MEDICAL MARIJUANA
Long Beach's criminal law specialist, Matthew Kaestner, is a Long Beach criminal lawyer available now to answer any questions regarding an arrest or potential arrest for a marijuana crime. He can be reached directly at (562) 437-0200. Mr. Kaestner regularly defends medical marijuana patients and has achieved outright dismissals for those patients who were falsely accused of violating the law, the Compassionate Use Act.
President Barrack Obama and his Attorney General, Eric Holder Jr., initially raised the hopes of medical marijuana patients and the collectives that served them, that federal raids of local collectives would end. In 2009, the Attorney General's Justice Department issued a memorandum loosening guidelines on the prosecution of medical marijuana providers. Holder stressed that the federal government would go after persons who violated both state and federal law. Federal raids that were fairly commonplace under the Bush administration became infrequent.
Unfortunately, federal prosecutors, in early October of 2011, announced a crackdown against California marijuana dispensaries designed to shut down dozens of operations that they claimed were storefront drug dealers.
The Los Angeles County District Attorney has also seen fit to prosecute certain dispensaries that they have targeted for allegedly operating outside of the Compassionate Use Act. The L.A. District Attorney's Office obtained a conviction of clinic operators Joe Grumbine and Joe Byron in Long Beach for operating a collective. The two were convicted only to have their convictions overturned. They are currently facing a re-trial. Opening a collective in Long Beach usually results in harassment by the City of Long Beach for operating without a license. Pressure is also placed on landlords by the city to evict persons operating collectives.
Click directly to your area of interest:
- CALIFORNIA'S MEDICAL MARIJUANA LAW
- PROSECUTION OF MEDICAL MARIJUANA PATIENTS
- PROSECUTION OF MEDICAL MARIJUANA COOPERATIVES
- THE USES OF MEDICAL MARIJUANA
- WHAT TO DO WHEN ARRESTED OR IF YOU NEED MORE INFORMATION A. CALIFORNIA'S MEDICAL MARIJUANA LAW
A. CALIFORNIA'S MEDICAL MARIJUANA LAW
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. 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.
The best practice for patients under the current state of the law 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. (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.)
B. PROSECUTION OF MEDICAL MARIJUANA PATIENTS
Unfortunately, the passage of the Compassionate Use Act and Senate Bill 420, have, even over time, done little to ease the hostility of both police and prosecutors towards persons who use marijuana for medical or recreational purposes.
In Long Beach, activists fought for years to force the police department to formulate a policy regarding citizens possessing and cultivating medicinal marijuana. The department finally adopted a medical marijuana policy on September 21, 2004. Nonetheless, medical marijuana patients continue to be arrested and prosecuted. Long Beach criminal attorney Matthew Kaestner has defended numerous patients in criminal prosecutions who held valid doctor's recommendations when they were cited for possession of marijuana 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 California court decisions have been bad for patients. In November of 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.)
Medical marijuana patients should be familiar with the medical marijuana law, keep copies of the doctor's recommendation with any medical marijuana, and remain silent and request an attorney when accused of any criminal law violations. When arrested, patients should contact a criminal law attorney as soon as possible.
C. PROSECUTION OF MEDICAL MARIJUANA COOPERATIVES
The City of Long Beach currently has approximately 40 medical marijuana dispensaries. Web sites such as legalmarijuanadispensary.com show the various locations of dispensaries in Long Beach. In September of 2010, the City of Long Beach held a lottery to limit the number of dispensaries to 32. A lawsuit filed by a collective that was shut down resulted in major portions of the City of Long Beach's ordinance regulating collectives.
In October of 2011, the California Court of Appeals in Pack v. Superior Court held that the City of Long Beach's ordinance including the lottery system, the requirement of a $10,000 plus yearly fees, the requirement that marijuana for the collectives be grown in Long Beach, and other aspects of the City's ordinance were "preempted by federal law" and were struck down. The trial court must now decide what portions of the ordinance call nonetheless stand. Meanwhile the City of Long Beach is contemplating a total ban on collectives. The City has appealed the appellate court and the matter is pending before the California Supreme Court.
The city of Long Beach, despite the fact its ordinance was struck down, harasses clinics for operating without a license that they refuse to provide. However, prosecutors have only rarely prosecuted collectives that they feel violate state law. On September 22, 2009, a local Long Beach newspaper reported that L.A. District Attorney Steve Cooley had announced the week before that medical marijuana dispensaries are illegal and will be prosecuted. Cooley's statements may have been grandstanding in anticipation of his run for Attorney General. Nonetheless, marijuana cooperatives have continued operating, with only rare prosecutions, notably the recent prosecution of Joe Grumbine and Joe Byron.
In August of 2009, the California Court of Appeals decided in the case of People v. Hochandel, that simple dispensaries may not qualify as a "collective" and can run afoul of California's medical marijuana law. True cooperatives must be nonprofit and must follow the other provisions of the Compassionate Use Act. Setting up a cooperative should not be undertaken without substantial pre-planning to avoid unnecessary legal entanglement.
Now more than ever, it is important to have up to date advice by a Long Beach criminal attorney on how to lawfully run a "cooperative" and avoid prosecution. Federal raids of cannabis clubs by the Federal DEA and the Long Beach Police Department, and local code enforcement officials still represent a threat to persons who operate medical marijuana facilities.
Another issue to confront dispensaries in California is how they will be taxed by the IRS and the state. The state's Franchise Tax Board slapped a 6.5 million dollar tax bill on a Berkeley dispensary. Meanwhile, an Oakland dispensary was subjected to a year long audit by the IRS. Both dispensaries are arguing that tax laws are being misapplied. It is likely that these issues will be lingering in the courts for years to come.
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
Additional information regarding the medical uses of marijuana and the movement to legalize marijuana for medical purposes can be found at the Americans for Safe Access (ASA) website at: http://www.safeaccessnow.org/
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 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.
