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Table of Contents
- Citation or notice to appear
- Pleading and plea bargains
- Preliminary Hearing, Motions Hearings, Pre-Trial Conference
- Out-of-date recommendations
- Withdrawing a plea
- Expunging records
- Local Guidelines
- Expert Witnesses
- Authenticating a Recommendation
- Possession of concentrated cannabis (hash, hashish, hash oil, edibles) (Cal. Health & Safety Code § 11357(a))
- Possession of < 1 oz. marijuana while driving a vehicle (Cal. Vehicle Code § 23222(b))
- Driving Under the Influence-Marijuana (Cal. Vehicle Code § 23152)
- Possession of Marijuana Paraphernalia (Cal. Health & Safety Code § 11364)
- Manufacturing/Conversion by Chemical Extraction of Concentrated Cannabis (Cal. Health & Safety Code § 11379.6)
- Child Endangerment (Cal. Penal Code § 273a)
- Health & Safety Code § 11366, 11366.5, 11570, or another California criminal charge
- No citation or charge after your encounter with law enforcement
- Medical marijuana confiscated by the police
- Return of non-medical cannabis-related property
- Police misconduct
- Police harrassment
- How to Defend a Medical Marijuana Patient in California
- Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (2008)
- ASA's report on the AG Guidelines
- NORML's page on California's cannabis laws
- California's Compassionate Use Act (Cal. Health & Safety Code § 11362.5)
- S.B. 420 (Cal. Health & Safety Code § 11362.7-11362.830)
- ASA's page for Landmark Decisions
- Most of the criminal charges mentioned are in the Health and Safety Code (Sections 11357-11362.9, 11362.7-11362.83, 11377-11382.5), the Vehicle Code, or the Penal Code.
You should have a supporter (a friend or relative) contact a bail bondsman to try to get you released. Unless you are able to put up the full amount of the requested bond as collateral to guarantee that you do not flee, you will have to use the services of a bail bondsman. In order to post bond for you so that you can get out of jail, it is likely that the bail bondsman will charge you a fee of nearly 10% of the bond. This fee is payment for the bail bondsman's service, and will not be refunded, even if your charges are dismissed or dropped.
Citation or notice to appear
If you get a citation or notice to appear, you have to appear in court. If the criminal court is very far from you, or in another state, you can try calling the relevant county Public Defender's office to see if the court can hold the first hearings without you, or if you are eligible for judgment by mail. You will probably have to attend every court appearance or the judge can issue warrant. In the vast majority of cases, simply faxing or mailing in your recommendation and other documents is insufficient. In any event, if you are unable to make a court date, be sure to contact the court by telephone or mail to let the court know your plans.
If the citation says "on or before" a certain date, call the relevant criminal court if you have questions about appearing on a specific day, or simply walk into court and present your citation to the court clerk to try to get on the docket that day.
Arraignment is when the judge will ask you to plead - Guilty or Not Guilty. Show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty. Be polite. The Public Defender on duty will only represent you at this appearance, and you will likely receive a different attorney for the duration of your case after pleading Not Guilty.
Bring two (2) copies of each of the following to your arraignment:
- Your recommendation (and any other relevant recommendations for collective situations).
- Your State identification card, if you have one (See this list of counties participating in the State id card program)
- A copy of People v. Wright, a California Supreme Court decision that reiterates the right of a qualified patient to possess, cultivate or transport at least 8 oz. of medical cannabis and 6 mature or 12 immature plants and to assert the protections of the Compassionate Use Act and S.B. 420 as an affirmative defense to related charges.
Give these documents of the Public Defender, note the quantities involved in your case, and explain that you are a qualified medical marijuana patient. Then, ask the Public Defender to bring your documentation to the District Attorney (D.A.) on duty before your arraignment and ask the D.A. to dismiss the case without even having to plead.
Sometimes this will work and the D.A. will decline to pursue charges. Otherwise, you will be arraigned. If you qualify, you will be assigned a Public Defender to represent you for the duration of the case.
Most Public Defenders are very competent individuals who work hard at their jobs and will represent you intelligently and vociferously. However, some Public Defenders will be hindered in their ability to represent you well by high workloads, lack of knowledge of medical marijuana laws, and active bias against medical marijuana (especially in some of the unfriendlier counties). If a Public Defender is very difficult to work with, you may want to consider switching attorneys, either to a private attorney, or another Public Defender.
