MEDICAL MARIJUANA
Long Beach's criminal law specialist, Matthew Kaestner, is available to answer any questions regarding an arrest or potential arrest for a marijuana crime. He is a criminal law attorney available to take your calls directly at (562) 437-0200. In the first two months of 2008, Mr. Kaestner has obtained 3 outright dismissals of marijuana possession cases in Los Angeles County.
What follows is a brief overview of the medical marijuana laws, the resistance of police and prosecutors to these laws, and information about the medicinal use of marijuana.
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A. CALIFORNIA'S MEDICAL MARIJUANA LAW
URGENT UPDATE: On May 22, 2008 the California Court of Appeals declared a substantial portion of California's Medical Marijuana Law to be Unconstitutional. Read this section for details.
In 1996, California voters passed the "Compassionate Use Act," proposition 215. This law provided for patients and their "primary caregiver" to lawfully cultivate and possess marijuana as recommended by a medical doctor. This law is now codified as Health and Safety Code section 11362.5. The Compassionate Use Act made the laws prohibiting cultivation for personal use and simple possession inapplicable to patients. (Click here for the text of H&S 11362.5 and the various laws that prohibit marijuana activity.)
On January 1, 2004, Senate Bill 420 was passed by the California Legislature. This amendment to the Compassionate Use Act was supposed to "to avoid unnecessary arrest and prosecution" of patients and caregivers and "to provide needed guidance to law enforcement." Senate Bill 420, which became Health and Safety Code sections 11362.7 through 11362.83. Section 11362.77 (now declared unconstitutional) provided that: "a qualified patient or primary caregiver" could maintain no more than six mature or 12 immature plants per qualified patient, and possess no more than eight ounces of dried marijuana. Only the "dried mature processed flowers of female cannabis" were to be considered when determining allowable quantities. These amounts could be exceeded if the doctor's recommendation indicated that the above amounts did meet he patient's needs.
However, on May 22, 2008, the California Court of Appeals declared that portion of Senate Bill 420 that became Health and Safety Code section 11362.77 to be unconstitutional. [People v. Kelly, May 22, 2008, Court of Appeals Case No. B195624.] The Court ruled that the 8 ounce and 6 and 12 plant limits were unconstitutional since the Legislature improperly amended a voter initiative without putting the change to a vote of the People. In the Kelly case, the prosecutor had convicted Mr. Kelly by arguing that since he had more than 8 ounces of marijuana, that he had to be guilty of violating the law. The Court of Appeals reversed Mr. Kelly's conviction. The Kelly court ruled that a medical marijuana patient, under the Compassionate Use Act, can possess as much marijuana as his medical need requires.
So, it appears that the Kelly case may have done some good for Mr. Kelly, but may have returned uncertainty to those patients who felt secure that they were within the law by having no more than 8 ounces of marijuana flowers in their possession at one time. It remains unclear as to what effect this decision will have in the future.
The best practice is to have the referring physician state on the recommendation exactly how much marijuana is appropriate for the particular patient.
Senate Bill 420 also required counties in California to issue identification cards to medical marijuana patients who desired them. However, many patients do not wish to disclose their status as patients nor provide the confidential information. In the L.A. County Department of Health charges $153 to issue a card to a patient. The Kelly case did not effect the ability of a patient to get a county issued card. (Click here to full text of Senate Bill 420, now codified at Health and Safety Code sections 11362.7 to 11362.83.)
Medical marijuana patients suffered a set back when the California Supreme Court upheld the firing of a medical marijuana patient who was dismissed because he tested positive for marijuana at work. (Gary Ross v. Ragingwire Telecom. Inc., decided January 24, 2008.) Worse yet, medical marijuana patients continue to be prosecuted in criminal courts in California.
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B. PROSECUTION OF MEDICAL MARIJUANA PATIENTS
Unfortunately, the passage of the Compassionate Use Act and Senate Bill 420, has done little to ease the hostility by both police and prosecutors towards persons who use marijuana. In Long Beach, activists fought for years to force the police department to formulate a policy regarding citizens possessing and cultivating medicinal marijuana. Despite the Department's adoption of a medical marijuana policy on September 21, 2004, medical marijuana patients continue to be arrested and prosecuted. Long Beach criminal attorney Matthew Kaestner has defended three patients in criminal prosecutions in just the first two months of 2008, two of them in the Long Beach court.
It is important for all medical marijuana patients to understand that the Compassionate use act does not provide immunity from arrest or prosecution for medical marijuana patients, even those with a valid doctor's recommendation. The California Supreme Court decided in People v. Mower in 2002 that the law is a defense to a prosecution for cultivation, transportation, or possession of marijuana. The Supreme Court ruled that an accused need only raise the defense and the prosecution must thereafter disprove the defense beyond a reasonable doubt. (People v. Mower, 2002.)
It is also important to understand that a doctor's recommendation can only be used as a defense to the otherwise unlawful possession of marijuana if that recommendation was obtained prior to any contact with law enforcement. (People v. Rigo, 1999.) And although a verbal recommendation by a doctor is legally sufficient under the law, a written recommendation is clearly preferable. The best practice is for patients to keep a copy of the recommendation with them at all times and in any area where medicinal marijuana is being cultivated or possessed.
