Attorney and Client Guide to Medical Marijuana

As you may have heard, these are exciting times in the medicinal marijuana industry. California has now started to implement the Medical Marijuana Regulation and Safety Act (MMRSA).

Earlier this year, Governor Jerry Brown signed three bills three bills that make up MMRSA: AB 243, AB 266, and SB 643. The basic foundation of MMRSA is that no person shall engage in commercial cannabis activity without possessing both a state license and a local permit, license, or other authorization.

The new law went into effect on January 1, 2016. However, the State has said it will need until January 2018 to set up the necessary agencies and programs including the Bureau of Medical Marijuana Regulation, a “track and trace program”, and various environmental regulations before they actually begin issuing licenses. In the mean time, local governments may choose to adopt new ordinances to permit or license local businesses in preparation for State licensing. Some local jurisdictions that have already started outlining their application process include Humboldt, Trinity, and Sacramento counties.

Additionally, MMRSA provides that the legal protection to patient collectives and cooperatives, Health and Safety Code 11362.775, shall sunset one year after the Bureau of Medical Marijuana Regulation posts a notice on its website that licenses have commenced being issued. After that date, all cannabis collectives will have to be licensed, except for individual patient and caregiver gardens serving no more than five patients.

In 1996, California voters approved Proposition 215, the Compassionate Use Act (CUA), allowing medical marijuana patients and their caregivers the right to cultivate and possess cannabis for medical use.

Unfortunately, interpreting Health & Safety Code provisions that set the CUA into law has proven to be both extremely complicated and constantly changing.

Issues such as identifying patients and their caregivers, cultivating medical marijuana, and returning property seized by law enforcement officials are continually being refined by case laws as they work their way through our legal system.

To further complicate matters, the federal government still doesn’t recognize the difference between medical and recreational use of marijuana, and, even within the state, regulations can vary widely between cities, counties, and multi-jurisdictional agencies.

So, where does that leave law-abiding Californians who have need of medical marijuana?

Here are a few of the things we do know:

Patients and their caregivers have the right to possess or grow an amount of cannabis consistent with the patient’s medical needs, including treatment of cancer, anorexia, AIDS, chronic pain, glaucoma, or any other condition for which marijuana provides relief. (H&S Code 11362.5)

A few years ago a law was passed by the legislature, State Bill 420, also called the Medical Marijuana Program. That law Health and Safety Code Section 11362.77, created limits of twelve immature plants, six mature plants and 8 oz. of dried flowers. Patients and caregivers were limited to growing and possessing those amounts. However, those limits in that law, were declared illegal and unconstitutional in the Kelly Case by the California Supreme Court. The court found those limits to violate the Compassionate Use Act: also known as Proposition 215. That Proposition passed by the voters, became a part of our constitution and it has no limits to the amounts that patients and caregivers can grow for their own personal medicinal use.

The Ninth Circuit held that federal judges should enforce § 542 of the Consolidated Appropriations Act by stopping federal prosecutions for conduct that is authorized by state medical marijuana laws. (in United States v. McIntosh)

In the recent case regarding Marijuana County Ordinance, the court held that a local ordinance making cultivation or storage of medical marijuana a misdemeanor was inconsistent with the Medical Marijuana Program (MMP) provision stating that certain persons shall not be subject to arrest for cultivation or possession of medical marijuana in an amount established pursuant to the MMP, Cal. Health & Safety Code 11362.71(e). Kirby v. County of Fresno (2015), 242 Cal. App. 4th 940, 195 Cal. Rptr. 815.

The California Court of Appeal stated that “Neither the Compassionate Use Act nor the Medical Marijuana Program grants . . . anyone . . . an unfettered right to cultivate marijuana for medical purposes. Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute.” (Browne v. County of Tehama, 213 Cal. App. 4th 704 (2013).

“Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land … ” City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4th 729 (2013)

Once a patient has a doctor’s approval or recommendation, it does not expire, even if there is an expiration date. (PEOPLE V. WINDUS [2008] 165 Cal. App. 4th 634)

When a felony defendant proves he or she is a qualified medical marijuana patient, the case should be dismissed pre-trial. (PEOPLE V. MOWER [2002] 28 Cal. 4th 457)

Persons who have had their medical marijuana seized by law enforcement officials can get their medical marijuana returned to them by providing a verified statement from their doctor. (THE CITY OF GARDEN GROVE V. THE SUPERIOR CT., FELEX KHA [2007] 157 Cal. App. 4th 355)

Transportation in your vehicle of a reasonable amount of medical marijuana is permitted. (PEOPLE V. WRIGHT [2006] 40 Cal. 4th 81)

It’s important to remember that despite the passage of the CUA, it’s illegal to knowingly have marijuana in your possession unless legally authorized for medicinal purposes.

Possession of less than an ounce is a misdemeanor, and, with proper identification, can be handled with a citation, similar to a traffic ticket. The maximum penalty is a fine of $100, plus court assessments (which can easily triple the cost). No jail sentence or probation can be imposed. Persons under the age of 21, however, will lose their driver’s license for a year, if convicted.

Possession of more than an ounce of marijuana is still a misdemeanor, but can result in a fine of up to $500 and a maximum sentence of up to six months in the county jail. (First-time offenders, however, almost never go to jail. Probation is usually granted on condition of a small fine or community service.)

Possession of concentrated cannabis (hashish) can be treated as either a misdemeanor or a felony, with possible sentencing of up to three years in prison.

Possession of any amount of marijuana with the intent to sell is a serious charge with prison sentences of up to three years and fines of up to $10,000.

In short, it’s to your advantage to avoid problems with the law and, when dealing with medical marijuana issues, make sure you document your efforts to follow the rules.

Finally, use common sense at all times: Never drive under the influence of marijuana; don’t cultivate more than what you need; respect your neighbors; never physically interfere with a law officer, and always remember that even legal marijuana does not mix well with alcohol or firearms.

I recommend you send me a copy of your medical marijuana prescription, along with your name and address, for safekeeping.

Remember, if you do run into trouble with law enforcement officials, it’s best not to talk with them, if your attorney’s not present. Just say these words: “I’m going to remain silent. I want a lawyer.”

Currently, I am offering all of my former clients free consultations regarding MMRSA and my firm’s new package that will help keep you in compliance or help you start your new commercial marijuana business. Please give me a call at 520-223-5100 to schedule your free consultation with myself.

MEDICAL MARIJUANA VICTORIES BY ERIC ALAN BERG & ASSOCIATES:

In People v. Levin, our client was arrested and charged with growing marijuana for sale. He had 40 seedlings in a tiny greenhouse. The defendant had fallen from a roof years before and broken his back, leaving him bedridden. After several surgeries, his doctor prescribed marijuana. This enabled him to discontinue other pain killers and got him on his feet, leading a fulfilling life as a father and husband. The prosecutor claimed Levin would eventually have more marijuana than he could use; however, Eric Alan Berg & Associates produced a medical marijuana expert who convinced the jury to acquit the defendant of all charges.

In People v. Lane, our client was also accused of growing marijuana for sale. He was involved in an association with 35 other patients to grow marijuana at his home. Berg & Associates convinced the court to suppress evidence of several hundred pounds of marijuana that police had seized and destroyed in violation of Health and Safety Code Section 11479. It is extremely unusual that evidence of such a large amount of marijuana would not be presented to the jurors. Our client was eventually found not guilty.