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Medical Marijuana Defense Attorney Los Angeles, California

Medical Marijuana Laws In California

California's medical marijuana law is perhaps the least restrictive of those in the states that have legalized marijuana for medical use. At the same time, its aim to have local governments adopt guidelines regarding patient and caregiver conduct has led to unequal application of the law, selective enforcement, and vastly different interpretations of the law. By familiarizing yourself with the following information, you will be better equipped to handle and law enforcement encounter if that should ever happen.

California's Medical Marijuana Law

The Compassionate Use Act of 1996 (CUA) In 1996, the California voters enacted Proposition 215, codified as Health & Safety Code 11362.5: This section shall be known and may be cited as the CUA. The people of the State of California hereby find and declare that the purposes of the CUA are as follows: To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would.

The people of the State of California hereby find and declare that the purposes of the CUA are as follows: To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes. Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes. 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 the patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable. The major protection for patients and caregiver within the CUA is offered by Section (d) of the CUA, which exempts those qualified from Sections 11357 and 11358 of the California Health and Safety Code. Here is the definition of those sections: Health & Safety Code Section Generic Description of Offense 11357(a) - Felony/Misdemeanor Possession of Any Concentrated Cannabis 11357(b) - Misdemeanor Possession of 28.5 grams or less of Marijuana 11357(c) - Misdemeanor Possession of more than 28.5 grams of Marijuana 11358 - Felony

Cultivation of Any Marijuana Concentrated Cannabis On October 21, 2003, California Attorney General Bill Lockyer issued an opinion addressing the legality of concentrated cannabis. Opinion #03-411 states that concentrated cannabis or hashish is included within the term "marijuana" as it is used in the CUA. California Legislature Passes SB 420 In 2003, California Attorney General Bill Lockyer issued an opinion dealing with the legality of concentrated cannabis. Opinion #03-411 states that concentrated cannabis or hashish is included within the term "marijuana" as it is used in the CUA. In 2003, the state legislature passed SB 420 in an attempt to "clarify" the CUA. SB 420, also known as the Medical Marijuana Program Act, went into effect January 1, 2004. While SB 420 has not prevented all harassment of patients by law enforcement, it has allowed for greater protection in the courts. SB 420 attempted to further define the CUA in a variety of ways: SB 420 established guidelines for appropriate personal use. State law carves out "protection" for patients and caregivers who cultivate as many as six mature or twelve immature plants and possess as much as eight ounces of dried medical marijuana. While localities can establish higher personal use amounts, they may not go lower than the 'floor' guidelines in SB 420. While guidelines establishing "acceptable" quantities were meant to be just that, guidelines, they have been interpreted by law enforcement as limits. Higher quantities are certainly necessary for many patients, and SB 420 extends the same protections to patients with a physician statement stating such a need, which can be helpful if a case goes to court. SB 420 established "protection" from arrest and prosecution for cultivation, use, possession and transportation for those who are in compliance with their local or state guidelines. SB 420 authorizes medical marijuana collectives and cooperatives. This is an important expansion of legal rights for medical marijuana dispensing collectives and cooperatives serving large numbers of patients. The Compassionate Use Act defines the role of "caregiver" as "the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person." While there is no limit to how many patients a caregiver may assist in his or her own county, SB 420 sets a limit of one patient residing outside the caregiver's county for each primary caregiver. The role of caregiver does allow for "reasonable compensation incurred for services provided." A patient need not be a caregiver to be part of a patient collective or cooperative, as these are legally distinct concepts. SB 420 also mandated a statewide voluntary ID card program and the participation of all California counties in this program. This State Department of Public Health program provides a confidential identification system to help protect patients from law enforcement interference and aid law enforcement in the implementation of medical marijuana law. As of July, 2007, 35 of 58 California counties have voted to implement or have already implemented the state ID card program. Patient participation in the ID card program is not a requirement for "protection" under the law. However, though some voice concerns about releasing private information to state officials, the ID card program offers several benefits to patients that recommendations do not, such as: Recommendations offer less protection from arrest, since SB420 explicitly provides for immunity from arrest upon the presentation of a valid state ID card. The standardized format of the ID card (in contrast to a doctor's recommendation), it is more difficult for law enforcement agents to claim your documents are fraudulent. Your photo appears on the state ID card, making your ownership of the document easily verifiable (unlike a doctor's recommendation). Your state ID card does not include your name.

