Three Appellate Court Rulings on Medical Marijuana: San Diego, Windus and Phomphakdy

AUGUST 8, 2008 - Last week saw three significant California Appellate Court rulings on medical marijuana, most of them favorable to medical marijuana patients, but one with cautionary implications for "primary caregivers."

(1) SAN DIEGO CHALLENGE TO PROP 215 & SB 420 ID CARDS REJECTED
In the first, Counties of San Diego & San Bernardino v San Diego NORML & Wendy Christakes, the 4th appellate district court upheld the validity of the SB 420 medical marijuana ID card program and discounted claims that state enforcement of Prop 215 violated federal law. While it might be hoped that this would prove the nail in the coffin to this lame case, San Diego county supervisors have voted to appeal to the state Supreme Court, where they seem destined to lose again. Also see: Judge rejects San Diego lawsuit challenging Prop. 215 (Dec. 6th, 2006).

(2) WINDUS RULING REJECTS 1-YEAR RECOMMENDATION DEADLINE, SIGNIFICANTLY LIMITS "PRIMARY CAREGIVER" DEFENSE
In the second case, People v. Windus, the 2nd appellate district ruled that a physician's recommendation does not automatically become invalid if it is not renewed in one year. "Based on our examination of the CUA (Compassionate Use Act), we see nothing in the
statute that requires a patient to periodically renew a doctor's recommendation regarding medical marijuana use." Although SB 420 requires that medical marijuana ID card holders renew their recommendations annually, the Windus ruling found that this does not restrict the legality of the recommendation under the CUA. Note that the recommendation in question was issued without any expiration date, so the decision would not apply to recommendations where the physician has specified an expiration date. Note too that the CA medical board recommends that physicians perform at least annual check-ups to avoid possible malpractice.

In a second finding, the Windus court limited the scope of the "primary caregiver" defense. In specific, it upheld the lower court's finding that a primary caregiver must consistently assume responsibility for the needs of the patient, not merely occasionally supply him or her with marijuana. "Case law is clear that one who merely supplies a patient with marijuana has no defense under the CUA," wrote the court. This interpretation of the law is accepted by most Cal NORML attorneys, who advise against casual or commercial providers from relying on the "primary caregiver" defense.

(3) PHOMPHAKDY REITERATES KELLY DECISION THAT SB 420 LIMITS INVALID
In the third decision, People v Phomphakdy, the 3rd appellate district court in Sacto came to a similar conclusion as the recent 4th district Kelly decision,namely that the amount of marijuana patients may legally possess or cultivate is not legally restricted by the SB 420 limits: "We hold that the Medical Marijuana Program Act's numerical limits are an unconstitutional amendment to the Compassionate Use Act." The court's decision was marginally less sweeping than Kelly, in that it only invalidated the subsection of SB 420 specifying the limits, H&SC 11362.77(a), not the whole section 11362.77.

While Cal NORML agrees with the major thrust of the Kelly and Phomphakdy decisions, they are apt to be double-edged swords. While they have helped some defendants who exceeded the SB 420 limits to avoid convictions, they have also invited prosecutors to take some defendants to court who would have previously been dismissed automatically under SB 420 (for example, caregivers found transporting over one pound in counties whose limits allow it).