(Archive?) Tip of the Month Archive Tip of the Month Archive

From: http://americansforsafeaccess.org/tip-of-the-month-archive

To Be Completed?

 

As the end of this outdoor cultivation season comes to a close, patients are assured of the high quality and availability of their medicine throughout California. In order to ensure safe access for patients across the state, it is important to protect your garden from theft & vandalism. Based on the calls ASA’s hotline receives, our community faces more break-ins during harvest than any other time of the year. Here are some tips on safe gardening: 

  • Use common sense. Fewer plants attract less attention from thieves. Be realistic about the amount of cannabis you will need.
  • Compost or eliminate trash off-site in order to keep knowledge about the size of your garden to a minimum. 
  • Use extra odor controls during this time of year. 
  • Only invite people you trust to your gardening site. Having gatherings where friends-of-friends are welcome greatly increases the risk that someone will divulge information about your garden to the wrong person. 
  • Be a good neighbor. If your neighbors trust and respect you, they’re much less likely to gossip about you and your activities.

If you are subject to theft or vandalism, you may want to involve law enforcement. While you are within your rights as a patient in California to cultivate your medicine either individually or collectively, it is important to remember that federal law still prohibits any type of cultivation, distribution, or possession of cannabis for any reason. Keep in mind that local law enforcement may not agree with California’s medical cannabis program, and may contact federal law enforcement. It is a hard decision to make, and involves a lot of variables. Please consider calling ASA’s hotline to discuss your options.For assistance or more information on this matter, please contact ASA’s legal hotline (legalsupport@safeaccessnow.org or 510-251-1856)

 

Patients should avoid possession of firearms as there are typically additional penalties for the possession, use, and cultivation of cannabis when firearms are present. “Any person who, during any drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall:

  1. Be sentenced to a term of imprisonment of not less than 5 years;
  2. If the firearm is brandished, not less than 7 years; and
  3. If the firearm is discharged, not less than 10 years."

Although the U.S. Constitution confers a right to carry firearms, and state law allows for medical cannabis cultivation, we have seen many patients face extreme legal consequences for having firearms in addition to plants. ASA strongly advises that if you are a medical marijuana patient, do not carry or keep firearms on your property.

For assistance or more information on this matter, please contact ASA’s legal hotline (legalsupport@safeaccessnow.org or 510-251-1856).

 

Landlords, maybe you’ve been unsure about your rights and responsibilities, and are worried about renting to patients. Americans for Safe Access hears from tenants and landlords regularly and we’d like to clear a few things up!

Unfortunately, in California there are no explicit protections for patients who are tenants; patients who rent are often passed over as tenants or evicted for using the medicine that works best for them. Often, it isn’t because the landlord is passing judgment, but rather they have concerns about civil or criminal liability. While medical cannabis is legal at the state level, there continues to be no medical defense to possession or cultivation of cannabis at the federal level. Landlords sometimes worry that they might lose their property or be held criminally responsible for their tenant’s actions.

Landlords who support medical cannabis should rest easy. ASA has not heard of any forfeiture actions against residential landlords of patients in California; similarly, criminal liability has never been assessed against a landlord renting a residence to a patient. While the risk may seem high, even if a landlord should face civil or criminal charges, there are several successful defenses and legal resources available to landlords.

Now that you know the facts, what should you to rent to patients in California? First, remove any lease language that references violations of federal law. Next, call your federal lawmakers and tell them you support medical cannabis and hope that they will support and possibly co-sponsor the Medical Marijuana Patient Protection Act currently before the House of Representatives. Next, consider advertising vacancies at dispensaries, ASA chapter meetings, patient listservs or chat rooms, or other place where patients can be found. Finally, while negotiating the terms of the lease, be clear about your expectations as a landlord, but take into account the unique needs of patients and ask questions about anything you are unsure of.

Feel free to contact ASA’s legal hotline (legalsupport@safeaccessnow.org or 510-251-1856) for more information, and thank you on behalf of patients across the state!