Conflict between State and Federal Law The federal government claims that marijuana is not medicine and in Gonzales v. Raich (2005), the United States Supreme Court held that the federal government has the constitutional authority to prohibit marijuana for all purposes. Thus, federal law enforcement officials may prosecute medical marijuana patients, even if they grow their own medicine and even if they reside in a state where medical marijuana use is protected under state law. The Court indicated that Congress and the Food and Drug Administration should work to resolve this issue. The Raich decision does not say that the laws of California (or any other medical marijuana state) are unconstitutional; nor does it invalidate them in any way. Also, it does not say that federal officials must prosecute patients. Decisions about prosecution are still left to the discretion of the federal government. According to a post-Raich statement by California Attorney General Bill Lockyer, the ruling does not overturn California law permitting the use of medical marijuana. Lockyer also underscored the role of local law enforcement in upholding state, not federal, law. A superior court has rejected the County of San Diego's claim in a lawsuit filed against the State that California's medical marijuana laws are preempted by federal law. States have recognized marijuana's medical value and have either passed laws through their legislatures or adopted them by initiative. In support of the numerous states that have taken responsibility for the health and welfare of their people, and have implemented medical marijuana laws. California State Agencies Must Enforce Medical Marijuana Law Under our federalist system of government, the states, rather than the federal government, are entrusted to exercise a general police power for the benefit of their citizens. Due to this constitutional division of authority between the federal government and the states, the State of California may elect to decriminalize conduct, such as medical marijuana activity, which remains illegal under federal law. Even if law enforcement officers take a personal position on any conflict between state and federal law, they are bound by California's Constitution to uphold state law. Under California's medical marijuana laws, patients and caregivers are exempt from prosecution by the State of California, notwithstanding contrary federal law.

In People v. Tilehkooh (2003), the court found that California courts "long ago recognized that state courts do not enforce the federal criminal statutes." The same court also stated "the federal criminal law is cognizable as such only in the federal courts." In People v. Kelly (1869), it was determined that "State tribunals have no power to punish crimes against the laws of the United States as such. The same act may, in some instances, be an offense against the laws of both, and it is only an offense against the State laws that it can be punished by the State. Federal Marijuana Law The federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. 811), which does not recognize the difference between medical and recreational use of marijuana. These laws are generally applied only against persons who possess, cultivate, or distribute large quantities of marijuana. Under federal law, marijuana is treated like every other controlled substance, such as cocaine and heroin. The federal government places every controlled substance in a schedule, in principle according to its relative potential for abuse and medicinal value. Under the CSA, marijuana is classified as a Schedule I drug, which means that the federal government views marijuana as highly addictive and having no medical value. Doctors may not "prescribe" marijuana for medical use under federal law, though they can "recommend" its use under the First Amendment. The Drug Enforcement Administration (DEA), charged with enforcing federal drug laws, has taken a substantial interest in medical marijuana patients and caregivers in general, and large cultivation and distribution operations more specifically. Over the past few years, dozens of people have been targets of federal enforcement actions. Many of them have either been arrested or had property seized. More than a hundred are currently in prison or are facing charges or ongoing criminal or civil investigations for their cultivation or distribution of medical marijuana. The DEA, like local enforcement agencies, can choose how to make the best use of its time. Ideally, the DEA will leave medical marijuana patients and their caregivers alone. But federal law does not yet recognize medical marijuana, and the DEA is currently allowed to use the Controlled Substances Act to arrest people for its use. In many pending and past cases, the DEA and U.S. Attorney's office have used exaggerated plant numbers and inflammatory rhetoric, as well as informants who trade jail time for testimony, to justify enforcing federal laws against medical marijuana patients and caregivers in California and other states. Federal marijuana laws are very serious, and punishment for people found guilty is frequently very steep. Federal law still considers marijuana a dangerous illegal drug with no acceptable medicinal value. In several federal cases, judges have ruled that medical marijuana cannot be used as a defense, though defense attorneys should attempt to raise the issue whenever possible during trial. Federal law applies throughout California and the United States, not just on federal property. The key to federal property is that they are more likely than non-federal property to have federal officials monitoring it who will bust medical marijuana patients. Most likely, even if a patient is arrested and charged with a minor possession offense, he will be referred to the state authorities where he can assert a medical marijuana defense.

