������������ Copyright (c) 1998 Los Angeles County Bar Association
������������������������������ Los Angeles Lawyer
������������������������������ July/August, 1998
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DEPARTMENT: PRACTICE TIPS:
PROPOSITION 215: LEGAL STRATEGIES FOR THE MEDICINAL
USE OF MARIJUANA: HOW TO
SEEK AND SECURE PROTECTION FOR PATIENTS UNDER THE NEW
LAW
by Ronald Richards
Ronald Richards is a senior
partner in the Century City law firm of Richards &
Chemerinski, where he
specializes in criminal defense with an emphasis on
victimless crimes and civil
liberties.
TEXT:
��� [*21]� One of the
measures on the November 4, 1996, statewide election
ballot in California was
Proposition 215, n1 also known as the Compassionate Use
Act of 1996 n2 or, more
familiarly, the Medical Marijuana Initiative. Its
passage signaled that a
majority of California voters support its main purpose:
to ensure that seriously ill
persons have the right to obtain and use marijuana
for medical purposes when
that medical use is deemed appropriate and has been
recommended by a physician.
The new law was designed to shield citizens from
criminal prosecution or any
other sanction n3 for the approved medical use of
marijuana and affords
protections for physicians from criminal or administrative
prosecutions for
recommending marijuana.
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�� n1 Proposition 215 has been codified as HEALTH & SAFETY CODE
@ 11362.5.
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�� n2 See CAL. CONST. art. II, @ 10(a) (provides authorization for
ballot
initiatives).
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�� n3 HEALTH & SAFETY CODE @ 11362.5(b)(1)(B).
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�� Proposition 215 was written specifically to encourage federal
and state
government officials to
implement a plan for the safe and affordable
distribution of marijuana to
all patients in need of it. To fulfill the voters'
intent, a bill is pending in
the legislature that would designate the University
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of California to create the
California Marijuana Research Program for the
development and
implementation of studies ascertaining the general medical
efficacy and safety of
marijuana. The bill provides for a $ 1 million
appropriation to the
university for establishing and operating the program, as
well as the authorization
for the program to raise funds and to include other
research projects in the
studies. n4
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�� n4 Proposed HEALTH & SAFETY CODE @ 11362.59 codifies the
funding mechanism of
the state program and
expresses the urgent need for it.
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�� Proposition 215 provided specific exemptions under existing
California Health
and Safety Code sections for
growing and possessing marijuana that is not for
sale. n5 Thus the patient,
as well as the designated "primary
caregiver"--defined as
the person who has consistently assumed responsibility
for the housing, health, or
safety of the person n6--generally are protected,
but land mines remain.
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�� n5 HEALTH & SAFETY CODE @ 11362.5(d).
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�� n6 HEALTH & SAFETY CODE @ 11362.5(e).
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�� Two published opinions on certain applications of the new law
were issued
during the period between
Proposition 215's enactment and codification as Health
and Safety Code Section
11362.5, and March 1, 1998. n7 These cases, People v.
Trippet and Lungren v.
Peron, reflect the greatest fears facing medical
marijuana patients and their
caregivers: the possibility of being charged with
possession for sale and for
transportation, both of which are violations of the
Health and Safety Code,
specifically Sections 11359 and 11360. n8 The police may
arrest a patient or
caregiver under either charge. The presumptive bail is $
15,000, and a defendant also
can face a suspension of his or her driver's
license n9 and a felony
conviction--so the medication can become quite
expensive. The decision to
arrest for a sales offense or to bring a sales charge
is within the discretion of
the officer and/or the prosecutor, but there is no
discretion to reduce the
charge to a misdemeanor because it is a straight
felony. n10 Thus these code
sections present dangers for the patient and/or the
caregiver, who theoretically
can be charged with two felonies and must prove
their exemption from prosecution
under Proposition 215. n11
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�� n7 People v. Trippet, 56 Cal. App. 4th 1532 (1997); Lungren v.
Peron, 59 Cal.
App. 4th 1383 (1997).
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�� n8 See HEALTH & SAFETY CODE @@ 11359 and 11360.
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�� n9 See HEALTH & SAFETY CODE @ 11362.5(d).
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�� n10 See HEALTH & SAFETY CODE @ 11359.
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�� n11 See HEALTH & SAFETY CODE @ 11362.5(d).
