Defending a Medical Marijuana Case in California

The other day I attended a training seminar on defending a medical marijuana case in California.  The training seminar was located in the Public Defender’s office and was open to interns, investigators, paralegals, and was mandatory for attorney’s.  I was very surprised at how many people showed up for the seminar.  I originally pictured a few lawyers in a small room with everyone taking notes.  However, it was just the opposite.  The seminar took place in a large room with a projector and at least a hundred very comfortable lounge chairs.  I looked around the room and could tell I was the only intern within eyesight.  Luckily, I work in the Primary Public Defender’s office, so the presenters were present in the room, whereas others were viewing via podcast. Here is some of the important information I took away from the training seminar.

Americans for Safe Access
Americans for Safe Access (ASA) is the largest national member based organization of patients, medical professionals, scientists, and concerned citizens promoting safe and legal access to cannabis for therapeutic uses and research.  ASA provides legal training and medical information to patients, attorneys, health and medical professionals and policymakers throughout the United States.  They also organize the media support for court cases, rapid response to law enforcement raids, and capacity-building for advocates.  Their successful lobbying, media and legal campaigns have resulted in important court precedents, new sentencing standards, and more compassionate community guidelines.  Their mission is to ensure safe and legal access to cannabis for therapeutic uses and research.

ASA's Patients Rights Project is a result of the outcry for accessible and current legal information on medical marijuana.  Medical cannabis patients and their providers suffer pervasive discrimination in employment, child custody, housing, public accommodation, education, and medical care because of misinformation about the medical efficacy of cannabis and a lack of statutory legal protections.  Furthermore, patients and their care providers are vulnerable to federal and state raids, arrest, prosecution, and incarceration.  ASA's Legal Affairs Department creates, projects, and expands the rights of medical cannabis patients through direct support, extensive monitoring, proactive litigation, education, organizing attorneys, and the drafting of legislation.

Proposition 215
On November 4th, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act (CUA), to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" without criminal penalty.  California Health and Safety Code ("H & S") § 11362.5(b)(1).  Since then, hundreds of medical marijuana patients and those who supply them with the medicine they need have been searched, arrested and prosecuted for marijuana violations, in large part because the CUA has been interpreted in a very obscure manner.  SB (Senate Bill) 420 was passed and then signed into law on October 13, 2003 after recognizing how the CUA was being interpreted.

Section 11357 and Section 11358
Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or verbal recommendation or approval of a physician. (§ 11362.5(d).). 

H&S Code 11362.775 / MMPA
Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact to be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.


*AG Guidelines 2008*
California Attorney General Jerry Brown published guidelines for legally qualified patients and state law enforcement in August 2008, which give specific instruction to medical cannabis patients and law enforcement about how to comply with California's medical cannabis laws.  While these guidelines are not binding in court, they do represent the policy of the state's highest- ranking law enforcement officer as to what rights and responsibilities medical cannabis patients have under existing state law, and what police officers should do to uphold the law.  Publication of these guidelines is a major step forward in the implementation of California law, as they acknowledge that "a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law," provided the facility substantially complies with the guidelines.  The purpose of this report is to help legal medical cannabis patients and their primary caregivers who operate collectives and cooperatives understand and comply with the Attorney Generals guidelines.

*Distribution and Sales*
Accordingly, a collective may not distribute medical marijuana to any person who is not a member in good standing of the organization.  A dispensing collective may credit its members for marijuana they provide to the collective, which it may then allocate to other members.  Members also may reimburse the collective for marijuana that has been allocated to them.  Any monetary reimbursement that members provide to the collective should only be an amount necessary to cover overhead costs and operating expenses.

*Collectives and Cooperatives*
A collective should be an organization that merely facilitates the collaborative efforts of patient members - including the allocation of costs and revenues.  The collective should not purchase marijuana from, or sell to, non-members; instead, it should only provide a means for facilitating or coordinating transactions between members.  Cooperatives are an association of individuals united voluntarily to meet a common goal.  They are generally owned and operated by members of mutual benefit: some members contribute labor, others contribute financially.

*Membership*
Only qualified patients may join.  Medical marijuana is collectively grown for members and owned by members.  Management determines cost of marijuana based on cost of cultivation.  Contributions or purchase of non-marijuana products goes towards cost of cultivation.  Some baked goods may also be available.  A member agrees never to sell or distribute marijuana to non-members.


*Reimbursement and Allocation*
Marijuana grown at a collective for medical purposes may be:
a) Provided free to qualified patients and primary caregivers who are members of the collective;
b) Provided in exchange for services rendered to the entity;
c) Allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses; or
d) Any combination of the above.

Preliminary Considerations
-Searches
-Arrests
-Motions for returning property
-Motions for determination of factual innocence

Pre Trial Proceedings
-Motion to set aside the indictment or information
-"Information Request" to dismiss complaint in furtherance of justice
-Motion to preclude defense under Evidence Code § 402
-Motion in limine to exclude reference at trial to quantities cited in SB 420

Defenses at Trial
-Elements
-Persons included
-Illnesses included
-Recommendation/Approval
  a. need not be in writing
  b. need not necessarily come from patients primary doctor
  c. need not necessarily be obtained prior to the charged conduct
-Expert witness
  a. dosages, yields
-Court support
  a. ASA
-Medical marijuana defenses other than that provided by CUA/MMPA
  a. Mistake of fact defense
  b. Medical Necessity defense
  c. Religious Freedom defense
  d. Vagueness

Below are a few links I created from handouts I was given during the training seminar.  I found them very helpful to understanding the background of a medical marijuana case as well as proceedings. 

How to Defend A Medical Marijuana Patient in California

Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use

Landmark Decisions in Medical Marijuana Law


Based on a presentation and handouts given by the Americans for Safe Access of January 13th, 2011.