Key Medical Marijuana Decisions by California Courts: A Partial List

The Court of Appeals reversed the conviction holding, that under the MMPA, a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit.

(Draft case summary for illustrative purposes; may change upon in-depth case review)

To begin, The CUA and MMPA make certain marijuana-related violations of the Vehicle Code lawful. As a result, marijuana’s prohibition under federal law does not allow law enforcement to not return confiscated marijuana legally possessed under state law. First, under Health & Safety Code section 11473.5 unless the substance’s possession is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute. Second, although the supremacy clause grants Congress the power to preempt state law, in enacting the Controlled Substances Act (“CSA”), Congress made it clear it did not intend to preempt the states on the issue of drug regulation. What is more, due process of the law requires law enforcement to return confiscated marijuana legally possessed under state law. It is beyond dispute that the right to regain possession of one’s property is a substantial right and continued official retention of legal property with no further criminal action pending violates the owner’s due process rights.

Because the status of qualified patient does not confer an immunity from arrest, law enforcement officers may detain, search, and arrest a qualified patient for marijuana offenses where they have probable cause when they have reason to believe that the arrestee does not possess marijuana for his personal medical purposes. Under the facts and circumstances of this case, the law enforcement officer had probable cause to search defendant’s car for marijuana after he smelled the odor of marijuana. In other words, a patient’s possession of a valid medical marijuana card does not negate the probable cause for detainment, search, and arrest provided by the odor or presence of marijuana.

Under the MMPA, either the holder of an identification card or a qualified patient may assert the CUA as a defense to a charge of transporting marijuana. However, Trippet’s test—whether “the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs”—survived the enactment of the MMPA and remains a useful analytic tool. As a result, the trial court’s failure to instruct the jury on the CUA defense to the charge of transportation of marijuana does not constitute a prejudicial error where a jury convicts a defendant under the proper instruction to the charge of possession of marijuana for sale.

The MMPA does provide a defense for collective cultivation and distribution of medical marijuana. The MMPA contains Health & Safety Code section 11362.775. Thus, the Legislature exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance. Moreover, even without the MMPA, a good faith mistaken belief that the formation of a medical marijuana collective is legal due to the vagueness of the CUA does provide a defense to a conviction of conspiracy to sell marijuana.

Under the CUA, a defendant may not merely point to the defense, but has the burden to raise a reasonable doubt about the facts underlying this defense. Because the CUA only provides an affirmative defense, there is no constitutional imperative that a State must disprove beyond a reasonable doubt every fact constituting the defense. Moreover, (1) the trier of fact should consider whether the amount of marijuana possessed or cultivated “reasonably related to the patient’s current medical needs” rather than the patient’s “own personal medical purposes” and (2) a jury instruction under the CUA is not erroneous if it does not define “primary caregiver” as a person who consistently grows and supplies physician approved marijuana for a medical marijuana patient to serve the health needs of that patient.

The Compassionate Use Act (“CUA”) does not require a court to order the return of a reasonable amount of confiscated marijuana where the amount originally possessed by a patient exceeded a reasonable amount. Under Health & Safety Code section 11473.5 all seizures of controlled substances shall be destroyed by order of the court, unless the court finds that the controlled substances were lawfully possessed by the defendant. When a qualified patient possesses and cultivates marijuana in excess of his medical needs his possession and cultivation of marijuana cannot be deemed lawful and section 11473.5 requires its destruction.

A defense under the CUA does not require a defendant to present evidence that he or she was “seriously ill”. A reference to “seriously ill” is omitted from the provision of the CUA that provides a defense to patients. Moreover, the only reference “seriously ill” contains a list of specified illnesses or conditions that ends with a catchall phrase “or any other illness for which marijuana provides relief.” A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious”.

A superior court may set aside an information when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under Penal Code section 1385, even though a defendant has no right formally to make a motion requesting that the magistrate exercise such power. A defendant is denied a substantial right in the context of section 1385 when the magistrate does not clearly indicate an unwillingness to order dismissal on that basis.

Neither the mere suspicion of unethical conduct based solely on the fact that a physician approves or recommends marijuana nor the fact that a physician approves or recommends marijuana for an illness not listed in the CUA provides the Medical Board good cause to subpoena patient records. A patient does not waive their right to privacy by voluntarily presenting a physician’s recommendation to use marijuana to law enforcement. By passing the CUA, the voters intended to facilitate the medical use of marijuana and interpreting the CUA as necessitating the waiver to enjoy its protection would hinder rather facilitate the voters’ intent.

The CUA provides a defense to probation revocation where there is no claim that the probationer’s conduct endangers others or that the probationer diverted marijuana for nonmedical purposes. Moreover, the condition of probation to obey federal criminal laws does not prevent a probationer from asserting a defense under the CUA; the California courts long ago recognized that state courts do not enforce the federal criminal statutes. Also, a “patient” does not have to prove they are “seriously ill” and were in “imminent danger” and could not establish a “legal alternative” to marijuana use to assert a defense under the CUA since the medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by the CUA.

Under the CUA, a physician gives his or her “approval” of a patient’s marijuana use if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient’s illness.

The CUA does not offer a defense to those that provide marijuana to qualified patients through patients’ cooperatives or dispensaries. The CUA only sets forth two classes of persons qualified for the exception: patients and their primary caregivers, not suppliers to marijuana buyers’ cooperatives.

The CUA does not provide a complete immunity from prosecution that would require law enforcement officers to conduct an adequate investigation prior to arrest. Rather, the CUA provides a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial. Although the burden of proof is on a defendant to establish the facts underlying a defense under the CUA, a defendant is required merely to raise a reasonable doubt as to the existence of the facts establishing the defense.

Presentation of a valid physician’s recommendation under the CUA does not require law enforcement to abandon a search for marijuana authorized by a search warrant because the CUA only provides an affirmative defense to be proven by the defendant at trial.

A physician’s recommendation for the medical use of marijuana under the Compassionate Use Act (“CUA”) does not prevent the imposition a probation condition not to use or possess marijuana because it is a standard condition of probation to require the probationer to obey “all” laws and possession of marijuana is a crime under federal law.

The Compassionate Use Act (“CUA”) does not provide a defense to prosecution for transportation of marijuana. The statute on its face exempts only possession and cultivation and fails to mention transportation. As a result, the “reasonably related to the patient’s current medical needs” standard does not apply to transportation of marijuana in a vehicle.

The defense for the use of medical marijuana under the Compassionate Use Act (“CUA”) is not available if a physician’s recommendation or approval is obtained after arrest.

The CUA protections do not extend to the provision of medical marijuana on a non-profit basis since the CUA’s provisions do not include the criminal provisions relating to the sale and the giving away of marijuana. Because a patient may patronize the Cannabis Buyers Club only one time, the defendants’ designation as “primary caregivers” did not meet the consistency required under the CUA.

The CUA provides to prosecution for possession of marijuana and transportation of marijuana, so long as the amount possessed and the amount transported are reasonably related to the patient’s current medical needs. The “patient’s current medical needs” is a question of fact to be determined by the trier of fact.