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Congress shall have power to regulate Commerce with foreign Nations, and among the several
<br />States, and with the Indian Tribes."2
<br />Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana
<br />under California's medical marijuana statute. The Court explained that under the Controlled
<br />Substances Act marijuana is a Schedule I drug and is strictly regulated.3 "Schedule I drugs are
<br />categorized as such because of their high potential for abuse, lack of any accepted medical use, and
<br />absence of any accepted safety for use in medically supervised treatment. ,4 (21 USC sec. 812(b)(1).)
<br />The Court ruled that the Commerce Clause is applicable to California individuals growing and
<br />obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal
<br />regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation,
<br />including California's. The Court found that the California statutes did not provide any federal
<br />defense if a person is brought into federal court for cultivating or possessing marijuana.
<br />Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana
<br />and all such activity remains illegal.5 California's Compassionate Use Act of 1996 and Medical
<br />Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana
<br />activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding,
<br />on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama
<br />Administration the U.S. Department of Justice plans to target for prosecution only those marijuana
<br />dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.b
<br />CALIFORNIA LAW
<br />Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing,
<br />and giving away of marijuana is unlawful under California state statutory law. (See Cal. Health &
<br />Safety Code secs. 11357-11360.) But, on November 5, 1996, California voters adopted Proposition
<br />215, an initiative statute authorizing the medical use of marijuana.7 The initiative added California
<br />Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain
<br />and use marijuana for medical purposes where that medical use is deemed appropriate and has been
<br />recommended by a physician ...."8 The codified section is known as the Compassionate Use Act
<br />of 1996.9 Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical
<br />Marijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of
<br />"patient" and "primary caregiver" 11 and created guidelines for identification cards.12 It defined the
<br />amount of marijuana that "patients," and "primary caregivers" can possess. 13 It also created a
<br />limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather
<br />to cultivate medical marijuana, 14 as well as to the crimes of marijuana possession, possession for
<br />sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or
<br />distribution of marijuana for a person who qualifies as a "patient," a "primary caregiver," or as a
<br />member of a legally recognized "cooperative," as those terms are defined within the statutory
<br />scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the
<br />establishment of a "dispensary" or other storefront marijuana distribution operation.
<br />Despite their illegality in the federal context, the medical marijuana laws in California are specific.
<br />The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated
<br />marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes'
<br />parameters remains illegal under California law. Relatively few individuals will be able to assert the
<br />affirmative defense in the statute. To use it a person must be a "qualified patient," "primary
<br />caregiver," or a member of a "cooperative." Once they are charged with a crime, if a
<br />person can prove an applicable legal status, they are entitled to assert this statutory defense.
<br />© 2009 California Police Chiefs Assn. 2 All Rights Reserved
<br />65A-63
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