|
Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and
<br />strictly construed California law relating to it. His office issued a bulletin to California law
<br />enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did
<br />not address the validity of the California statutes and, therefore, had no effect on California law. The
<br />office advised law enforcement to not change their operating procedures. Attorney General Lockyer
<br />made the recommendation that law enforcement neither arrest nor prosecute "individuals within the
<br />legal scope of California's Compassionate Use Act." Now the current California Attorney General,
<br />Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to
<br />California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher
<br />on storefront dispensaries-generally finding them to be unprotected, illegal drug-trafficking
<br />enterprises if they do not fall within the narrow legal definition of a "cooperative"-than on the
<br />possession and use of marijuana upon the recommendation of a physician.
<br />When California's medical marijuana laws are strictly construed, it appears that the decision in
<br />Gonzales v. Raich does affect California law. However, provided that federal law does not preempt
<br />California law in this area, it does appear that the California statutes offer some legal protection to
<br />"individuals within the legal scope of the acts. The medical marijuana laws speak to patients,
<br />primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and,
<br />if their conduct comports to the law, they may have some state legal protection for specified
<br />marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of
<br />the statutes, including dispensaries and storefront facilities, are not legal. These establishments have
<br />no legal protection. Neither the former California Attorney General's opinion nor the current
<br />California Attorney General's guidelines present a contrary view. Nevertheless, without specifically
<br />addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to
<br />defend the codified Medical Marijuana Program Act against court challenges, and to advance the
<br />position that the state's regulations promulgated to enforce the provisions of the codified
<br />Compassionate Use Act (Proposition 215), including a statewide database and county identification
<br />card systems for marijuana patients authorized by their physicians to use marijuana, are all valid.
<br />1. Conduct
<br />California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for
<br />which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver,"
<br />or is a member of a legally recognized "cooperative," he or she has an affirmative defense to
<br />possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried
<br />marijuana can be possessed. Additionally, either six mature or twelve immature plants may be
<br />possessed. 15 If a person claims patient or primary caregiver status, and possesses more than this
<br />amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals
<br />may also cultivate, plant, harvest, dry, and/or process marijuana, but only while still strictly
<br />observing the permitted amount of the drug. The statute may also provide a limited affirmative
<br />defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana
<br />house, knowingly providing a space where marijuana can be accessed, and creating a narcotic
<br />nuisance. 16
<br />However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances
<br />of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the
<br />purposes of sales, completed sales, giving away, administration, transportation, maintaining of
<br />marijuana houses, knowingly providing a space for marijuana activity, and creating a narcotic
<br />nuisance continue to be illegal under California law.
<br />© 2009 California Police Chiefs Assn. 3 All Rights Reserved
<br />65A-64
|