California Supreme Court: State’s Marijuana Possession Limits Are A Floor, Not A Ceiling  

Thu, 21 Jan 2010 - By: Paul Armentano, NORML Deputy Director | California’s Supreme Court issued its long awaited opinion today regarding the constitutionality of state-imposed limits regarding the amount of marijuana patients may legally possess and grow. In it’s 53-page decision, the Court unanimously ruled that the state’s guidelines, enacted in 2004, should not preclude patients from receiving legal protections in court if they possess cannabis in quantities above those recommended under state law (six mature or twelve immature plants and/or eight ounces) or county law.

The People v. Patrick K. Kelly in the Supreme Court of California

[excerpt] “Whether or not a person entitled to register under the [2004 state law] elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA (Compassionate Use Act of 1996), retains all the rights afforded by the CUA. Thus, such a person may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs … without reference to the specific quantitative limitations specified by the [2004 state law.]“ In short, the Court affirmed that the state’s guidelines in no way override the sweeping legal protections provided under Proposition 215, the Compassionate Use Act of 1996. As long as a patient possess quantities of cannabis that are “related to meet his or her current medical needs,” then they are legally protected under state law — regardless of whether or not these quantities are in accordance with state-imposed or locally-imposed guidelines.

In a separate legal issue before the Court, justices further ruled that provisions enacted by the Legislature allowing for counties to establish a voluntary identification system for legally recognized patients did not infringe upon the intent of the 1996 voter-approved initiative. So precisely what does this decision mean for California patients and providers? Aaron Smith provides an excellent summation here. The bottom line: patients in California have a legal right to possess and use marijuana in the way that is in best accordance with their medical treatment, as decided by the patient and his or her doctor — not by state or local legislators. Click > here < for the story, related links and to view and enter comments.

STATE COURT RULING SHOOTS DOWN MEDICAL MARIJUANA RESTRICTIONS  

A unanimous California Supreme Court on Thursday struck down a law that sought to impose limits on the amount of marijuana a medical patient can legally possess, essentially sending Humboldt County's prosecution guidelines, and countless others throughout the state, up in proverbial smoke. The California high court ruled that state lawmakers overstepped their bounds in 2003 when passing Senate Bill 420, which sought to give law enforcement guidelines on when to make marijuana possession arrests by mandating that each patient could have a maximum of eight ounces of dried marijuana. The bill sought to add clarity to 1996's voter-approved Proposition 215, which made it legal for patients to possess and cultivate unspecified amounts of marijuana with a doctor's recommendation.

The case, The People v. Patrick Kelly, adds considerably more gray to an already murky legal area governing medicinal use of the drug, and what constitutes legitimate personal medical consumption. One thing is for sure, according to University of California Hastings School of Law professor David Levine, the ruling will make it much more difficult to prosecute medical marijuana cases.

"We end up going case by case, rather than having some sort of guidelines," Levine said. "You're going to end up having to decide this case by case. Given this particular defendant, was this reasonable or not? And, it will be decided by a jury." The ruling essentially states that only voters can change amendments, like Proposition 215, that they've added to the state's Constitution through the initiative process.

"The basic issue is just the hierarchy of law," Levine said, adding that the court's ruling did not come as a surprise. "That's really the core of it." The Supreme Court's decision upholds a lower court ruling that tossed out the conviction of Patrick Kelly, a Southern California man who was arrested for possession of 12 ounces of dried marijuana and seven plants. A "confidential informant" called Lakewood Police to report Kelly's possession in October 2005.

Experts testified that the amount of marijuana Kelly had on hand would last him just a few weeks for treatment of hepatitis C, chronic back pain, and cirrhosis. Humboldt County District Attorney Paul Gallegos said he's already shared the court's ruling with the Humboldt County Board of Supervisors, county counsel and the sheriff, and intends on talking to other local law enforcement agencies about it. But, at first blush, Gallegos said he thinks the ruling renders the county's prosecution guidelines unlawful, as they place restrictions on the amount of space patients can use to cultivate marijuana, the amount patients can cultivate and the amount they can possess.

"We're back to no limits," Gallegos said. "We don't even have threshold amounts we can throw in front of a jury." Under Proposition 215, patients can use medical marijuana with a doctor's recommendation, but there's no requirement that doctors recommend a dosage. In fact because marijuana is still illegal federally, the California Medical Association advises physicians to avoid offering advice on how much marijuana a patient should use.

Gallegos said it will likely be very difficult for his office to make determinations on whether the amount of marijuana possessed by someone with a doctor's recommendation is in line with what their doctor feels is necessary to treat their medical condition. "You can arrest them all day long. The question is, can you prosecute them?" Gallegos asked, adding that, in many cases, his office likely won't know the answer until the patient's doctor is testifying at trial.

That is a very expensive process by which to prosecute cases, Gallegos said, as it takes attorneys, a courtroom and jurors just to determine whether a case is prosecutable. Neal Sanders, a local attorney who handles medical marijuana cases, had a similar take.

"The prosecutor can't come in and say, 'this person violated the law because they had over eight ounces of marijuana,'" Sanders said. "The prosecution now has to prove the defendant had more than what their medical needs were. ... I think this is a boon to the defense for people that have medical marijuana." Gallegos said the ruling adds to marijuana's nebulous, quasi-illegal state, which brings a host of complications -- both moral and criminal.

"When you say something is illegal, but make it so you can't enforce it, you've turned the law, instead of a rule, into a suggestion," Gallegos said. "It really makes a lot of it unenforceable." Allen St. Piere, spokesman for the National Organization for the Reform of Marijuana Laws, said the court's ruling is a step in the right direction.

"It's very positive," St. Piere said. "It's an acknowledgment that the patient and the doctor relationship is sacrosanct and that the state, federal and local governments should not get between a physician and his or her patient." But, the ban on SB 420 may be short-lived, according to Levine, as the court simply ruled the state can't impose the guidelines without first getting voter approval.

"What the Legislature will have to do is send it to the voters and see what happens," Levine said. "There's no reason the Legislature could not put this on the next ballot." The county guidelines, Levine said, are another ball of wax, unless the state acts first. "At the county level, they just have to tear up those documents," he said. Click > here < for the story, related links and to view and enter comments.

Author: Thadeus Greenson, The Times-Standard
Pubdate: Fri, 22 Jan 2010
Source: Times-Standard (Eureka, CA)
Referenced: Supreme Court Opinion
Bookmark: (Cannabis - Medicinal - U.S.)
Bookmark: (Cannabis - California)
Newshawk: Confusion in California

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