Effectuating the Medical Cannabis Defense in California

• Jurisdiction: California,United States
• Citation: Vol. 14 No. 1
• Publication year: 2014
• Author: By Joseph A. Rogoway
• topic: Criminal Law,Health Law

EFFECTUATING THE MEDICAL CANNABIS DEFENSE IN CALIFORNIA

By Joseph A. Rogoway

The complexity and nuance of California's medical cannabis laws make understanding the mechanics of asserting the in-court defense challenging. This complexity is driven by the interplay between the statutory regimes incorporated within Health and Safety Code section 11362.5 (Prop. 215; The Compassionate Use Act) and sections 11362.7-11362.83 (SB 420; The Medical Marijuana Program Act). Added to this conceptual venn diagram of medical protections are varying and often conflicting opinions from reviewing courts throughout the state. Examining each nuance of these laws is perhaps more appropriate for a reference manual. The purpose of this article is to assist the practitioner in gaining a basic understanding of the statutory immunities and affirmative defenses that are available for persons alleged to be involved in the lawful distribution of medical cannabis.

I. Statutory Construction

In order to really understand the utility of California's medical cannabis protections in practical terms, the practitioner should begin with the Supreme Court of California's landmark decision in People v. Mower (2002) 28 Cal.4^th 457. There, the Mower court unanimously ruled that:

"By its terms, section 11362.5(d) provides that section 11357 and 11358, which criminalize the possession and cultivation of marijuana, "shall not apply to a patient, or a 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." ( §11362.5(d)). Thus, within its scope, section 11362.5(d) renders possession and cultivation of marijuana noncriminal--that is to say, it renders possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver." Mower at Pg. 470-471.

In reaching this conclusion, the Mower court held that because the charges of possession and cultivation of marijuana both include the element of "unlawfulness", the defenses provided in the Compassionate Use Act ("CUA") negate that element.

"In sum the defense provided by section 11362.5(d) relates to the defendant's guilt or innocence, because it relates to an element of the crime of possession or cultivation of marijuana. Thus, this defense negates the element of the possession or cultivation of marijuana to the extent that the element requires that such possession or cultivation be unlawful." Mower at Pg. 482.

As further stated in Mower, the qualified patient needs some mechanism for establishing his or her defense to charges of criminal possession and cultivation of marijuana:

"For a defendant to be able to avoid "criminal prosecution or sanction" (§ 11362.5, subd. (b)(1) (B) when charged with possession or cultivation of marijuana in violation of section 11357 or 11358, he or she must be able to defend on the ground that these provisions do "not apply" (§11362.5(d)) because he or she is a qualified patient or primary caregiver." Mower at Pg. 474-475.

Subsequent to the passage of the Compassionate Use Act, the California state legislature enacted the Medical Marijuana Program Act ("MMPA"). Through the MMPA, the legislature sought to "(1)[c]larify the scope of the...