California, in its infinite wisdom, has enacted medical marijuana laws (H&S sec. 11362.5). Health and Safety Code sec. 11362.5(d) provides: “Section 11357, relating to the possession of marijuana, and section 11358, relating to the cultivation of marijuana, shall not apply to a patient …who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”
A patient’s authorizing doctor’s letter per H&S sec. 11362.5(d) establishes a person’s status as a qualified patient who, at the time of the offense, had a physician’s recommendation (or approval) for the medical use of marijuana (cannabis).
Unfortunately, many law enforcement officers are unsympathetic to those patients who are stopped while in possession of marijuana or concentrated cannabis and end up handcuffed and led off to jail with their medicine confiscated and later burned.
The medical marijuana statutes protect personal, but not commercial, possession/cultivation. But where is the line drawn? An example: I represented a qualified patient stopped with three pounds of marijuana in her car. The officers and the DA both believed that this amount far exceeded the amount necessary for the client’s current medical needs. Accordingly, she was charged with commercial possession for sale, a felony. We were able to show, via expert evidence, that this amount represented the clients’ yearly medicinal requirements and that she carried this supply while traveling far from home to avoid theft (she lived in a remote area of Humboldt).
According to cannabis expert Chris Conrad, El Cerrito, California, “Since cannabis is an annual plant, it is logical to measure its use as an annual dosage. Many patients need three pounds of bud or more per year.” (Conrad, Cannabis Yields and Dosage (2004), p.6). More is needed if the patient desires to ingest the drug in food. In terms of ounces, this would average out to about four ounces per month. When the DA finally understood that the Cal. statute covered the client’s situation, the charges were dismissed.
An ID card is not required. “It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.” (H&S sec. 11362.71(f)). “Qualified patient means a person who is entitled to the protections of sec. 11362.5, but who does not have an identification card issued pursuant to this article.” (sec. 11362.7(f))
In the now well known and often cited case of People v. Mower 28 Cal.4th 457, the Supreme Court of California concluded: “In light of its language and purpose, sec. 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, but also permits a defendant to raise such status my moving to set aside an indictment or information prior to trial on the ground of the absence of reasonable or probable cause to believe that he is guilty” (at p. 464).
Recent legislation adds extra protection so that a qualified patient (and others designated) may transport his/her medicine. (H&S § 11362.765).