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Trippet and Peron
�� In People v. Trippet, n12 the defendant offered a battery of
common law as
well as religious defenses
to a transportation charge, which were all rejected,
but the court of appeal
accepted a defense arising from Proposition 215. The
appeals court first examined
the issue of raising an implied defense to a charge
of transporting narcotics
and conceded that "practical realities dictate that
there be some leeway in
applying [Health and Safety Code] Section 11360 in cases
where a Proposition 215
defense is asserted to companion charges." n13 If the
quantity transported and the
method, timing, and distance involved were
reasonably related to the
patient's current medical needs, there is an implied
defense to the Section 11360
charge, according to Trippet. n14
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�� n12 People v. Trippet, 56 Cal. App. 4th 1532 (1997).
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�� n13 Id. at 1550.
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�� n14 Id. at 1551.
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�� The Health and Safety Code�
[*22]� Section 11359 charge is a
specific intent
crime, n15 which means that
the prosecutor must show that the defendant intended
to possess the marijuana for
sale. If such a showing is not made, then a
Proposition 215 defense may
lie because a lesser-included-offense instruction
for Section 11357(b) or (c)
may be available. If the trier of fact finds that
there was no intent to sell,
then the shield of the new law may be raised to
provide protection to the
patient or caregiver from prosecution.
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�� n15 People v. Peck, 52 Cal. App. 4th 351 (4th App. Dist. 1996),
review denied
.
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�� It is important to note that the amount of marijuana does not
dictate
circumstantial evidence for
sale: the possession of as few as five marijuana
cigarettes has been the
basis for bringing sales charges in cases. The
prosecution looks at the
packaging of the marijuana in question, as well as the
presence of scales, baggies,
and other indicia of sales versus usage. If a trier
of fact can be convinced
that the usage was for a purpose intended under
Proposition 215, an
acquittal under the Health and Safety Code Section 11360
implied defense should carry
over to a Section 11359 charge as well.
�� In contrast to the Trippet decision, with its primary focus on
the scope of
the new law in connection
with a defense to a marijuana charge, the Peron case
specifically addressed
Proposition 215's definition of a "primary caregiver." It
is apparent from the Peron
decision that courts may limit the scope of who can
qualify as a primary
caregiver, but the primary caregiver's right to be
responsible for more than
one patient may not be so restricted.
�� In Peron, a preliminary injunction had been issued against the
state attorney
general to prevent that
office from closing a cannabis buyers' club in San
Francisco. The primary
concern of the Peron court was analyzing whether the
stipulated primary caregiver
was a legitimate designee. Even though the court
seemed fixated on the statutory
language stating that the primary caregiver
"consistently provides
for the housing, health, or safety of the designating
patient," n16 the court
expressly rejected the attorney general's argument that
a primary caregiver cannot
serve more than one patient. n17
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�� n16 Lungren v. Peron, 59 Cal.App. 4th 1383, 1399 (1997).
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�� n17 Id. at 1399.
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�� The court implied that a director of a convalescent home or
nursing home
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could be designated a
primary caregiver for more than one patient. Further, if a
primary caregiver's function
is to provide marijuana to a patient, there is no
reason why a patient should
be compelled to rely on just one person for that
task. Also, the court
expressly allowed for reimbursement of a primary
caregiver's actual expenses
incurred in obtaining or growing marijuana for
patients. n18 Nevertheless,
the Peron court did not permit importation or
cultivation of marijuana by
large commercial enterprises such as the one run by
the defendants. n19
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�� n18 Id.
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�� n19 Id. at 1400.
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�� In the wake of Peron, all potential caregivers should make sure
that they are
so designated in writing, do
more for the patient than just sell or give away
marijuana in a commercial
operation and, finally, proceed with caution when they
move from being a caretaker
of a dying AIDS patient to operating a Macy's of
marijuana clubs. There is a
gray area that can be navigated safely by caregivers
such as a director of a
hospice, but only with careful planning and
documentation.
�� As for equitable protection from the courts, there currently is
a federal
district court injunction in
place against the prosecution of any doctor who
recommends marijuana to his
or her patients. Last year, a case was brought
against the director of the
U.S. Office of National Drug Control, Barry R.
McCaffrey, among others, and
a preliminary injunction was obtained that prevents
all the defendants, and all
others acting in concert or participating with them,
from threatening or
prosecuting physicians, revoking their licenses, or
excluding them from
Medicare/Medicaid participation based upon conduct relating
to medical marijuana that
does not rise to the level of a criminal offense. n20
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�� n20 See Conant v. McCaffrey, 172 F.R.D. 681, 701 (1997).