 

Many patients in California enjoy regular, safe access to medical cannabis. That is a victory; however, hundreds of thousands of patients and providers across the state still struggle daily with the issue of access. If you happen to live in one of the areas where access is still a problem, remember that Americans for Safe Access is here to help!

Local regulations govern much of our daily lives, ranging from whether or not our potholes have been fixed to how, where, and when we can access the medicine our physicians have recommended. Even if you have never participated in local government before, if you find yourself in an area without access, it is time to get involved! If your area has a moratorium, ban, or no regulations related to Medical Cannabis Dispensing Collectives (dispensaries), you hold the power to change it! Get to know the structure of your City Council and Board of Supervisors, attend a meeting, find out who might be a champion, ally, or supporter. Use ASA’s Policy Shop & Activist Training Center to determine a course of action. Legal dispensaries don’t just fall from the sky, they are the work of citizens just like you who worked hard to change their local regulations.

And, finally, if you live in an area that has dispensaries, keep in mind that federal law completely bans the use of cannabis, and if a patient or provider is charged with possession, manufacture, or distribution of marijuana in federal court, they WILL NOT be allowed to mention their illness or their state’s medical cannabis laws during trial, and may end up serving long sentences in federal prison. Call your Congressional Representative AND both of your Senators and let them know that you support the three medical cannabis bills introduced by Representatives Frank, Polis, and Stark; urge your Representative to co-sponsor the bill, and ask that your Senators introduce matching language in the Senate. Help us work toward eliminating the need for monthly legal tips by supporting changing our cities’, counties’, and federal government’s unjust medical cannabis laws!

More information about the Policy Shop & Think Tank

More information about ASA’s Online Activist Training Center

 

While your state may recognize your right to use medical cannabis, your insurance company most likely wants to steer clear of the issue. Your insurance carrier will not cover medical cannabis, and asking them to cover it or reimburse you for your expenditures may lead to trouble.

If your health or life insurance companies find out that you use medical cannabis, you may have trouble getting coverage in the future. ASA has heard from many patients who have had medical claims denied, simply because they had used medical cannabis in the past. In addition, ASA has heard from many patients who have been denied insurance coverage because of their past status as a medical cannabis patient.

It is important to stay within the law and have a recommendation from a physician. It is also against the law to hide medical information from your insurance provider. The best way to navigate this sticky situation is to only give the insurance company the information they specifically ask for. Do not volunteer information about your medical cannabis use, and do not ask them to cover your medicine or to reimburse you for expenditures related to your medical cannabis. If they ask you if you use “illegal drugs” it is NOT a lie to say no. Medical cannabis is NOT an illegal drug, it is a medication that your physician recommended and your state provides legal protection for. If the insurance company does not ask you specifically about medical cannabis, do not volunteer that you are a patient, as they may use this information against you in the future.

If you have already run into trouble with your carrier, please let ASA know so that we can help. In addition, if you’ve had a good experience with an insurance provider, please let us know so that we can provide this information to other patients. Please call our legal hotline at 510/251-1856 or email legalsupport@safeaccessnow.org

 

Patients in California can have a primary caregiver who is legally able to assist them in the cultivation, procurement, and use of their medical cannabis. Patients do not have to file any paperwork in order for their caregiver to be protected from legal action. In order to keep your caregiver safe, though, it’s important to understand California law.

The language of California’s law requires that any assistant comes from a “Primary Caregiver.” A primary caregiver is someone who is responsible for more than just the medical cannabis needs of the person they are assisting. Responsibilities can include trips to the doctor, assisting with grocery shopping or other errands, helping with personal finances or a counseling-type role in the patient’s life. Due to the word “primary,” a patient can probably only have one primary caregiver; an exception to this might be a situation where a parent and a spouse are sharing the responsibilities of caring for the patient.

We recommend that your primary caregiver carry a copy of your recommendation to use medical cannabis, as well as a copy of a Caregiver Agreement.

While there is no legal requirement to have a Caregiver Agreement, this document can demonstrate to law enforcement that you are doing your best to follow the law.

