Raising the Medical Marijuana Defense/immunity

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

RAISING THE MEDICAL MARIJUANA DEFENSE/IMMUNITY

On November 5, 1996, California enacted the Compassionate Use Act, otherwise known as Proposition 215, authorizing medical use of marijuana. Nineteen other states have followed suit. In a departure from its usual eclectic approach, the Criminal Law Journal is pleased to present this double issue replete with articles solely dealing with this single subject. The views and opinions expressed in the articles are those of the authors and do not necessarily reflect the official policy or position of the Criminal Law Journal or the Criminal Law Section.

By Author Unknown

A. The "Mower Motion"

Although it is legal for qualified patients to cultivate, process, use, transport, distribute, and sell medical marijuana pursuant to California law, persons engaged in those activities routinely find themselves facing criminal charges. In 1996 California voters enacted Proposition 215, the Compassionate Use Act. The CUA added section 11362.5 to the Health and Safety Code and provides that once a person obtains a physician's recommendation or approval for the therapeutic use of cannabis, that person becomes a "qualified patient" and is therefore not subject to criminal sanction for the crimes of possession, cultivation, and transportation¹

In People v. Mower, the Supreme Court of California held that a qualified medical marijuana patient is entitled to assert defenses and exemptions to the criminal charges of violating Health and Safety Code §11357 and 11358² The Mower court unanimously ruled that, those statutes criminalizing 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." Thus, the Mower court found, "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."³

In reaching this conclusion, the Supreme Court in Mower held that because the charges of possession and cultivation of marijuana both include the element of "unlawfulness", the defenses provided in the CUA negate that element⁴ As further stated in Mower, the qualified patient needs some mechanism for establishing his or her defense to charges, "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."⁵

This is the genesis of the so-called "Mower Motion" with which the qualified patient attempts to negate the charges at three critical stages of the prosecution: 1) at preliminary hearing, 2) pursuant to a Penal Code §995 motion, and 3) again at trial.

B. Mower Motion Applicable to Charges Related to Marijuana Sales

While historic, the CUA was incomplete in that it left unaddressed a legal mechanism for patients to obtain their medicine. Subsequent to the passage of the Compassionate Use Act, the California state legislature enacted the Medical Marijuana Program Act⁶ Through the MMPA, the...