There are two types of federal sentencing laws: sentencing guidelines, enacted by the United States Sentencing Commission, and mandatory sentencing laws, enacted by Congress. The Sentencing Commission was created in 1987 to combat sentencing disparities across jurisdictions. The current mandatory minimum sentences were enacted in a 1986 drug bill. Federal sentencing guidelines take into account not only the amount of marijuana but also past convictions. Not all marijuana convictions require jail time under federal sentencing guidelines, but all are eligible for imprisonment. If convicted and sentenced to jail, a minimum of 85% of that sentence must be served. The higher the marijuana amount, the more likely one is to be sentenced to jail time, as opposed to probation or alternative sentencing. Low-level offenses, even with multiple prior convictions, may end up with probation for the entire sentence of one to twelve months, and no jail time required. Possession of over 1 kg of marijuana with no prior convictions carries a sentence of six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record carries a sentence of at least six months in jail; with multiple prior convictions, a sentence might be up to two years to three years in jail with no chance for probation. In United States v. Booker (2005), a Supreme Court decision from January 2005, the court ruled that the federal sentencing guidelines (as outlined above) are advisory and no longer mandatory. However, many federal judges continue to give great deference to the guidelines. In addition to the sentencing guidelines, there are statutory mandatory minimum sentences, which remain in effect after United States v. Booker and primarily target offenses involving large amounts of marijuana. There is a five-year mandatory minimum for cultivation of 100 plants or possession of 100kgs, and there is a ten-year mandatory minimum for these offenses if the defendant has a prior felony drug conviction. Cultivation or possession of 1000kg or 1000 plants triggers a ten-year mandatory minimum, with a twenty-year mandatory sentence if the defendant has one prior felony drug conviction, and a life sentence with two prior felony drug convictions. To avoid a five-year mandatory minimum, it is advisable to stay well below 100 plants, including any rooted cuttings or clones. Other Applicable Laws School Zones Patients should avoid possession of marijuana in school zones, as there are typically additional penalties for the possession, use, and cultivation of marijuana near schools, whether it is for medical or recreational use. California patients and caregivers have been the targets of extreme charges and harsh penalties for medical marijuana in these "Drug Free School Zones." If a patient or caregiver possesses, cultivates, transports, or distributes marijuana near a school, the federal penalties can be stiff. These Drug Free School Zone laws can double the maximum sentences in federal court. SB 420 explicitly states that it does not authorize the smoking of marijuana "in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence." SB 420 says nothing about cultivation of marijuana near schools and recreational centers. Firearms Firearms can also result in harsher sentencing. "Any person who, during any drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall: Be sentenced to a term of imprisonment of not less than 5 years; If the firearm is brandished, not less than 7 years; and If the firearm is discharged, not less than 10 years." Although the U.S. Constitution confers a right to carry firearms, we have seen many patients face extreme legal consequences for having firearms in addition to plants. Your state ID card does not include your name.

Civil Asset Forfeiture Federal law provides for the forfeiture of property and profits obtained through or used in the commission of felony drug offenses. Prosecutors are encouraged to include forfeiture offenses in all drug indictments. This can apply to landlords who rent to people considered in violation of federal law, and therefore could be used against the landlords of patients who cultivate or use their medicine on the premises. Travel Under California law, a qualified patient with a California recommendation may only possess, cultivate and transport medicine in California. A California recommendation does not provide an affirmative defense in other states (except in Montana), so do not bring your medicine across state lines with an expectation of legal protection. Also, DO NOT bring your medicine to the airport (even if you are flying within California). Federal Transportation Security Administration (TSA) employees will security screen you and, upon finding your medicine, they are likely to turn you over to local authorities for state charges. Becoming a Legal Patient The CUA allows seriously ill people to legally grow and use marijuana as medicine. In order to qualify under California law, a patient must have a doctor's recommendation or approval. A doctor may recommend or approve the medical use of marijuana for any condition for which it provides relief. Ask Your Regular Doctor for a Recommendation Be forthright with your doctor. There is nothing wrong with using medical marijuana or discussing it with your doctor. A federal court has ruled that, under the First Amendment, doctors may not be punished for recommending medical marijuana. Ask for a written recommendation. Although an oral one is acceptable, it is difficult to verify. A written recommendation is more helpful in defending oneself against criminal charges. Tell your doctor specifically what condition or symptoms you treat with marijuana. Honestly describe the amount of marijuana you use, how often, and by what delivery method. When recommending quantities of marijuana for medicinal use, doctors may recommend a certain amount based on your need and experience with what works. If this amount is above the state minimum or local guidelines, doctors do not need to specify an amount; they only need to note that a patient requires more to meet their medical need than the guideline amount for that jurisdiction. * If your doctor does not issue medical marijuana recommendations, you may need to visit a medical marijuana specialist.

STATE ID PROGRAMS STATE ID PROGRAM LINK Becoming a Legal Caregiver Health and Safety Code 11362.5, the California medical marijuana law, protects patients and their primary caregivers from prosecution for marijuana law violations. By state law, a designated caregiver is allowed to possess, manufacture, and provide marijuana, in all its varieties and forms, for the patient in his/her care. The caregiver is not allowed to use this marijuana for his/her personal use, nor can s/he provide this medicine to non-qualified patients. There is no official registration system to become a caregiver for a medical marijuana patient, so it is a good idea to draft an agreement yourselves. This can be an oral or written agreement in which the patient designates you as his/her "primary caregiver." At this time, you should discuss the needs of your patient, related to both medical marijuana and other care, decide a plan of action, and then get to work. The role of caregiver is more clearly defined in the law's text as an "individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." While this definition is quite broad, it is clearly intended that legal caregivers should assist patients in matters of personal health and well-being, which include, but reach beyond, assisting with the provision of medical marijuana.