Patients, make sure your primary caregiver understands their rights and responsibilities, and the two of you may want to take a look at the legal section of ASA’s website so that each of you is prepared in the case of a law enforcement encounter. If either you or your primary caregiver run into trouble or have any questions, encourage please contact ASA’s Legal Hotline at 510/251-1856 x304 or email legalsupport@safeaccessnow.org

 

In California, medical cannabis patients have the right to cultivate their own medicine. Current law is murky on total numbers, so we’ve developed a few tips to help you make good choices and stay safe in your garden.

Patients are allowed to cultivate individually, they are able to have a designated primary caregiver cultivate on their behalf, and/or patients and primary caregivers may cultivate collectively. A cultivation collective in the state of California is a group of patients who have decided to share resources, labor, and medicine with each other. It is up to the collective how to organize and what requirements of each member should be; it’s best to have a collective agreement, as a way to show law enforcement that you are taking all the steps you can to remain within the limits of the law. Check out our collective agreement here: http://safeaccessnow.org/article.php?id=5639

After filling out and signing the collective agreement, make copies of it and post the copies and copies of each member’s recommendation. If a member is a primary caregiver, it’s best to have a copy of the recommendation belonging to the patient they’re assisting as well as a caregiver agreement (found here: http://safeaccessnow.org/article.php?id=5662).

Whether operating as a cultivation collective or on their own, patients and primary caregivers should mind the numbers of plants they are cultivating. While it’s unclear what numbers of plants are “too many,” there are a few things to keep in mind. Patients have to show that they are cultivating just enough to supply their own personal medical use, which is hard to determine. Take a look at your county’s guidelines, which can give you an idea of what law enforcement might be using as a guide. It’s also best to NEVER cultivate more than 99 plants (TOTAL) at any location, as 100 plants triggers federal mandatory minimum sentencing, making your garden much more attractive to federal law enforcement.

 

Late last month, California State Senator Mark Leno introduced SB 129, an ASA-sponsored bill to protect the employment rights of patients. The bill would prevent employers from firing employees, or prevent them from refusing to hire new employees simply because they are medical cannabis patients. Do not be fooled, however, by the media hype: until the bill passes & is signed into law, your job is still at risk. California patients cannot sue an employer if they were fired or not hired because of their use medical cannabis.

Until the bill passes, if you are a patient who is in a non-safety-sensitive position, and your employer has no probable cause to administer a drug test (such as your involvement in an accident or injury), and you have not previously agreed to drug testing as a condition of your employment, then you may refuse to take a drug test when asked by your employer.

While Senate Bill 129 does not require employers to allow the use of medical cannabis at work, it is a huge step in the right direction. Contact your state Senator today to encourage them to support and/or cosponsor SB 129!

…and remember to keep ASA in the loop—if you or your friends or colleagues have had trouble with an employer due to their status as a medical cannabis patient, call our legal hotline at 510/251-1856 x304 or email legalsupport@safeaccessnow.org.

 

During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. Under the 6th Amendment to the U.S. Constitution, “in all criminal prosecutions, the accused shall enjoy the right [...] to have the Assistance of Counsel for his defense.” A lawyer can help you navigate the ins and outs of the legal system. It can be very easy to waive rights accidentally, and a lawyer can make sure that you preserve all your rights.

It is your right to have an attorney represent you in a criminal case. Once you invoke your right to counsel and your wish to remain silent, all formal questioning by the police must stop.

I want to see a lawyer.

Law enforcement is great at gathering information and will use every trick in the book to get you to open your mouth. Assume that everything they’re telling you is a trick. Then use what you’ve learned and say:

I want to see a lawyer.

Lawyers spend years in school and in practice learning about the law. Even if you know your basic rights, it is still quite easy to incriminate yourself without even realizing it. Ask for a lawyer,and then stop talking.

Even if you have done nothing wrong and have nothing to hide, ask for a lawyer. Flex your rights! For more information on how to deal with law enforcement, check out10 Rules for Dealing with Police

…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at 510/251-1856 x304 or email legalsupport@safeaccessnow.org.