Unfortunately, the quality of private attorneys as uneven as that of Public Defenders. While some private attorneys provide excellent representation on medical marijuana issues, other do not, and most private attorneys can be expensive. It is completely up to you as to whether to and when to switch from your Public Defender to a private attorney, but here are some tips to consider:
- Possession of small amounts of processed bud and plants, especially Possession of < 1 oz. can usually be dealt with more quickly than other cases and you should hopefully be able to use a Public Defender for the whole case, unless you happen to have a particularly unfriendly Public Defender.
- In cases that involve very high processed bud or plant numbers, or very complicated sets of facts regarding the validity of a recommendation or significant evidence of marijuana sales, it is more likely that a Mower Motion will be insufficient and the cases will proceed to trial. In these cases, if you do not feel that your Public Defender has demonstrated enough knowledge or interest in the medical marijuana information you have provided, you may want to seek out a specialist in medical marijuana law. However, take care not to assume immediately that your Public Defender lacks knowledge, and instead evaluate his or her performance in court and in communication with you.
- When you and your Public Defender clearly disagree over the legal strategy decisions in your case, and he or she does not appear to want to represent you in the way that you want, it may be time to switch attorneys. However, before doing so, ask your Public Defender what the reasoning is behind her or his decisions so that you can evaluate it, as opposed to assuming a bias or lack of desire to represent you. Another intermediate step you can take is to ask your Public Defender to contact ASA's Chief Counsel to discuss legal strategy and the case.
- DUI-Marijuana cases tend to be very fact-specific, and more similar to DUI-Alcohol cases than other marijuana charges, and there are attorneys who specialize in DUI cases. You may want to use www.martindale.com or Google using the search terms "DUI", "marijuana", and your region to find an appropriate specialist.
Here is a list of private attorneys who do marijuana work from the California NORML website. ASA does not endorse the expertise and skills of any of these attorneys specifically and has no control over the list, but it is a useful place to start your search for a private attorney. No matter what, you should find out as much you can about a prospective attorney before retaining them.
Pleading and plea bargains
Your plea is when you answer Guilty or Not Guilty to your charges. If you want to continue fighting your case, plead Not Guilty. All other pleas as essentially a guilty Plea.
A plea bargain is when you plead guilty in exchange for a pre-arranged sentence. Some attorneys will try to pressure patients into accepting a plea bargain offer. If you were within the local guidelines and had an current recommendation, you can assert your patient status and take your case to trial. If your case is complicated, you should use the following tips to evaluate whether to accept a plea bargain offer.
Ask your lawyer about the following:
- The maximum sentence that you could receive if convicted, and the likelihood,
- The most likely sentence that you could receive if convicted, and the likelihood, and
- The likelihood of getting convicted, given the facts you have shared with your attorney and the defenses they intend to present.
Then, compare this information with the plea bargain deal being offered, and take into account:
- whether they are offering a Prop 36 Drug Diversion program (during which you will not be able to medicate),
- the length of the sentence and probation,
- eligibility for house arrest,
- whether the conviction will remain on your criminal record forever,
- whether pleading guilty (both to the offense and to specific facts) will affect your driver's license or other professional license (e.g., a conviction for a "reckless driving" will have negative consequences for your driver's license, wherea DUI will not), and
Preliminary Hearing, Motions Hearings, Pre-Trial Conference
After your Arraignment, your attorney will representing you at several hearings at which they can argue motions, and set the parameters for trial.
- You should ask your attorney to raise the medical cannabis defense at your Preliminary Hearing by making a 'Mower Motion' (aka 'Section 995 Motion to Dismiss'). In order to get your case dismissed using a Mower Motion, your attorney must simply show evidence of your status as a qualified patient or primary caregiver, such as your recommendation or State identification card.
- Make an appointment with your attorney to discuss your case at least several days before your Preliminary Hearing. Present a printed copy of one of these sample Mower motions (Motion_to_dismiss_Margolin.pdf, Motion_to_dismiss_Figueroa.pdf) to give her or him a model off of which to work and email the links as well, if appropriate. Additionally, you can bring a copy of People v. Wright.
