A recent client was charged with VC 23222(b), possession of less than one ounce of marijuana while driving. The client was also a qualified patient in the Cal. medical marijuana program. I obtained a dismissal by filing the following motion to dismiss:
MOTION TO DISMISS
Defendant moves this court to dismiss Count 2 charging VC sec. 23222(b) per Penal Code section 1385 based on People v. Mower (2002) 28 Cal.4th 457 (count one charges speeding per VC sec. 23550).
POINTS AND AUTHORITIES
Defendant’s vehicle was stopped for speeding. In the process of the detention, the detaining officer recovered less than one ounce of marijuana. Defendant possesses a valid medical marijuana certificate (see attached copy).
1. DEFENDANT IS A QUALIFIED PATIENT WHO HAS COMPASSIONATE USE ACT IMMUNITY FROM PROSECUTION
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.”
The evidence contained in the authorizing letter per H&S sec. 11362.5(d) establishes defendant’s status as a qualified patient who has, and at the time of the offense had a physician’s recommendation (or approval) for the medical use of marijuana (cannabis).
2. AN IDENTIFICATION CARD IS SUFFICIENT BUT NOT NECESSARY TO INVOKE THE COMPASSIONATE USE ACT.
“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))
3. VC SEC. 23222(B), PROSCRIBING POSSESSION OF UNDER ONE OUNCE OF MARIJUANA WHILE DRIVING, IS SUBJECT TO COMPASSIONATE USE ACT IMMUNITY.
In Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, the Court ruled that the Medical Marijuana Program (MMP) provided immunity from prosecution to those qualified patients charged with VC sec. 23222(b). The Court reasoned:
“Since the MMP allows the transportation of medical marijuana
(§ 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at pp. 93-94), the MMP effectively authorizes the conduct described in Vehicle Code section 23222, subdivision (b), when, as here, the conduct at issue is the transportation of a small amount of medical marijuana for personal use – conduct “authorized by law.” (at p. 376)
Defendant has been conferred immunity under the California Compassionate Use Act prohibiting prosecution under VC sec. 23222(b). The Court must therefore dismiss Count 2.
Dated: November 7, 2013
Michael L. Shultz
Attorney for Defendant