 

During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. One method is to question you, and they will try any method they can to get you to talk. Under the 5th Amendment to the U.S. Constitution, “No person shall be… compelled in any criminal case to be a witness against himself….”

It is your right to remain silent to keep from incriminating yourself in a criminal case. In order to protect your rights later, you must say:

I choose to remain silent.

It seems a little silly, but that’s what you must do. If you are in custody, it is your right to remain silent, and it’s best to exercise that right and, also, ask for an attorney. Law enforcement is great at gathering information and will use every trick in the book to get you to open your mouth. Assume that everything they’re telling you is a trick. Then use what you’ve learned and say:

I choose to remain silent

And, finally,REMAIN SILENT. Remember that they’re asking you questions because they need more information. It is not your responsibility to help them gather it. Exercising your right to remain silent may keep you from facing charges down the line.

Even if you have done nothing wrong and have nothing to hide, it is your right to remain silent. Flex your rights! For more information on how to deal with law enforcement, check out10 Rules for Dealing with Police

…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at 510/251-1856 x304 or email legalsupport@safeaccessnow.org.

 

During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. One method is to search you—your pockets, your bag, your car, your home. Under the 4th Amendment to the US Constitution, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

It is routine during an encounter for an officer to ask (or tell) you to empty your pockets, take a look around inside your bag, your car, or your home. You have the right to refuse a search. Searches are generally only allowed if they have a warrant, you are under arrest, or they have your permission.

If a cop says “empty your pockets” you can answer “no.” If they look in your pockets anyway, say the magic words:

I do NOT consent to a search.

If during a traffic stop, an officer asks to look around your car, you can answer “no.” Even if they start digging around your car, say the magic words:

I do NOT consent to a search.

If law enforcement shows up at your home, you can step outside, shut and lock the door behind you, ask to see a warrant, and refuse them entry into your home. If they go into your home with OR without a warrant, say the magic words:

I do NOT consent to a search.

Even if they have a warrant, say the magic words…if a judge later decides that the warrant should not have been issued, but you gave permission, then anything found during the search can be used against you. Also, just because they have a warrant doesn’t mean you have to help them search—nothing says “I did NOT consent to a search” like a door that’s been kicked in or a safe that’s been drilled open.

Even if there is nothing incriminating on your person, in your bag, in your car, or in your home, it is your right “to be…secure…against unreasonable searches….” Flex your rights! For more information on how to deal with law enforcement, check out10 Rules for Dealing with Police

…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at 510/251-1856 x304 or email legalsupport@safeaccessnow.org.

 

Signing a lease means you have read and understand the requirements of the legal contract. Most leases contain specific clauses limiting your landlord's access to the rental property. However, with proper notice, landlords can inspect the property for maintenance needs and to assure you are in compliance with the lease. Closely inspect this clause of your lease and be ready to comply.

Landlords may only enter your premises without permission in the case of an emergency, unless you run a business that is open to the public. Any attempt by your landlord or maintenance personnel to enter your residence without meeting the terms stated in the lease should be firmly but politely refused. Attempts to exclude any person listed on the lease should be immediately reported to your attorney, as your landlord has no right to exclude you from the premises without going through proper eviction proceedings.

Some leases may include prohibitions on use, cultivation and distribution of controlled substances, which likely includes medical marijuana. Be aware that most leases include a clause that prohibits any activity illegal under state OR federal law. If your lease includes this provision, your landlord has the ability to evict you for cultivating OR even medicating on the premises. To avoid confrontation and hassle, be a good neighbor, and quietly go about meeting your medical marijuana needs.

 

Recently, some news outlets and bloggers have been talking about traveling on planes with medicine. While TSA & airport officials may have stated a relaxing of their own "policy" regarding medical cannabis, note that these officials mention turning patients over to local law enforcement officials.

There are currently 2 California patients who have faced state charges & convictions for flying with medicine. In addition, it's important to remember that there are plenty of opportunities in airports and on planes to interact with federal law enforcement, and there is NO medical defense to possession, transportation, or trafficking charges at the federal level. Federal fines are steep, and these types of charges may also lead to jail time.