- If your Public Defender is being unhelpful, or if for some reason you end up representing yourself (working "pro se"), you should know that you can make an "informal request" to dismiss the complaint "in furtherance of justice" under Cal Penal Code § 1385. See People v. Konow 32 Cal.4th 995, 1022 (2004). To do so, simply present the previously discussed evidence that you are a qualified patient or caregiver.
- If asserting the medical cannabis defense is running into major obstacles, your lawyer should also think about challenging the search in various ways, either in these preliminary proceedings, or at trial. For more information about whether or not law enforcement performed a "Good Search" on you, see this document prepared by ASA ally, Alexis Wilson. However, it is important to note that, with the April 23, 2008 Virginia v. Moore decision by the Supreme Court, even if law enforcement breaks California search and seizure law, the search may later be ruled constitutional under federal law, and the evidence seized may be admitted. Additionally, in the 2008 California Court of Appeal decision (1st District), People v. Hua, the court found that law enforcement agents conducted an unreasonable search and seizure when they entered the defendant's home without a warrant based only on their observation that someone inside was smoking cannabis.
- Attorneys looking for more information, please see Pretrial Proceedings of "How to Defend a Medical Marijuana Case".
Most cases of patients charged with crimes in California are dismissed long before the trial stage, but if you are dealing with a particularly stubborn judge or D.A., or there are other complicating factors, feel free to email ASA's Legal Services Coordinator and include what steps your attorney has taken so far, and when the trial is set to start. If you are particularly concerned with the knowledge or the performance of your attorney, one of the services that we offer is to have our Chief Counsel reach out to your attorney to confer about trial strategy and general medical cannabis law. If this is something you might be interested in, please also include the name and number of your attorney in your email to the Legal Services Coordinator. We do not have the resources to respond to every request.
Additionally, you should also provide your attorney with a copy of "How to Defend a Medical Marijuana Case".
Call the criminal court that signed the warrant, and ask the court if you can schedule a specific day to come in for your arraignment. Because of the warrant, you may have to agree to put up money as a surety bond when you appear, so make sure you ask about that on the phone. You should also call the county Public Defender's Office to see if they can get the warrant discharged.
If your recommendation is expired or you do not have a recommendation, you should go to a doctor in the hopes of getting a current recommendation son. Your case could still be dismissed.
According to the ASA How to Defend a Medical Marijuana Case manual, a recommendation need not necessarily be obtained prior to the charged conduct, where "exigent circumstances" explain a defendant's failure to obtain a doctor's recommendation before his arrest.
California Health & Safety Code § 11362.5(d) explicitly states that your doctor's recommendation does not have to be in writing. Your attorney may also be able to introduce evidence that you were under an oral recommendation, if your doctor approved your usage of medical marijuana, but no written record exists.
Finally, for patients with expired recommendations, your lawyer should present People v. Windus, a very strong case from 2008. In this case, the Court of Appeal (2nd District) held that a medical marijuana recommendation does not expire after a year, even if the doctor has requested annual visits.
If your Public Defender will not or can not appeal your case to your local Court of Appeal, you can hire a private attorney or represent yourself. Visit the California Courts website and put your city or zip code in the 'Court Locations' box - it will return your appellate district, among other information. Then contact the California Appellate Project office for the First, Second, Third & Fifth, Fourth, or Sixth Districts. However, the Public Defender should at least file your notice of appeal for you.
Except in certain situations, you must file your Notice of Appeal (Misdemeanor or Felony) within 60 days of the judgment on your case. Make sure you look at the California Rules of Court, especially Title 8, Chapter 3, Rules 8.304 & 8.308, to check all of the procedures you must follow. An appeal is not the same as another trial, and you will need to have an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
Withdrawing a plea
If you have good evidence that you were not competent when you made your plea, or did not understand the ramifications of your decision, you can try to make a Motion to Withdraw your Plea, although most of these motions are unsuccessful. If you make this decision after your judgment has been entered, then you can appeal the plea using a habeas corpus petition, which should include an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
Here is some information about the expungement of records process and here is a Petition for Dismissal form to use. Additionally, both medical marijuana patients and non-patients convicted of personal use offenses have their convictions automatically erased after two years, according to Health & Safety Code § 11361.5 & 11361.7. In fact, according to § 11361.7(c): "Any person arrested or convicted for an offense specified in subdivision (a) or (b) of Section 11361.5 may, two years from the date of such a conviction, or from the date of the arrest if there was no conviction, indicate in response to any question concerning his prior criminal record that he was not arrested or convicted for such offense."