Not all the news is bad, however. On November 28, 2007, the California Court of Appeals ordered that the City of Garden Grove's police department return marijuana they seized to a medical marijuana patient. The Court ruled that the marijuana must be returned to the patient despite the federal law prohibiting the distribution of marijuana. (City of Garden Grove v. Superior Court.) Thus patients who can prove in court that they are lawfully entitled to marijuana seized by the authorities are now entitled to an order that the marijuana be returned.
A citizen who is prosecuted for possessing or cultivating marijuana can raise the Compassionate Use Act defense without having to prove that a "serious illness" is being treated. Jurors are not allowed to "second-guess" a doctor's determination. (People v. Spark, 2004.)
The best advice to any medical marijuana patient is to be familiar with the medical marijuana law, keep copies of their recommendation with any medical marijuana, and to remain silent and request an attorney when accused of any criminal law violations. When arrested, contact a criminal law attorney as soon as possible.
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C. PROSECUTION OF MEDICAL MARIJUANA COOPERATIVES
Provider's of medicinal marijuana in Long Beach have also come under fire from both the City of Long Beach and the federal government. In 2005, the Long Beach City Council placed a six month moratorium on the issuance of licenses for medical marijuana dispensaries. After the moratorium expired, the City Attorney decided not to issue business licenses to any cooperative. In September of 2007, deputies in the Long Beach City Attorney's Office hinted that the 11 identified cooperatives in Long Beach would be prosecuted for operating without a business license. However, two months later, Robert Shannon, the Long Beach City Attorney, was quoted as saying that his office really had no policy towards the cooperatives, other than that Long Beach would not issue licenses to companies that violate federal law.
Also in November of 2007, Federal Drug Enforcement Agency (DEA) officials raided the Long Beach Cannabis Club, in downtown Long Beach. The DEA has raided cannabis clubs across California and prosecuted owners with violations of federal drug laws.
Cannabis clubs, in order to comply with state law, must be nonprofit. However, beyond that requirement it is difficult for the clubs to determine what they must do to operate so that medical marijuana users have a safe place to obtain their medicine. When the City of Anaheim recently sought to ban the clubs within city limits, a lawsuit resulted that is still pending.
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D. THE USES OF MEDICAL MARIJUANA
Although many people have heard of medical marijuana being used to treat the symptoms of AIDS and cancer, marijuana has, for centuries, been one of the most widely used of the medicinal plants. In 1995, the Journal of the American Medical Association issued support for medical marijuana and called for increased research. The Journal noted that marijuana is remarkably safe and far less addictive than comparable treatments.
For cancer and AIDS patients marijuana can reduce nausea, ease pain, treat insomnia, improve mood and increase appetite. However, medical marijuana is also commonly used to treat chronic pain, migraine headaches, multiple sclerosis, glaucoma, epilepsy, seizures, arthritis, Crohn's disease, fever, neuralgia, cramps and spasms. It can also be used in conjunction with other medications to lessen the side effects or to allow a reduced dosage to be used.
Medical marijuana can be smoked, ingested in the vaporized form, eaten, and applied topically. The amount of marijuana that a patient needs will depend upon the patient, his condition, the method of ingestion, and the quality and type of marijuana. Vaporizing can require twice the amount of marijuana than smoking. Eating marijuana can require 3-5 times the smoked dosage.
In January of 2008, the American College of Physicians released a position
paper entitled "Supporting Research into the Therapeutic Role of
Marijuana." The paper outlines the medical uses of marijuana. The
paper recommends continued research into the medical usages of
marijuana, the re-scheduling of marijuana with other safe therapeutic
substances, and the elimination of sanctions against doctors who proscribe
marijuana within the confines of state law. The paper concludes that:
"Evidence
not only supports the use of medical marijuana in certain conditions
but also suggest numerous indications for cannabinoids. Additional
research is needed to further clarify the therapeutic value of cannabinoids
and determine optimal routes of administration. The science on
medical marijuana should not be obscured or hindered by the debate
surrounding the legalization of marijuana for general use."
The entire paper can be
found at: http://www.acponline.org/advocacy/where_we_stand/other_issues/medmarijuana.pdf
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E. WHAT TO DO WHEN ARRESTED OR IF YOU NEED MORE INFORMATION
Whenever arrested for a marijuana or any offense, it is always wise to remain silent and ask for an attorney. The police are supposed to honor a request for an attorney and cease all questioning, but often don't. An arrest for either a felony or misdemeanor marijuana offense requires that the person arrested be brought before a judge within 48 court hours if he is in custody. Bail can usually be posted for a more immediate release.
Information about medical marijuana is readily available online. The location of marijuana cooperatives in Long Beach and other southern California communities is also available online. If you find yourself or a loved one arrested for a marijuana offense, call Long Beach criminal law attorney Matthew Kaestner directly at (562) 437-0200. Mr. Kaestner can advise you of your rights, and help you take immediate action to defend yourself.
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Long Beach's Criminal Law Specialist Matthew G. Kaestner is a criminal law attorney with over 23 years experience in all types of criminal law cases, including narcotics offenses, murder charges, white collar offenses, all felonies, DUI, domestic offenses, battery, and other serious criminal law matters.
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