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Simple Possession
�� A simple possession charge--less than 28.5 grams of marijuana--carries
a
maximum fine of no more than
$ 100, n21 and the Department of Motor Vehicles
will suspend a person's
driver's license for six months even if the conviction
for possession is unrelated
to driving. n22 There are two ways to attack a
possession charge. The first
begins with examining the circumstances surrounding
the arrest to see if a
suppression motion is appropriate. Small amounts of
marijuana found during a
pat-down search for weapons in a person's pockets
usually are not enough to
rise to the level of justifying an entry into the
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pocket to retrieve it. This
is because the scope of the officer's pat-down
search is limited to
weapons. The next step is to determine if the arresting
officer took the person into
custody, because a custodial arrest is specifically
prohibited by statute. n23
If this has occurred, a motion for the suppression of
evidence or statements
obtained after a custodial arrest is appropriate. There
have been cases in which
officers have arrested individuals for possession of
three to four joints and
have called it possession for sale, but hopefully a
court would scrutinize such
claims and hold that the felony arrest was without
probable cause.
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�� n21 See HEALTH & SAFETY CODE @ 11357(b).
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�� n22 See VEH. CODE @ 13202.3.
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�� n23 See HEALTH & SAFETY CODE @ 11357(b); PENAL CODE @ 853.6.
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�� The second way to attack a possession charge is to present a Proposition
215
defense--though
practitioners should realize that their biggest problem with
mounting this defense is
measuring the effort versus the reward. Because the
six-month license suspension
makes a plea to a marijuana charge worse than a
driving under the influence
conviction, the penalty is too severe to give up the
fight. Unless the court
finds "compelling" circumstances, the DMV must suspend
the license of the
defendant. The $ 100 fine is really only a secondary problem.
�� The first task facing the defense attorney is to convince the
prosecutor that
the defendant has a
physician's oral or written recommendation. The only means
for convincing the
prosecutor of an oral recommendation's existence or validity
is through live testimony,
since an oral recommendation is hearsay. The better
choice is a written
recommendation, drafted for the doctor, citing Health and
Safety Code sections. The
recommendation should include the name of the patient,
the date of the
recommendation's commencement and expiration, and a recommended
dosage amount. The following
language can be inserted to protect the physician
against federal
interference:
This recommendation is in no
way to be interpreted as a prescription as defined
under federal law. It is
only a recommendation that adopts the legal provisions
of California Health and
Safety Code Section 11362.5 and is only intended to be
used and applied under
California law.
�� The next hurdle facing practitioners is to get the
recommendation into
evidence, or at least in a
form that the prosecutor will believe. Serving a
subpoena on the doctor is
always the worst choice. The doctor does not want
unnecessary exposure, and
the client may not be able to afford the fees for
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travel or other expenses.
Also, it is impractical for the doctor to be
subpoenaed to court every
time a prosecutor decides to get tough.
�� The best and easiest method is a business records subpoena
pursuant to Code
of Civil Procedure Section
1985, accompanied by an affidavit for a duces tecum.
The practitioner should also
prepare a model declaration under Evidence Code
Section 1561 for the doctor
as the custodian of records sufficient to satisfy
any challenge. Finally, an
affidavit checklist accompanying the subpoena will
ensure that the doctor
follows all the rules required to prove trustworthiness
and reliability. When
practitioners present these records to the prosecutor,
they have met two burdens:
1) a recommendation exists, and 2) it was issued by a
physician.
�� The prosecutor can either proceed to a jury trial to secure a
no-probation
sentence� [*23]�
with a $ 100 fine, or dismiss the case. What should occur is a
dismissal pursuant to Penal
Code Section 1385. n24 This would be a fair and just
disposition, because the
reason for a no-probation sentence is to prevent the
defendant from suffering a
probation violation that is worse than the
substantive offense. Also,
conditions of probation can include
search-and-seizure
conditions that would allow the police to search the
probationer at any time with
or without probable cause. Further, a marijuana
conviction can be completely
removed from one's record, along with the arrest,
n25 which is a preferable
resolution of a client's case in comparison to
expungement. n26
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�� n24 PENAL CODE @ 1385 is a catchall section that allows
dismissal in the
interest of justice.
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�� n25 See HEALTH & SAFETY CODE @ 11361.5.