Actually, while S.B. 420 includes some restrictions on primary caregivers who are less than 18 years old, there are no prohibitions at all on minors getting a recommendation, and it appears that minors have the same rights to assert a medical marijuana affirmative defense in court as any other patient.
A patient who is less than 18 years old is only really restricted slightly in the process that she or he has to go through to get the non-mandatory state ID card. According to Cal. Health & Safety Code § 11362.72(a), when a minor patient submits an ID Card application, the county health department must contact a parent or other person with legal authority to make decisions to verify the accuracy of the information. If the D.A. is making your age an issue, print S.B. 420 for your attorney to present, and note that no recommendation restrictions exist.
See Safe Access Now's list of local guidelines. Any location not listed defaults to the state guidelines of 8 oz. or less of medical cannabis + six mature or 12 immature plants. In collective situations, multiply the applicable guidelines by the number of patient recommendations held.
If your case involves amounts above these guidelines, consider these additional items:
- If the D.A. is charging you with felony possession with intent to sell, and has so-called "physical evidence" of that intent, such as scales, baggies, or "pay-owe sheets", be prepared to explain how these seized items were actually used for legitimate medical purposes. Additionally, courts will have a harder time relying on "expert testimony" of a police officer that the presence of certain items create a presumption of an intent to sell after the 2007 People v. Chakos decision. In this ruling, the California Court of Appeal (4th District) found that "expert testimony" of a police officer that six ounces of cannabis, a scale, baggies, and a small sum of cash was insufficient to uphold a conviction for marijuana distribution because the police officer lacked understanding of the patterns of use of cannabis by qualified patients and was therefore unqualified to testify as an expert.
- If you believe that the D.A. is wrongly calculating how much processed medical cannabis (bud) you have, please note that "only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana" under S.B. 420 (Cal. Health & Safety Code § 11362.77(d) ).
- If your doctor has given you permission to use more medical cannabis than is prescribed by your local guidelines, especially because you cook with your medical cannabis, it is important to note this in your motion. According to SB 420 patients may possess more medical cannabis than the guideline amounts with permission from their doctors. Cal. Health and Safety Code § 11362.77. The best evidence of this permission is when the doctor has written a note to this effect directly on your recommendation, but sometimes a doctor will give permission orally, without a written record. In such cases, it is helpful to ask the doctor if he/she would be willing to testify to such permission at one of your hearings.
- Finally, if you are collectively cultivating/possessing as a group of patients, it is important to provide all of the relevant recommendations in this motion. However, note that you should always receive express permission to do this from the other patients and you should inform them that all patients claiming to be part of a collective should be aware that they are possibly opening themselves up to similar charges by including themselves in your legal action.
You may be able to correct mistaken law enforcement regarding weight or plant numbers based on improper yield predictions, inclusion of water weight and unrooted clones (non-plants), or you may need medical testimony concerning specific amounts needed for personal use given your condition. The solution is often to get your Public Defender or private attorney to bring in an expert witness to testify in a pretrial hearing. In order to apply to the court to get an expert witness, you can use a motion, found on Chris Conrad's site, called an Ex Parte Application for Appointment of Expert Witness and for Funding and Points and Authorities in Support Thereof. Here is a partial list of common medical cannabis expert witnesses:
- Chris Conrad (CA)
- Bill Britt (Orange County, CA)
- Ed Rosenthal (CA)
- Dr. William Courtney (Mendocino County, CA) 707-456-0420
- Dr. David Bearman (CA)
- Dr. Eugene Schoenfeld (CA)
- Dr. Frank Lucido (CA)
- John Sajo (OR)
- Doug Mcvay (Northeast)
- Ben Masel (Midwest)
Authenticating a Recommendation
The judge may demand that your doctor testify in order to authenticate your recommendation and prove that you are "qualified patient." A court appearance by the doctor is not actually necessary and you should not need to do this to win your case. In People v. Jones, a 2003 CA Appellate Court (3rd District) case, the court held that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical cannabis, is sufficient, without verification from the doctor, for the jury to determine the defendant's status as a medical cannabis patient.
