Living within acceptable risks
This booklet is not a substitute for legal counsel. The issues discussed in it are either factual or subject to legal interpretation and changes in law. Before undertaking the cultivation or provision of medicinal cannabis, it is always a good idea to spend the time and money to talk with a knowledgeable attorney. Even if what a person is doing is legal under state law, there is risk. A patient can still be prosecuted in state court. Primary caregivers are especially at risk because supplying medicine may be charged as distribution. Anyone should be aware how serious the offense could be, how likely they are to be held criminal, and whether they can handle its consequences. In any "drug" case, the presence of a gun can often be used to add charges and increase sentences. If a case goes federal, a five-year mandatory sentence begins at 100 plants, and 10-years at 1000 plants, so it is important to balance legal rights against the ability to endure persecution.
In the end, you make the choice and take the risks.
Many layers of legal process
What follows is not a comprehensive listing, but serves merely as a general outline of what might occur at some point if you are involved with medical marijuana. Not everything here applies to every circumstance.
It may never happen, but here is a glimpse of the entanglements that may await.
Talk to a knowledgeable attorney. If you don't already have an attorney, ask some questions. What do they offer? Do they know about the sections of law in this booklet? What is it going to cost? You need to balance money against freedom. Remember you can also educate your lawyer, but you have much more on the line than they do -- so choose well and be ready to do some of your own leg work. If you can't afford an attorney, after arraignment you are entitled to a public defender.
Contact with law enforcement is often triggered by some minor incident, such as an officer thinking they smell cannabis during a routine traffic pullover or cannabis left out in plain sight. This is the time to exercise your right to remain silent (until you have an attorney on hand) other than to refuse to consent to a search. If the officer locates medicine, the defense should be asserted immediately, such as to say "that medicine is legal under Health and Safety Code 11362.5" and showing a medical approval or card. This is not the time to make spontaneous statements or argue your case. What you say might be different than what the officers hear or write down. The police are not there to help you, they are there to build a case against you and send you to prison if possible. Ask if you are under arrest or if you can leave. If you can leave, do so. If you are under arrest, ask to see an attorney at once, then be silent.
Booking is when the police transport and process a suspect after an arrest and put them in a holding cell.
Consider getting an investigator or an expert witness. If your case involves more than a very small amount of cannabis, their participation can make a big difference. An expert can consult with your attorney, analyze evidence, prepare reports and testify on your behalf at a hearing or a trial. If you can't afford to pay for one, ask your attorney to file an Evidence Code section 730 ex parte motion for the court to pay the cost.
Plea negotiations occur when your attorney and the DA argue between getting your charges dismissed or altered and them throwing the book at you. If you can have them talking before charges are filed, so much the better. It's never too soon to bring in legal counsel to resolve the issues.
Reading of charges and bail hearing. An opportunity to make a record that it was legal medical marijuana, ask for dismissal of charges, return of property and release on your own recognizance, known as "O.R."
Arraignment is the defendant's first hearing, to enter the plea. A demurrer is an alternative to entering a plea. Continue the arraignment and tell the judge you need to review the police reports and may be filing a demurrer.
Preparations. During the discovery process, you learn the prosecutor's evidence against you and glean what areas need to be addressed. You may wish to consult with an expert witness or investigator. Plea bargaining, phase two: Ask the DA to reconsider and dismiss, think about what they want you to plead guilty to and all the consequences of your plea. Can you comply with the requirements, or is it creating future problems for you?
Mower Hearing, a PC 995 hearing or common law (speaking) motion to dismiss, is a proceeding before a judge prior to trial in which a person gets to wage a medical defense with the burden of proof beyond reasonable doubt placed upon the prosecution.
Williamson Hearing is a PC section 1000 pre-trial process for growers who are not medical users or whose approvals are invalid, allowing them to refute charges of commercial intent and get diversion based on a preponderance of the evidence.
Preliminary Hearing is where a prosecution presents to a judge witnesses and other evidence of guilt, and the defendant is able to present a defense and attempt to win a dismissal. The court only requires the prosecutor to show probable cause. This means something gives the court a strong suspicion of guilt, so it usually holds the accused over for trial. This is an opportunity to hear the government's case and have the option of whether or not to respond. If the judge dismisses the charges, a prosecutor may be able to refile them, anyway.
Evidentiary Hearing is for a judge to decide what evidence to admit and what to suppress. Sometimes the decisions help the defense, other times they hurt it. In any case, these decisions shape the case and can form the basis for an appeal in case of conviction.
Jury Trial is when a jury of 12 (plus several alternates) hears evidence, testimony and arguments, then renders a verdict of either guilty or not-proved-guilty-beyond-reasonable-doubt. At this point the burden of proof again favors the defendant and the defense goal is full acquittal. There may also be a hung jury, meaning that it cannot come to a unanimous decision and the charges may or may not be retried. If there is a conviction, there may be basis for an appeal.
