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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: [email protected]

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

MEDICAL MARIJUANA

Long Beach's criminal law specialist, attorney Matthew Kaestner, is a Long Beach criminal lawyer who will answer your questions regarding an arrest for a marijuana crime. Reach him directly at (562) 437-0200. Mr. Kaestner has achieved many dismissals for medical marijuana patients and providers charged with felony and misdemeanor crimes. He possesses expert knowledge of the Compassionate Use Act and the Medical Marijuana Program.

The medical use of marijuana first became legal in 1996 when California Voters passed Proposition 215 on November 5, 1996. Patients were allowed to use in conjunction with a doctor's recommendation. Immediately thereafter, dispensaries sprang up everywhere in California including Long Beach. The federal government began raiding local dispensaries for violating federal law. When President Obama was elected, 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 captured local police acting like thugs during raids.[View video]

After the ban by the City of Long Beach, seven collectives were raided on October 10, 2012 and 40 arrests were made for allegedly violating of the Long Beach Municipal Code. Since the Long Beach code was a misdemeanor only, misdemeanor charges were brought against owners and employees. Dispensaries, however, were often trashed during raids with money, computers and equipment destroyed or confiscated.

On May 6, 2013, the California Supreme Court ruled that cities could outright ban dispensaries. 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.

On November 8, 2016, Long Beach voters passed measure MM with 59% of voters in favor of returning dispensaries to Long Beach. At the same time, voters approved Measure MA, allowing for medical marijuana sales to be taxed at 6 to 8 percent, as will each step in the supply chain process. Recreational marijuana will be taxed similarly, with rates between 8 to 12 percent in addition to a $12 to $15 tax per square foot of grow space.

On September 28, 2017, the City of Long Beach held a public lottery to what applicants would be eligible to obtain a Medical Marijuana Dispensary Business License. Ten dispensary licenses were awarded, resulting in a total of 32 dispensary licenses to be issued in the city. Dispensaries operating without a city license will no doubt continue to be prosecuted.

Looming in the background is the Trump administration. It is open to speculation whether new Attorney General Jeff Sessions’ animosity towards marijuana will lead to more raids of medical marijuana farms or dispensaries in California.

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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.

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 don’t want to disclose their status as patients nor provide their confidential information. 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 from his job because he tested positive for marijuana at work. (Gary Ross v. Ragingwire Telecom. Inc., decided January 24, 2008.)

On November 8, 2016, California voters substantially liberalized marijuana laws and made recreational possession and cultivation of marijuana by persons 21 and older legal in many circumstances. (Read “Adult Use of Marijuana in California” page.)

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B. PROSECUTION OF MEDICAL MARIJUANA PATIENTS

When the Compassionate Use Act and Senate Bill 420 were passed, both police and prosecutors continued to be hostile towards persons who used marijuana for medical 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

After medical marijuana became legal in California, patients and providers were often prosecuted for violating marijuana laws, tax laws, and city ordinances. The City of Long Beach went back and forth first approving and then banning marijuana dispensaries.

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 thereafter enacted a complete ban of dispensaries.

Voters in the city of Long Beach finally passed Measure MM passed in November of 2016 allowing for as many as 32 dispensaries that will soon be operating legally in Long Beach. Long Beach will likely also have shops selling marijuana for recreational use given the November 2016 passage of Proposition 64 legalizing adult use and cultivation of marijuana in many circumstances.

Dispensaries with our without governmental approval will continue to operate. Web sites such as https://weedmaps.com/earth/us/ca/long-beach/ show where dispensaries in the greater Long Beach area can be found.

To be completely legal, medical marijuana dispensaries must operate inside of California’s medical marijuana laws. 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. 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 argued that tax laws are being misapplied. It is likely that these issues will continue to linger around medical and recreational marijuana dispensaries.

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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 2008 and again in 2016, 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: https://www.acponline.org/acp_policy/policies/supporting_research_therapeutic_role_of_marijuana_2016.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: https://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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