It's best NOT to fly with medicine, EVEN if your flight never leaves your home state.

Also, keep in mind that most medical marijuana states do NOT recognize patient status for travelers (except RI, MI, ME, & MT). Just because you are a CA patient, that does NOT make you a qualified patient elsewhere.

For more information, please feel free to contact ASA's legal hotline at 510/251-1856 x304 or legalsupport@safeaccessnow.org.

 

Patients and caregivers are legally allowed to transport medical marijuana in California.  Unfortunately, however, patients are still harassed by law enforcement on a regular basis.  When you are driving with medicine, it's best to keep it locked in the trunk.  If you do have a law enforcement encounter,  it is your right to refuse a search.  It is also your right to remain silent and not provide information about your possession or consumption of marijuana.  If your medicine is found by police, provide the officer with your doctor's recommendation or California ID card (remember, these are the two documents that legally protect you).  Travel only with as much medicine as you need, as larger quantities of marijuana tend to make law enforcement uncomfortable.  Even well-intentioned law enforcement officers make mistakes about the law sometimes and you may end up having to defend against charges.

If you do have a law enforcement encounter (good, neutral, or bad), please call our legal hotline at 510/251-1856 x304 or email us at legalsupport@safeaccessnow.org  and include:

  • Your next court date
  • How much medicine was confiscated
  • What charges you may have pending
  • County in which incident took place
  • Law enforcement agency involved
  • Date of incident

Contacting ASA about your experience helps us track what is happening around the state, and helps us determine how to best help patients preserve their rights.

 

During the Democratic primary campaign, then-Senator Obama promised not to use federal funds to go after medical marijuana patients. Later, during the campaign for President, he reiterated this promise. Shortly after his inauguration, dispensaries were raided. Patients and advocates spoke up and let the White House know that voters expected the new President to keep his promises, and he sent his Attorney General and Press Secretary out with messages that raids were a thing of the past.

From February to October, ASA tracked dozens of raids that were executed exclusively by, or with the direct assistance of, the federal government. In October 2009, ASA met with officials from the Department of Justice, and 6 days later a memo was issued by the Deputy Attorney General to the U.S. Attorneys saying that prosecuting patients who are following their own state's medical marijuana laws is a waste of resources.

Since the issuance of this memo, however, laboratories that test medical marijuana in Colorado were raided by the DEA; several medical marijuana patients' homes were raided in Hawaii, several federally-assisted raids and enforcement actions have happened in California and Colorado. There are defendants in California and Colorado facing federal cultivation and possession charges. The federal laws have not changed--marijuana is still illegal under federal law, and no mention of "medical use" is allowed at trial. At least two of the raids we know about were the direct result of media attention. Stay safe and be aware that being the public face of medical marijuana may bring more than you bargained for.

 

Being on probation or parole can be a very frustrating experience, as intimate details of your life are scrutinized closely by government officials. For probationers, this process starts with prosecutors and judges who seek to impose as a condition of probation that qualified patients may not use or possess marijuana while on probation.

In these cases, the courts of appeal have distinguished between patients who are on probation for offenses relating to marijuana (and other drug use) versus those whose underlying offense was not violent and did not involve the use of drugs or alcohol. For the former, appellate courts have generally upheld probation conditions restricting medical marijuana use on the theory that such conditions are reasonably related to the underlying offense, so they serve a legitimate rehabilitative purpose. By contrast, in People v. Tilehkooh, the court struck down a probation condition prohibiting medical marijuana generally due to its prohibition under federal law because the underlying offense had nothing to do with marijuana.

For parolees, the issue is more clear-cut. As of this writing, the California Department of Corrections has a policy that allows medical marijuana patients to use their medicine while on parole, so long as they provide their parole officer a copy of a state-issued medical marijuana identification card before obtaining possession of the marijuana. A printed copy of this policy, which you can give to your parole officer along with your ID card, can be found Here