Instead of forcing your doctor to testify, get your recommendation authenticated and present it at court. You do not even need a notary to do so. Simply get the doctor to sign a declaration of the authenticity of the recommendation as a business record. As a record kept in the normal course of business, your authenticated recommendation should be considered admissible hearsay evidence and should be admitted. The doctor should make a certain number of copies of the recommendation in an envelope, and sign the declaration and tape it to the front of the envelope. For more on the authentication procedure, see the California Evidence Code.
If your judge still insists on a doctor's testimony, it may be helpful if the doctor does make an appearance, or at least creates a secondary affidavit that states that he or she diagnosed you and found it reasonable that cannabis could relieve the symptoms of your condition.
Also, whether it is a doctor's testimony or yours, you should also be able to refuse to disclose details of your medical records or history, as there is established caselaw protecting your medical records and the confidentiality of the doctor-patient relationship in exactly these circumstances. See Bearman v. Superior Cour of Los Angeles (2004).
Possession of concentrated cannabis (hash, hashish, hash oil, edibles) (Cal. Health & Safety Code § 11357(a))
In addition to the other documentation that you give your lawyer, also print and present Attorney General Opinion 03-411 which states that the Compassionate Use Act also exempts the use of concentrated cannabis (C.C.), or "hash," from criminal sanctions.
Possession of < 1 oz. marijuana while driving a vehicle (Cal. Vehicle Code § 23222(b))
Although this is not one of the listed crimes that patients are specifically exempted from in S.B. 420, its omission was clearly not deliberate. The Court of Appeal (4th District) in Garden Grove v. Superior Court (p. 19-20) said that Vehicle Code 23222(b) should not be applied to medical marijuana patients with up to date recommendations. Print Garden Grove v. Superior Court and present it with the other materials to your attorney.
Driving Under the Influence-Marijuana (Cal. Vehicle Code § 23152)
In court the burden of proof will be on the officer to prove that you were impaired.
Generally, most blood and urine tests test for the simple presence of cannabis metabolites and it is up to the jury to determine impairment. If your lawyer is attempting to argue that your ng/ml amount does not constitute impairment, you should give this report on Science-Based Per Se Limits for Driving under the Influence-Marijuana to your attorney. This report suggests that impairment may not occur until 3-5 ng/ml THC in blood.
There are also several studies that show that cannabis use does not raise your risk of road trauma. Present these resources to your attorney:
- Psychoactive substance use and the risk of motor vehicle accidents
- Dose related risk of motor vehicle crashes after cannabis use
- Cannabis Poses Less On-Road Risk Than Alcohol, US Crash Data Says
- NORML's DUI Study
Because DUI-marijuana cases are often very fact-specific, if your Public Defender does not have any relevant experience, you may want to consider looking at attorneys who specialize in DUI-Alcohol & Drugs cases, if you can afford one.
Police officers should be using the totality of circumstances to evaluate whether a medical cannabis patient is impaired and should be charged with DUI-Marijuana. In an ideal case, the following would all be true:
- The police officer is only able to assert that he/she smelled the general smell of cannabis in the passenger compartment, which would come from an unopened package.
- All cannabis was stored, in closed bags, in the trunk.
- There is no resinated paraphernalia in the car, especially in the passenger compartment.
- Your recommendation and State ID Card were present in the car with the medicine.
- You did not make any statements to the police about the last time you medicated, or you admitted that you had not medicated for a long period of time--e.g. 12 hours.
- Field Sobriety Tests were not administered, or the tests were administered, but you can prove you passed all of them, or were unable to because of your specific disability.
Possession of Marijuana Paraphernalia (Cal. Health & Safety Code § 11364)
Share Cal. Health & Safety Code § 11362.765 with your attorney. You and your lawyer should argue that while Health & Safety Code § 11364 is not specifically exempted in S.B. 420, if you are a qualified patient using the paraphernalia to administer medical cannabis to yourself, you qualify for S.B. 420's exemption, and it would be illogical to allow you to possess medical cannabis but not a means to administer it.
Manufacturing/Conversion by Chemical Extraction of Concentrated Cannabis (Cal. Health & Safety Code § 11379.6)
Share Attorney General Opinion 03-411 with your attorney. Unfortunately, the law is more complex on this topic than the simple possession of concentrates, and a court may deny you the ability to assert a medical cannabis defense because this statute is not specifically named in S.B. 420.