This assistance could include consistently growing, transporting, and otherwise obtaining medical marijuana for patients, helping patients get to health care appointments, shopping for food and personal care items for home-bound patients, arranging safe housing, helping with rental applications, or assisting with a move, organizing social outings and special events, gardening, pet care, household chores and other typical, attendant-style care. It is helpful to have a signed agreement between the patient and caregiver. Sensible Medical Marijuana Use Patients and caregivers should educate themselves about medical marijuana and understand the benefits and potential side effects of this medicine. By being a sensible medical marijuana user and making informed decisions, you can be as healthy as possible and help change the way people think about medical marijuana use. Guidelines for Sensible Medical Marijuana Use: Always listen to the advice of your doctor and use good judgment when using medical marijuana. Carefully determine the amount of marijuana that is right for you. Start with a small amount and slowly increase your dosage to find the proper level for symptomatic relief. Inform yourself about marijuana’s effects on yourself and others. These effects include legal and health risks, as well as potential personal consequences. Clearly understand the benefits of marijuana and relief that its use provides you. Be able to explain your use to people who desire information about your use of marijuana as a medicine. Never use medical marijuana as an excuse or cue for antisocial or irresponsible behavior. Avoid medical marijuana use that puts you or others at risk, such as when driving, at work, or in public places. Remember, you can still be arrested for marijuana use and penalties can be stiff. As with any other prescription medication, it remains illegal to drive while under the influence. Medical marijuana should contribute to, rather than detract from, health, well-being, work, and relationships. Always carry a copy of your physician's recommendation or caregiver's agreement and recommendation with your medical marijuana. In addition, although the state-issued ID card is not necessary to obtain the protection of California's medical marijuana laws, law enforcement is more likely to honor ID cards, so it is a good idea to carry your ID card with you.

Important things medical marijuana patients should know to stay out of trouble during a police encounter. NEVER CONSENT TO A SEARCH. The cops are not there to be your friends they are interested in arresting you. DO NOT WAIVE YOUR MIRANDA RIGHTS. Ask if you are free to leave. If not. Politely ask to have your attorney present during any questioning. KEEP YOUR MOUTH SHUT ALWAYS KEEP YOUR RECOMMENDATION WITH YOU. If you get arrested and a cop wants to ignore your recommendation, politely ask to have a supervisor take notice of your recommendation and gettheir badge number. DO NOT PACKAGE YOUR MEDICINE IN SMALL BAGGIES OR KEEP EXTRA BAGGIES or PACKAGING MATERIAL ON YOU. Law enforcement will try to charge you with Possession/Transportation for Sales, a much more serious felony. Avoid keeping any Scale on you or your car. IF YOU GROW Stay within the guidelines and DO NOT KEEP GUNS. Secure the garden in a locked room or devise another way to deny access to children. KEEP YOUR BONG, PIPE, MEDICINE etc OUT OF PLAIN VIEW. DO NOT SELL OR GIVE MEDICINE TO ANY UNAUTHORIZED PERSONS DO NOT MEDICATE & OPERATE A VEHICLE DUI arrest on patients are on the rise. Let the officer Know that you are aware Field Sobriety Tests (FSTs) are completely voluntary. Do not agree to perform any of theses FST tests. Politely refuse to do the field sobriety exercises. However, you must submit to a chemical breath or blood test under the "implied consent" law. DO NOT REFUSE THE CHEMICAL TEST - Refusal of the chemical test will lead to harsher penalties. Let your lawyer fight and challenge the results and the arrest. Everything you tell your lawyer is privileged & confidential and cannot be used against you. Be honest with your attorney so that are there are no surprises in court. The best defense team is an informed defense team! MAKE NO MISTAKE ABOUT IT- THE GOVERNMENT HAS EXPERIENCED PROSECUTORS WHO ARE COMMITED TO WORK AGAINST YOU - IF YOU GET ARRESTED, CONTACT MY OFFICES IMMEDIATELY AND WE WILL DEFEND YOU. Sean Tabibian, Attorney at Law is a contributing member of NORML, NACDL, CACJ, CPDA, and a leading authority on criminal laws. On Trial Magazine has voted him as Criminal Defense Attorney of the Year.