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Attorney Matthew G. Kaestner
Long Beach's Criminal Law Specialist
One World Trade Center
Suite 800
Long Beach, California 90831
Phone: 562-437-0200
Fax: 562-983-8041
Email: mkaestner@earthlink.net

Long Beach’s Criminal Law Specialist 562-437-0200

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 for a marijuana crime. Reach him directly at (562) 437-0200. Mr. Kaestner has achieved dismissals for many medical marijuana patients charged with felony and misdemeanor crimes. He possesses expert knowledge of the Compassionate Use Act and the Medical Marijuana Program.

The road to the ending of prohibition of marijuana has been a long and difficult one. After marijuana first became legal to use in conjunction with a doctor's recommendation, dispensaries sprang up everywhere in California including Long Beach. The federal government began raiding local dispensaries that violated federal law. With the election of President Obama, federal raids in California slowed and in 2009, the Attorney General's Justice Department issued a memorandum directing that the federal government would only prosecute persons who violated both state and federal law.

In early October of 2011, federal prosecutors announced a crackdown against California marijuana dispensaries designed to shut operations they claimed were storefront drug dealers. On August 13, 2012, the City of Long Beach enacted a total ban on dispensaries. Dispensary cameras have captured local police acting like thugs during raids. [View video]

Prior to the complete ban in Long Beach, the Los Angeles County District Attorney prosecuted one unlucky dispensary targeted for allegedly operating outside of the Compassionate Use Act. The felony convictions obtained against local collective operators Joe Grumbine and Joe Byron in Long Beach were later overturned and completely dismissed in 2014 after a five year legal nightmare.

After the ban by the City of Long Beach, seven collectives were raided on October 10, 2012 and 40 arrests were made for a violation of the Long Beach Municipal Code. Since the Long Beach code is a misdemeanor only, misdemeanor charges have been filed against owners and employees that are pending in the Long Beach Courts.

On May 6, 2013, the California Supreme Court ruled that cities could outright ban dispensaries. Now, in Long Beach, and other cities that have decided to ban dispensaries, patients will be forced to leave Long Beach, grown their own, or purchase on the black market.

In February of 2016, the Long Beach City Council, having worked since their 2012 ban to find a reasonable plan to allow patients to have access to medical marijuana in Long Beach, voted 5-4 to continue the ban. A successful petition drive has qualified a measure to allow for dispensaries in Long Beach to be place before voters in November of 2016.

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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.)

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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.

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C. PROSECUTION OF MEDICAL MARIJUANA COOPERATIVES

On August 13, 2012, the Long Beach City Council, enacted a complete ban of medical marijuana dispensaries and collectives. The City's previous effort to regulate and tax dispensaries was struck down by the California Court of Appeals in Pack v. Superior Court. The California Supreme Court upheld the right of cities and counties to completely ban dispensaries on May 6, 2013. The city of Long Beach, and the California Supreme Court, has made it clear to patients in need of medical marijuana to "grow your own." In October of 2011, the California Court of Appeals in Pack v. Superior Court held that the City of Long Beach's ordinance including a lottery system, $10,000 plus yearly fees, in city grow requirements, and other aspects of the City's ordinance were "preempted by federal law" and illegal. The city thereafter passed the ban.

The city of Long Beach, apparently is now telling persons in need of medical marijuana to "grow your own."

At one time, the City of Long Beach had over 40 medical marijuana dispensaries. Web sites such as https://weedmaps.com/earth/us/ca/long-beach/ show where dispensaries outside of Long Beach can be found.

Outside of Long Beach, dispensary operators must be wary not to operate outside of state law. The case of People v. Hochandel, cautions 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.

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.

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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

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/

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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. 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 or your loved one.

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Long Beach's Criminal Law Specialist, attorney Matthew G. Kaestner, is a Long Beach criminal lawyer with over 30 years experience in all types of criminal law cases, including drug offenses, murder charges, public intoxication, white collar crimes, all felonies, DUI, domestic violence, assault and battery, and other serious criminal law matters.

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