Understanding California's Medical Marijuana Laws
| Publication year | 2014 |
| Author | By Alex D. Kreit |
By Alex D. Kreit
It has been almost 18 years since Californian's passed the Compassionate Use Act, the first modern state medical marijuana law. Since then, 19 other states and the District of Columbia have enacted medical marijuana laws, and Colorado and Washington have legalized the drug entirely.
But after more than a decade and a half, two U.S. Supreme Court decisions, and two California Supreme Court decisions (with a third on the horizon), the legal status of medical marijuana in California is, somehow, more confusing than ever. In Oakland, a multi-million dollar medical marijuana dispensary—the Harborside Health Center—was the subject of a reality television series on the Discovery Channel. Meanwhile, in San Diego, local prosecutors have worked to shut down all dispensaries, arguing that California law does not permit the retail sale of medical marijuana.
For its part, the federal government's actions have been even more bewildering. Shortly after he took office in 2009, President Barack Obama's Justice Department issued a memo advising federal prosecutors "not [to] focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."1 By 2012, however, Rolling Stone writer Tim Dickinson was reporting "the Obama administration has quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush."2
In this paper, I hope to shed some light on a couple of the often confusing and difficult-to-follow controversies related to California's medical marijuana law.
Although it is common to talk of California's medical marijuana law in the singular, two distinct pieces of legislation form the foundation for our medical marijuana system: the Compassionate Use Act (CUA)3 and the Medical Marijuana Program Act (MMPA).4
Passed by the voters in 1996, the CUA is also sometimes referred to by its ballot measure number, Proposition 215. At the time it was enacted, the CUA broke new ground as the first true state medical marijuana legalization law. Though it's impossible to deny the CUA's influence on the political and legal status of medical marijuana across the country, the law is not a model in legislative drafting to put it mildly.
The ballot measure's stated purposes was to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.[]"5 But it exempted medical marijuana patients and so-called primary caregivers from punishment under just two provisions of the California Health and Safety Code: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana[.]"6
The CUA's flaws began to reveal themselves not long after its passage. Perhaps most glaringly, in protecting patients only from possession and cultivation prosecutions, the law left out other key offenses like transportation. As one court explained, the omission had the potential to lead to "absurd" results like subjecting a "dying cancer patient's 'primary caregiver' . . . to criminal sanctions for carrying otherwise legally cultivated and possessed marijuana down a hallway to the patient's room."7 As a result, "[a]lmost immediately after the CUA became effective, questions arose about whether it provided a defense to marijuana-related offenses not specified in its text[.]"8
Even for possession and cultivation offenses, however, the nature of the CUA's protection for patients and primary caregivers was uncertain. The law states that California's marijuana possession and cultivation provisions "shall not apply" to patients and primary caregivers "who possess[] or cultivate[] marijuana for . . . personal medical purposes."9 Did this language provide immunity from arrest and prosecution? Or did it create an affirmative defense? And just how much marijuana could patients and caregivers grow and possess? In People v. Mower, the California Supreme Court held that while the CUA does not give patients and primary caregivers "complete immunity," it "grants [them] a limited immunity from prosecution, which not only allows a defendant to raise his or her status as a qualified patient or primary caregiver at trial, but also permits a defendant to raise such status by moving to set aside an indictment or information prior to trial[.]"10 With respect to quantity, courts have held the law permits possession and cultivation that is "reasonably related" to a patient's current medical needs, though the limits of that rule remain untested.11
In order to "address issues not included in the CUA,"12 the California legislature enacted the Medical Marijuana Program Act, which took effect on January 1, 2004. The MMPA "did not literally amend the statute that establish the CUA" but it "did add 18 new code sections that address the general subject matter covered by the CUA."13 Some of the MMPA's provisions were targeted at specific problems in the CUA. For instance, the MMPA expands the crimes for which patients and caregivers may enjoy protection to include transportation, possession for sale, and maintaining a place for sale among others.14 The MMPA also sought to establish numerical guidelines to govern the amount of marijuana patients can possess but the California Supreme Court held that aspect of the law to be an unconstitutional amendment of the voter-enacted CUA.15
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In response to the CUA's failure to provide immunity from arrest, the MMPA established a voluntary identification card system. The identification cards, which are "[a]t the heart of"16 the MMPA, give medical marijuana patients and caregivers the option of registering to receive a government-issued card, with applications processed and issued at the county level.17 Patients and caregivers who choose to participate in the card system receive protection from arrest in return. To facilitate this, the program "provide[s] law enforcement a 24-hour a day center to verify the validity of the state identification card[.]"18 Contrary to popular belief among some, patients can enjoy most of the CUA and MMPA's protections without a registration card. The cards are optional for those patients who want the additional protection from arrest that a simple recommendation does not provide.
Despite continuing federal opposition, storefronts that sell medical marijuana to qualified patients are commonplace in many parts of the state. Are these entities—often referred to as dispensaries—legal under California law? The answer is a qualified yes.
In some parts of the state, storefront medical marijuana cooperatives operate with the enthusiastic support of local officials. In early October 2012, for example, Oakland filed suit to try and block the federal government from shuttering Harborside, a medical marijuana dispensary that has seen over $20 million in annual sales.19
While Oakland has taken legal action on behalf of one of its dispensaries, other cities and counties in the State have made them targets. In San Diego, for example, District Attorney Bonnie Dumanis has argued that California law does not allow the retail sale of medical marijuana to patients at all. Instead, her office has argued the law only permits cultivation projects in the image of a small community garden, where most (or possibly all) members are "engag[ed] in the act of cultivation."20 San Diego County Deputy District Attorney Chris Lindberg explains the theory: "To cultivate whether individually or as a group, you have to plant, water, fertilize, protect from pests, and prune, i.e., cultivate. If some members of the group do not participate in the cultivation, then they are not among those who cultivated collectively or cooperatively."21 What accounts for such divergent views? The MMPA's "collective and cooperative" provision, which provides that medical marijuana patients and caregivers may "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes[.]"22 In California, the legal status of dispensaries hinges almost entirely on this sparse and open-ended "collective and cooperative" statute.23
Thus far, a handful of appellate court decisions have weighed in on the legality of storefront dispensaries. All have held dispensaries are legal under California's medical marijuana laws. The California Supreme Court has not yet addressed this issue, however, and courts have parted ways on precisely what a dispensary needs to do to comply with the law.
In 2012, San Diego County's position on medical marijuana dispensaries was put to the test in People v. Jackson.24 The Jackson case is especially noteworthy because of its unusual backstory. In 2009, Jovan Jackson was tried and acquitted on five counts related to his involvement in a medical marijuana collective. The collective, known as Answerdam, operated in a similar fashion to other storefront dispensaries in the state and so fell into the disputed area of California's law. At the close of the trial, the prosecutor argued that the jury should not be instructed on California's medical marijuana "collective and cooperative" provision because Jackson's storefront operation was illegal as a matter of law. The court disagreed, instructed the jury on the medical marijuana defense, and the jury promptly acquitted Jackson. After the trial, the jury held a press conference in which the foreperson explained that "the prosecution gave his . . . kind of narrow definition [of a collective] during the, the closing arguments, but there was nothing in the law that really backed that up."25
Somewhat incredibly, after Jackson's acquittal, the San Diego District Attorney's office prosecuted him a second time for running the same medical marijuana collective...
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