Additionally, according to an appellate court decision, People v. Niall Bergen, there is a distinction between manufacturing concentrated cannabis with chemicals (e,g, using alcohol, butane, or another chemical solvent) as opposed to manufacturing it naturally (e.g. using pressure, screening, ice water/freezing, butter, or vegetable oil). Naturally manufactured concentrated cannabis is almost certainly protected under the medical cannabis laws, whereas chemically manufactured concentrated cannabis may not be.
Child Endangerment (Cal. Penal Code § 273a)
Presumably, law enforcement found that you have a young child or children, and is asserting that because there was cannabis or plants in the house, you were permitting your child "to be placed in a situation where his or her person or health is endangered," which is criminalized in Cal. Penal Code §273a
You will have to assert that the living environment of the child or children did not endanger their health, that your use of your medicine did not affect your ability to be a good parent, and that you kept your medicine very separate from your children. Here is a list of tips that demonstrate best practices for a responsible patient-parent, and you should highlight any to your attorney that are relevant to your situation.
- When residing in a house with a child, possess or cultivate as little as your condition allows.
- Keep all medical cannabis out of plain sight, ideally in clearly labeled medicinal jars and with other prescription medications, in a place that children cannot access. If you cultivate outdoors, surround your garden surrounded with an impermeable fence that will deny access to children. If you cultivate indoors, do not include lamps or other fire hazards, and secure the garden in a locked room or devise another way to deny access to children.
- If you cook with medical cannabis, clearly label any resultant food products as medicinal, and keep them far away from any children's food.
- Use discretion when medicating, and do not do so when your child is present or in the view of persons who might be looking for a reason to report you to CPS. Specifically, think about medicating when you have several hours open before any interaction with the child or after he/she is already in bed.
- If your child can understand, specifically explain to her/him that the cannabis is your medicine and that it is not for her/him (much like any other prescription medication). Furthermore, let him/her know that your patient status and medicine is a private matter, just like any other medical condition, and that he/she should not volunteer information about it to anyone.
- In a dual-patient-parent household, try to work out a routine with your partner where one parent is always unmedicated in case any unexpected issues arise.
- Never drive with your children in the car after medicating.
- Consider keeping notes for yourself regarding the precautions you have taken, so that you are prepared to inform the court about them if asked.
Health & Safety Code § 11366, 11366.5, 11570, or another California criminal charge
S.B. 420 also specifically exempts medical cannabis patients from criminal sanctions under Cal. Health & Safety Code § 11366 (Maintaining a place to sell marijuana), 11366.5 (Allowing a building to be used for distribution of a controlled substance), & (11570 (Nuisance of building used for distribution of a controlled substance).
If you have a different California criminal charge related to your use of medical cannabis, contact the Legal Services Coordinator to discuss your situation.
No citation or charge after your encounter with law enforcement
Wait and see whether you receive a citation or notice to appear in the mail. Do not reach out to law enforcement, unless there are exceptional circumstances. In the meantime, try not to obsess over the chance that you might be cited and prepare yourself for court in the event that you are charged. At some point in the future, you may want to call the local superior court, to see if they actually plan to charge you, or if there is a warrant out for your arrest.
Medical marijuana confiscated by the police
You may be able to get your property back. See our Return of Property page for details. Here's some information to help you decide when to file your motion.
If a judge dismissed your charges, you can file a Motion for Return of Property immediately (though there is no statute of limitations). If the DA hasn't yet filed charges, or even if they drop the charges, the situation is more complicated. The DA could file or re-file charges for up to 3 years. In truth, after 6 months, the threat is less. If you were within the local guidelines, or have a written exemption from the guidelines, you are probably safe to file a Return of Property motion. Otherwise, you'll need to weigh the benefits of getting your property back with the risk of the DA filing charges in retaliation.
Return of non-medical cannabis-related property
In many cases, law enforcement confiscate non-medical cannabis property, such as money, patients' recommendation, State ID card, medical records or other personal documents, cellphones, cultivation equipment, soil, & lights. Because law enforcement does not usually consider these items to be contraband, it is often easier to patients to retrieve them without court proceedings. You might want to try making a trip to the Police Property Clerk and attempting to negotiate to get these items back more immediately while preparing a Motion for Return of Property to address the confiscation of your medicine, and, if necessary, non-medical cannabis property.