Return of Property Hearing after dismissal or acquittal seeks to clarify that your legal property is not contraband and have the court order the return of medicine, equipment, etc.
Sentencing is after a conviction when evidence is considered and points argued to determine your sentence. Mitigating circumstances are considered in both state and federal courts.
Health & Safety Code 11018: Marijuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
HS 11006.5: Concentrated cannabis means the separated resin, whether crude or purified, obtained from marijuana.
HS 11362.77(d): Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of [medical] marijuana under this section.
Transportation of Cannabis:
VC 23222. (b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100).
Also see: HS 11360 (below, under processing and sales).
Possession of Cannabis:
HS 11357 (a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison.
(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding other provisions of law, if such person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, the provisions of Sections 1000.1 and 1000.2 of the Penal Code shall be applicable to him, and the court shall divert and refer him for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept him. If the person is so diverted and referred he shall not be subject to the fine specified in this subdivision. If no community program will accept him, the person shall be subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.
(c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. ...
Cultivation of Cannabis:
HS 11358. Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison.
Possession of Cannabis for sales:
HS 11359. Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.
Processing, transportation and sales of Cannabis:
HS 11360. (a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.
(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.
Medical marijuana, The Compassionate Use Act:
HS 11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
(b) (1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the persons health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, Primary caregiver means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person.
SB 420: The voluntary ID card system:
HS 11362.715(a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county's designee on a form developed and provided by the department:
(1) The name of the person, and proof of his or her residency within the county.
(2) Written documentation by the attending physician in the person' s medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate.
(3) The name, office address, office telephone number, and California medical license number of the person's attending physician.
(4) The name and the duties of the primary caregiver.
(5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity.
HS 11362.74. (a) The county health department or the county's designee may deny an application only for any of the following reasons:
(1) The applicant did not provide the information required by Section 11362.715, and upon notice of the deficiency pursuant to subdivision (d) of Section 11362.72, did not provide the information within 30 days.
(2) The county health department or the county's designee determines that the information provided was false.
(3) The applicant does not meet the criteria set forth in this article.
(b) Any person whose application has been denied pursuant to subdivision (a) may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county's designee or by a court of competent jurisdiction.
(c) Any person whose application has been denied pursuant to subdivision (a) may appeal that decision to the department. The county health department or the county's designee shall make available a telephone number or address to which the denied applicant can direct an appeal.
HS 11362.745. (a) An identification card shall be valid for a period of one year....
HS 11362.76. (a) A person who possesses an identification card shall:
(1) Within seven days, notify the county health department or the county's designee of any change in the person's attending physician or designated primary caregiver, if any.
(2) Annually submit to the county health department or the county' s designee the following:
(A) Updated written documentation of the person's serious medical condition.
(B) The name and duties of the person's designated primary caregiver, if any, for the forthcoming year.
(b) If a person who possesses an identification card fails to comply with this section, the card shall be deemed expired. If an identification card expires, the identification card of any designated primary caregiver of the person shall also expire.
(c) If the designated primary caregiver has been changed, the previous primary caregiver shall return his or her identification card to the department or to the county health department or the county's designee.
(d) If the owner or operator or an employee of the owner or operator of a provider has been designated as a primary caregiver pursuant to paragraph (1) of subdivision (d) of Section 11362.7, of the qualified patient or person with an identification card, the owner or operator shall notify the county health department or the county's designee, pursuant to Section 11362.715, if a change in the designated primary caregiver has occurred.
HS 11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.
(b) Subdivision (a) shall apply to all of the following:
(1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.
(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person.
(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360.
HS 11362.77. (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient' s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).
(d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.
(e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later than December 1, 2005, and may be made only after public comment and consultation with interested organizations, including, but not limited to, patients, health care professionals, researchers, law enforcement, and local governments. Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research.
(f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article.
HS 11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.
HS 11362.78. A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.
HS 11362.785. (a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
(b) Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
(c) Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.
(d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.
HS 11362.79. Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances:
(a) In any place where smoking is prohibited by law.
(b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence.
(c) On a schoolbus.
(d) While in a motor vehicle that is being operated.
(e) While operating a boat.
HS 11362.795. (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
(2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
(4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
(b) (1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
(2) During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
(3) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
(4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
HS 11362.8. No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee's role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations, or both, shall be governed by Section 11362.5.
State laws may change during the legislative session or at any time in the courts. For the text of any California law or the status of pending state legislation go to:
Safe Access Now hopes you find this booklet to be useful. We wish to reiterate that this is not a substitute for professional legal or medical advice, and encourage you to urge your officials to adopt Safe Access Guidelines. That means allowing as a safe harbor from arrest three to six pounds of cannabis per patient. To obtain that amount, any garden with 100 to 200 square feet of canopy should be exempt from arrest or prosecution. Be sure to visit our website: