Following the passage by the California voters of Proposition 215 which de-criminalized possession and cultivation of marijuana for medical use, California legislature has passed two critical sets of statutes known as the Compassionate Use Act of 1996 (“CUA”) and the Medical Marijuana Program Act (“MMPA”) passed in 2003 and known as SB 420. While the achievement of these laws in establishing real protections for medical marijuana patients and primary caregivers is unquestionable, it has become apparent – to criminal defense attorneys and those who have faced criminal prosecution – that these statutes are deeply flawed. In short, the CUA and the MMPA contain a remarkable number of gaps and ambiguities, which continue to leave too many questions in need of an answer. These statutory shortcomings have left too many areas open to hostile interpretations by law enforcement agencies, prosecutors or the courts leading to many unnecessary and unjust prosecutions of medical marijuana patients and providers.
Consequently, criminal defense attorneys as well as many well intentioned and genuinely puzzled prosecutors have been asking and waiting for the California courts to clarify some of the most crucial and controversial aspects of the California medical marijuana laws. The courts have responded with mixed success. While the courts have dealt fairly successfully with such issues as transportation of medical marijuana, certain aspects of the law - most notably the area of safe and viable distribution of medical marijuana through storefront dispensaries or other forms of collectives and cooperatives – continue to constitute legal quagmires even for the best and most knowledgeable attorneys.
The aspects of the California state medical marijuana law which the courts have attempted to create through case law over the years, include the following:
1. Quantity Limits. How much marijuana can be possessed by a legitimate medical marijuana patient, both in terms of dried marijuana weight and number of plants, is far from clear. So far, the courts have articulated a very imprecise test that a patient can possess an amount of medical marijuana that is reasonably related to his or her medical needs.
2. Transportation. The CUA and MMPA have not directly addressed the issue of how much marijuana can be transported by patients and primary caregivers. In light of this apparent ambiguity the courts have held that marijuana can be transported if and when the method, timing and distance of the transportation are reasonably related to the patient’s medical needs.
3. Monetary Reimbursements. The courts have issued contradictory opinions on issues such as whether primary caregivers and patients associated within collective or cooperative can receive reimbursements for their costs, expenses as well as compensation for the labor and services rendered in obtaining and procuring medical cannabis for other patients.
4. Profit. A frequent issue encountered by defense attorneys in representing clients in criminal prosecutions is whether profits by primary caregivers and patients associating for the purpose of collective or cooperative cultivation of cannabis is prohibited. The unresolved issues include the question of what, if anything, differentiates a profit as distinguished from a salary or some other form of reasonable compensation for labor and services.
5. The Attorney General Guidelines For the Security and Non-Diversion of Marijuana Grown For Medical Use. Arguably, the 2008 document simply known as the Attorney General Guidelines (“AG Guidelines”) is even more ambiguous and vague as the CUA and MMPA. In addition, the courts continue to struggle with issues such as whether the AG Guidelines have the authority of the law, whether they are purely advisory and, whether, to the extent they may be used in arguments by attorneys in criminal or civil cases, how much evidentiary and persuasive authority they ought to be given by the judges or juries.
6. Burdens of Proof. The courts have issued and continue to issue rulings with regard to the evidentiary burdens of proof legitimate medical marijuana patients and primary caregivers must satisfy in order to assert a successful defense in criminal and civil courts. Also, the courts continue to define the reach and the character of immunity from criminal prosecution and sanctions granted by the CUA and the MMPA.
There have been several landmark court decisions in California since the passage of Proposition 215 and subsequent legislation under the Compassionate Use Act and the Medical Marijuana Program Act.