marijuana patients, see ASA's legal manual for attorneys. Below are some specific tools for attorneys and pro per patient defendants.
Application for dismissal in the interests of justice
A defendant may "informally suggest" that the magistrate or superior court dismiss the information or complaint "in the interests of justice" under Penal Code § 1385. People v. Konow (2004) 32 Cal.4th 995, 1022, 12 Cal.Rptr.3d 301, 320. Counsel may do this at any time, even as early as the arraignment, or in connection with a demurrer to the complaint, when the evidentiary foundation is laid through the submission of the doctor's recommendation by declaration under Evidence Code § 1590. More frequently, defense counsel will establish that the charged activity involves medical marijuana at the preliminary hearing and make the informal request under Penal Code § 1385 at that time or in connection with a motion to set aside the information under Penal Code § 995. This may present the best hope for dismissal in cases where the defendant does not meet the technical criteria for the medical marijuana defense, as where the defendant distributed marijuana through a dispensary.
Motion to dismiss
Typically, a defendant's preliminary hearing is the time to argue a motion to dismiss, whereby defense counsel establishes that the charged activity involves medical marijuana, and provides evidence to justify the quantities possessed.
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