You should consider filing a complaint if law enforcement officers acted against police procedure or treated you particularly harshly or inappropriately, including leaving you in a stress position that inflamed your condition, denying you access to non-marijuana medication, verbally insulting you, or confiscating your medicine even after you showed them an up-to-date recommendation.
So, what can I file?
In order to discourage the specific law enforcement agency from repeating the inappropriate conduct that you were subject to in the future, you should think about filing a complaint with the appropriate level of government (State, county, local) that oversees that law enforcement agency. ASA actually won a lawsuit against the CHP for their harassment of patients, and we forced CHP to settle and change to a gold-standard police policy. Here is the Citizen's Complaint form to file if CHP has not abided by their policy, and please help ASA track CHP compliance by contacting our Legal Services Coordinator at [email protected].
If you instead dealt with local Police Department or the county sheriffs, you will have to do a little research. First Google the website of the police force itself, and do a search on the site for a complaint form (e.g. the Oakland P.D. or L.A. County Sheriffs) or a helpline, which you can call to ask about the complaint procedure (do not give your name at this point, you do not need to until you decide to file the complaint). If that does not yield any information, you can also Google the website of the governing town/city or county, and call them to ask for help.
You should also consider filing a Motion for Return of Property to get your medicine back, and attempting to expunge your criminal records. If many motions are filed, local Superior Court judges may notice the time being spent by these types of cases, and urge law enforcement to stop seizing medical marijuana.
However, you should also know that there is always the possibility that the D.A. will file retaliatory charges as a result your filing a complaint, a motion for Return of Property, or moving to expunge your records. Thus, if you are not prepared to have to go through court to dismiss charges against you, and you do not think you have the evidence to do so, maybe it is best to lay low, and not take any of these actions. However, if you have an up-to-date recommendation, were under the guidelines, and think any possible case against you will get dismissed, that you should strongly consider standing up as an activist and filing these papers.
Can I file a civil suit? What if law enforcement used excessive force and caused me significant damage?
Because of the immunities that law enforcement often enjoy, it is not likely that you will be successful in obtaining damages as the result of a civil suit, but there are a few cases where patients have won a monetary judgment. For instance, if law enforcement does something like force you to destroy your plants or paraphernalia, you may have the right to sue them to recover damages, as David Williams did with ASA's help, in Butte County. ASA does not have the capacity currently to work on any more of these types of suits, but if you think there is evidence of police misconduct and that it is likely that you have a cognizable civil claim for excessive force or another civil rights violation, you should file a tort claim letter with the governing town/city or county of the law enforcement agency. The tort claim letter must be filed with the appropriate agency no later than six months after the date of the incident (not the end of the criminal case).
After filing the tort claim letter, summarize your claims in a letter of several paragraphs, and shop it to attorneys who specialize in this area of the law. You can look for a lawyer using Martindale.com or trying search terms on Google such as "civil rights", "police misconduct", excessive force" and "lawyer" and "Your Region". Here is a helpful analysis on police misconduct claims by John J. Davis of Pierce, Davis & Perritano, LLP.
Here are some tips if the police are harassing you.
- Because you expect continued law enforcement encounters, you should make sure that you stay under the local guidelines if your condition allows, and definitely approach your doctor to discuss a written exemption if your condition forces you to have more than guidelines allow.
- You should also think about getting a State ID Card, as, even though they are not mandatory and cost extra money, they can be very helpful in a law enforcement encounter, and if you are under the guidelines and law enforcement successfully checks your ID Card on the 24-hour hotline, you are at least supposed to be let go with your medicine.
- You can file an official complaint with each instance of harassment, although you should always be aware of possible retaliatory charges and further harassment.
- Finally, a concrete and broader action that you can take is to join together with other patients in your town or county to try to force your law enforcement agency to adopt a police policy similar to the CHP policy or the Attorney General's Guidelines. First, do some research and find out if your Town/City Council or County Board of Supervisors have the ability to make binding changes to police policy or simply pass resolutions that encourage changes. Then, check here for your local California chapter to try to get them engaged, and contact our Field Coordinator at [email protected] to discuss your organizing strategy. Think about creating coalitions to build political pressure on the Councilmembers/Supervisors to pass a resolution (binding or non-binding) that encourages a change in policy.
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