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�� n26 PENAL CODE @@ 1203.4a and 1203.45 expunge records for civil
purposes but
not for prior criminal
offenses or for offenses related to certain professional
licenses.
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�� The new law grants a patient or caregiver a full exemption from
prosecution
for cultivation under
California law, n27 but that exemption does not extend to
the federal district courts.
The penalties for simple possession pursuant to 21
U.S.C. Section 844 can range
from probation to one year for a first offense, and
from 90 days to 3 years for
two or more offenses. The minimum fines can be as
high as $ 5,000. n28
Cultivation is covered under 21 U.S.C. Section 841, which
states that 1,000 or more
plants subject the cultivator to a 10-year minimum
prison sentence. n29 A
5-year maximum applies if there is less than 50 kilograms
of marijuana and/or less
than 50 plants. A small amount of marijuana that is
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given away for no money will
be treated as simple possession. n30
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�� n27 HEALTH & SAFETY CODE @ 11362.5(d).
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�� n28 21 U.S.C. @ 844(a).
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�� n29 21 U.S.C. @ 841(b)(vii) (1,000 kilograms or more of a
mixture or
substance containing a
detectable amount of marijuana, or 1,000 or more
marijuana plants regardless
of weight).
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�� n30 See 21 U.S.C. @ 841(b)(D)(4).
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�� Clients must be warned, then, to cultivate with caution. The
federal
government will not
prosecute a person with one plant or 40 plants, but as
cultivators inch toward 50
plants, they run the risk of becoming manufacturers.
n31
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�� n31 A man whose Bel Air residence was found to contain 4,000
plants is being
prosecuted by the federal
government for distribution.
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Other Strategies
�� A motion to suppress n32 will almost always fail as a
substantive defense
because the new statute
specifically provides defendants with an affirmative
defense, not a pretrial
remedy. Practitioners can apply for an Evidence Code
Section 402 hearing to
ensure that physician records are admitted and to lay a
foundation that may
discourage further prosecution. Also, practitioners can
argue that if the patient is
exempt from possession charges, the issue should be
addressed in a 402 hearing,
not a full-blown jury trial. A trial date must be
set before the 402 hearing
takes place, but judges can be lenient when it comes
to marijuana cases
containing Proposition 215 issues. The bench officer, the
prosecutor, and the defense
all have an interest in a methodology that
encourages timely
disposition.
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�� n32 See PENAL CODE @ 1538.5.
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�� Another argument that should be made is that the new law
prohibits criminal
prosecution of patients and
their caregivers. n33 Also, since a preliminary
hearing should be held prior
to any criminal prosecution, and a complaint and
trial by the prosecution
constitute a criminal prosecution, there may be some
jurisdictional issues for
the court to explore.
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�� n33 HEALTH & SAFETY CODE @ 11362.5(b)(1)(B).
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�� If there are no legitimate Fourth Amendment violations, the
choices narrow to
a stipulation to possession,
followed by establishing the exemptions. A court
trial may be a good
alternative for certain defendants and their lawyers.
�� Once charges are dismissed, defendants can retrieve the
marijuana that was
taken by the police and
booked into evidence by a motion for return of property.
n34 As long as the patient
shows a valid recommendation, with the term of the
recommendation and the
recommended dosage, the judge will order the police to
return the marijuana--there
is no legal reason for the state to continue to hold
it. n35
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�� n34 See PENAL CODE @ 1539.
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�� n35 HEALTH & SAFETY CODE @ 11473.5 only allows a forfeiture
if the person was
in unlawful possession of
the marijuana.
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�� Californians embarked on a courageous journey when they decided
to
decriminalize usage of a
Schedule One narcotic n36 for medicinal use. n37
However, judges,
prosecutors,� [*48]� and lawyers seeking to harvest, cultivate,
and package this new
legalization of marijuana for certain individuals must
still wait for the smoke to
clear. Further incarceration of American citizens
under a criminal code that
grants exemptions to users, providers, and
manufacturers without
explicit guidelines can become unfair and undemocratic,
and a conflict with federal
law looms. Cooperation among all participants in the
justice system is needed to
protect the sick and dying from further pain.
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�� n36 See HEALTH & SAFETY CODE @ 11054(d)(13).
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10
������������������������ 21 Los Angeles Lawyer 21, *48
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�� n37 A petition to the Drug Enforcement Administration has been
filed to
remove marijuana as a
Schedule One narcotic.
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