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Is there a "Medical" Marijuana Defense in California?

Posted by Dmitry Gorin | May 30, 2007 | 0 Comments

Proposition 215 was passed by the voters in California in 1996, commonly referred to as the Compassionate Use Act. That was followed 8 years later by Senate Bill 420, enacted in 2004. These two propositions have been codified in the California Penal Code section 11362.775 et seq. The federal government does not recognize this law, and thus sales of marijuana under the federal system are criminalized. Unfortunately, the Los Angeles Police Department has decided not to enforce the laws of California, but to act as "de facto" DEA agents. It is this conflict between state and federal laws that leads to abuses of power by the local police. In a recent case handled by the firm, a client had substantial monies and several ounces of marijuana ordered returned to him by the Court, after the D.A. dismissed the case in the middle of a preliminary hearing. The case had substantial problems of proof, as we had the recommending medical doctor ready to testify and the LAPD "expert on drug sales" was not familiar with the provisions of Medical Marijuana laws, packaging, or business operations. In sum, cross-examination of the police officers on the case demonstrated they knew very little about the law. Tagged as: drug addiction and treatment, drug crimes defense, faq


Kelsey H (Com 174) on November 15, 2009 at 5:55 p.m. wrote: Recently under President Obama's administration, the U.S Department of Justice stated there will be no federal prosecution of Medical Marijuana under the Compassionate Use Act. In 1996, California voters authorized the medical use of marijuana when they approved Proposition 215, known as the Compassionate Use Act. The Act allows patients with a doctor's recommendation to grow and possess marijuana for personal use. The law was later expanded to let patients share the drug through collectives and cooperatives. This law however was not recognized under the Bush administration, and possession and use were illegal under federal law. However as of October 2009, the Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws. The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes, thus advancing the rights of states as well as medical marijuana advocates. There is still room for conflict between state and federal laws because there are possible ‘loopholes' in Obama's new medical marijuana drug policy and how it affects its users. Although the policy is fully supported by medical marijuana groups, there is fear that there are not enough specifics to keep patients and/or suppliers out of the court room. The loopholes include the prosecutors extensive right to determine what they think is legal. Their discretion allows them to go after anyone they believe sells marijuana for profit, a violation of state guidelines. They can also investigate and prosecute people who are unmistakably abiding by state law in the “pursuit of federal interests”. The amount of discretion left up to the prosecutors is questionable, and will pose for probable cause search questions in court. However times and policies are changing as seen by the many people pushing the idea of marijuana legalization. Federal police should focus on major drug traffickers and networks, rather than on medical marijuana users who are in clear and unambiguous compliance with existing state laws. Since Obama's no federal prosecution policy shift, states that have legalized medical marijuana, especially in California, have judges that will continue to go lighter on medical marijuana punishments. Defense lawyers can argue to judges that the Obama administration's memo justifies a break in sentencing. Some prisoners may even start to cite Obama's memo and ask for clemency. This new policy will force police to know the law regarding medical marijuana because they will not want to waste time in court if every legal medical marijuana user will be innocent. Criminal defense lawyers will hopefully experience less frustration because the differences between state and federal laws are more clearly distinguished. Tulsi Patel (Comm 139) on June 11, 2009 at 1:23 a.m. wrote: Upon reading this blog entry I am not that surprised that law enforcement was not thoroughly educated on marijuana laws. Throughout the state of California, it seems there are contradictory laws that confuse and blur the system. I remember watching a documentary on marijuana and in a Northern California city it is legal to grow marijuana but not to use it. It seems laws like these coupled with medical marijuana jurisdiction are too specific for anyone to grasp and then know which area it is legal in. Allowing different counties or cities to enact their own marijuana legislation is ambiguous, therefore the state should play a greater role. Law Blog on July 8, 2007 at 1:13 a.m. wrote: You have to carefully comply with Proposition 215, and even then you may be subject to arrest under federal law. I always advise people against opening medicinal dispensaries of marijuana, as these locations are often raided, the medicine seized, and funds are spent on Bail and criminal defense lawyers. However, we are a society of laws. Compliance with Proposition 215 should not be punished! Dave S. on July 7, 2007 at 11:19 p.m. wrote: I am currently a resident in the great -red- state of Florida. I have a medical necessity for medical marijuana and want to move to California where cooler heads prevail. Will I be protected at the state level? Do I need to fear prosecution if I grow a small number of plants? I'm so confused about these laws. Thank you. Law Blog on June 13, 2007 at 12:43 a.m. wrote: LAPD's policing of medicinal marijuana storefronts is very aggressive, and is often outside the spirit of the California initiative. Many individuals just trying to follow the law are getting arrested. This is unfair, and undermines what the California legislature intended. Eric T. on June 7, 2007 at 1 a.m. wrote: The 2005 Raich Supreme Court decision does not overturn or affect state law, and 99% of all marijuana arrests take place at the state or local level. This means that state laws afford substantial protection to medical marijuana patients. Currently, laws that effectively remove state-level criminal penalties for growing and/or possessing medical marijuana are in place in Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington. Ten states, plus the District of Columbia, have symbolic medical marijuana laws (laws that support medical marijuana but do not provide patients with legal protection under state law). New Mexico passed its medical marijuana bill in early 2007. In 1998, voters in the District of Columbia approved a medical marijuana initiative by 69% but Congress was able to nullify the vote results because D.C. is a federal district and not a state. Twelve states have medical marijuana research laws, and only fifteen states have never had a positive medical marijuana law. *note information taken from: Sella Benyamin on June 6, 2007 at 6:04 p.m. wrote: I'm really curious to know if marijuana was legalized, would there really be a difference in using it? I don't think it will increase. The people who use it now are still going to use it when it's legal and the ones that aren't interested in it aren't going to start just because it's legal. Law Blog on June 4, 2007 at 11:12 p.m. wrote: We just received news from the prosecutor's office that the valley storefront whose edibles with medicine were seized will not be prosecuted, and will receive its property back. We intervened early with the prosecutors, showed them the law, and explained how the storefront was following the law when it was raided by police, after being burglarized. Interesting coincidence? And we wonder why it takes so long for a 911 response. Arsineh on June 4, 2007 at 3:28 p.m. wrote: There is definately a legitimate reason for people to be recieving medicinal marijuana, but there is also great abuse of the substance. I don't think that people realize that 'smoking a bowl' is not how the medicinal uses of marijuana are actualized. A very small quantity is required to acquire the benefits of THC [basically you don't have to be 'high' to, as a person who has this substance prescribed to them, to make use of the benefits this drug provides]. I did a research paper on this topic 2 years ago, and only '10 mg' (Steve Markhoff, Medicinal Marijuana Pro/Con) is necessary to ease difficulties patients may be using this drug for. That is a lot less marijuana that people are being found with on the streets, and altough our police officers are ignorant, it seems as though many people abuse this substance. There's no denying it, and until this drug (it indeed is a drug whether used medicinally or for recreation) becomes legal, people shouldn't blame the cops for getting caught with it. G on June 4, 2007 at 3:15 p.m. wrote: In response to angela, the law provides a floor, not a limit to how many plants and how many ounces a person can possess. The floor is set at 8 ounces and 6 mature or 12 immature plants. But, if the patient requires more medicine than what is set forth by the floor, the reccomending doctor can raise the limit to however much is needed. Also, different counties have different regulations. Humboldt county previously had a 99 plant limit. angela on June 4, 2007 at 1:01 a.m. wrote: Does obtaining a medical marijuana recommendation from the doctors mean that the person can personally grow marijuana? Also, is there a limit to how many ounces of marijuana they can obtain? Law Blog on June 2, 2007 at 1:10 p.m. wrote: Any witness who uses his training, experience, and knowledge to testify to 'expert' opinions must be found competent to do so by the judge. Sometimes so-called experts may have outdated knowledge. In the case where our client received his pot and money back after the DA's case was dismissed, the LAPD expert had not worked in narotics enforcement for many years. His initial opinion that possessing 6 ounces of marijuana was 'possessed for sale' was not based on any information about medicinal marijuana - because he was not trained about these laws. His expertise was based on narcotics investigations 10 years earlier, and his most recent work involved traffic investigations not drug sales. Throgh cross-examination, we proved that his expert opinion was not credible, and the DA was fored to dismiss the case in the middle of the preliminary hearing. Law Blog on June 2, 2007 at 1:04 p.m. wrote: Marijuana provides a real cure for pain and mood management for individuals suffering from cancer treatment, migraines, depression, accident injuries, and other debilitating illnesses. Clearly there is a prejudice in the U.S. against legitimazing its use, despite contrary medical evidence. The State of California has legitimized marijuana's use for medical purposes, but law enforcement attempts to undermine its implementation by investigating legitimate provider facilities. Recently a licensed Valley storefront for providing marijuana to the ill had a late night break-in, and the police were called to investigate the burglary. Instead of focusing on the helping the victimized store owners, the police obtained a search warrant seizing the store's goods claiming it was being held in violation of the medicinal marijuana laws. A legitimate victim became a defendant! A letter to the chief of police will be submitted to have him explain how this happened. Elina Barrie on June 1, 2007 at 4:35 p.m. wrote: I recently read about an interesting fact: Californians consume between $870 million and $2 billion worth of medical marijuana per year, according to a report to Oakland's Measure Z marijuana policy oversight committee. The same report projects that the state could receive $70 million to $120 million in sales tax revenues alone if medical marijuana was taxed legally like other herbal medicines. I think that it makes more sense to legally regulate and tax marijuana than to criminalize it. Authorities have proven helpless to substantially restrict marijuana sale and use anyway. nora c on June 1, 2007 at 2:50 p.m. wrote: I'm wondering what kind of education or continued education do police experts need to have to be educated on 'the law'. Clearly they are enforcing 'the law', but i assume the LAPD is not in the business of studying 'the law' although they should. Further, I can imagine that an LAPD expert would HAVE to educate themselves on their area of expertise, but with the laws in CA constantly changing its extremely dfficult to follow up, i can only imagine, how do Lawyers stay informed?

About the Author

Dmitry Gorin

Find me on Google+ Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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