Is Medical Marijuana Legal Under Federal Law?
NO. Marijuana is NOT legal under federal law. You can only raise a California medical marijuana defense if you are charged with a marijuana related offense in a California Superior Court (state court). If you are facing a marijuana charge in federal court, you cannot claim that you are a medical marijuana patient. Under federal law, marijuana is illegal even for medical purposes.
What are California Medical Marijuana Defenses?
Under California marijuana laws, a qualified patient can grow, cultivate, possess or transport medical marijuana for the following purposes:
• Personal use
• As a member of a medical marijuana patient collective or co-op
• As a primary caregiver for a qualified medical marijuana patient
Can You Help Me Open A Medical Marijuana Dispensary?
No. You need a transactional or business attorney who sets up businesses and has worked with medical marijuana dispensaries. HOWEVER, if you manage an existing collective in the City of Los Angeles and need assistance in navigating the Medical Marijuana Collective Ordinance that goes into effect on June 7, 2010, we can assist you. You can also call me to ask questions about your medical marijuana case or anything about medical marijuana law. I will answer your quesitons, free of charge.
Here’s how the law regarding co-ops and collectives works:
California Health and Safety Code 11362.775 allows
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 [for violating California marijuana laws].
Who is Qualified as a Primary Caregiver?
Under California Health and Safety Code 11362.5(e), a primary caregiver is someone who is designated by the patient and “has consistently assumed responsibility for the housing, health, or safety of that person.” In 2008, in a case called People v. Mentch (2008) 45 cal. 4th 274, the California Supreme Court defined section 11362.5(e) further and said that at a minimum a primary caregiver under the Compassionate Use Act is someone who:
1) Consistently provides caregiving to a qualified patient.
2) The caregiving involves more than providing medical marijuana to the patient.
3) Provides care at or before the time he or she assumed responsibility for providing the patient with using medical marijuana.
So under Mentch, here’ are some examples of who is not likely to qualify as a primary caregiver:
• Providing someone with marijuana and then driving them to a doctor’s appointment from time to time.
• Providing someone with marijuana and then cleaning their house for them.
• Opening a dispensary and claiming you are a “primary cargiver” for 1,000 patients because you provide them with marijuana.
Practically speaking, in Los Angeles County Courts, a primary caregiver defense requires that the patient or patients are sick..really sick…and really sick with a chronic or terminal condition. The caregiver must show that he or she assumes all the caregiving duties that would be expected in the care for a chronically or terminally ill patient. Providing marijuana as pain management or to stimulate appetite is absolutely legitimate in these situations, and legitimate caregivers have a right to provide marijuana.
But if you are not providing consistent and substantive care for someone who is chronically or terminally ill, think long and hard before claiming you are a “primary caregiver.”
What is a Medical Marijuana Co-Op or Collective?
Under California’s medical marijuana laws, patients may “collectively or co-operatively” cultivate or possess medical marijuana. The laws concerning medical marijuana co-ops and collectives are complex and always changing. In 2008, the California Attorney General put out guidelines for medical marijuana collectives and co-ops, BUT KEEP IN MIND, THESE GUIDELINES ARE NOT THE LAW. Yes, that’s right just because the California Attorney General published it, does not mean it’s the law. These guidelines are what’s known as “persuasive authority” — meaning the courts can and should consider it, but the guidelines do not have the force of an actual law or opinions from an appellate court.
The Difference Between Co-Ops and Collectives
Co-Ops
Co-Ops are business entities that need to file articles of incorporation with the state and comply with sections 12021, 12311(b) and 12300 or California Corporations Code. Co-ops, if they want to call themselves “co-ops” must also comply with Section 54033 and Section 54002 et seq of the Food and Agriculture code. Not many people choose this option, so we’re not going to spend too much time discussing it. If you really want to know about it, call me at (310) 210-0744 and we can discuss it.
Collectives
Legally speaking, collectives are the opposite of co-ops. Unlike co-ops, medical marijuana collectives do not need to file any paperwork. According to the Attorney General Guidelines, collectives must:
• “Be organized with sufficient structure to ensure security, non-diversion of marijuana to illicit markets, and compliance with all state and local laws”
• Operate on a non-profit basis. (Reimbursements are allowed…keep reading, there’s more about that)
• Have a business license, sales tax, and seller’s permit
• A mechanism to verify and periodically review members medical marijuana status and exclude non-qualified applicants
• Members must agree to abide by the same rules as the collective and must not give or sell marijuana to non-members
Are there any other rules? Yes there are, but they are complicated and that’s where lawyers come in. There are major holes in the law concerning marijuana collectives and there are not many appellate court decisions that provide guidance. It is extremely important that you have a Los Angeles criminal defense attorney who understands this.
I am a qualified medical marijuana patient facing felony marijuana charges, can you get my case dismissed at the preliminary hearing?
If you are asking this question you’ve been doing some research or talking to other criminal attorneys. This is a good thing. You may have read online or other attorneys may have told you that they can get your case dismissed at the preliminary hearing. This may sound very tempting to you since it would prevent you the time, expense and risk of taking your case all the way to trial or taking a plea bargain that you aren’t thrilled with.
Yes, it is true, at a preliminary hearing you have the right to raise an affirmative defense that you are a qualified medical marijuana patient. And if you successfully raise that defense, your case may be dismissed. This can also be done after the preliminary hearing in what’s known as a “995 motion.” If the legal mechanisms of this interest you, read a case called People v Mower (2002) 28 Cal.4th 457.
But what everyone raising a medical marijuana defense needs to understand is that at a preliminary hearing, the burden of proof for the prosecution is much lower than the burden of proof at a trial. At a preliminary hearing, all the prosecution needs to show is that there is a “strong suspicion” to believe that the alleged crime occurred. (See Penal Code 872 and People v Slaughter (1984) 35 C3d 629). This is a low standard. Also, the rules of evidence are relaxed, police are allowed to testify using hearsay statements of other police officers (see Penal Code 872(b)) and the defense is limited in the types of defenses it may raise.
There’s also a strategic issue. If a defendant is held to answer after a preliminary hearing, a written transcript of the entire proceeding is given to both the defense and the prosecution. Any witness who testified at the preliminary can be impeached at trial with that transcript. This means that if your expert witness or any other witnesses testifies any differently at trial than at the preliminary hearing, the prosecution will jump all over them (“you said X at the prelim, and now you are saying Y”). If you put on a bunch of witnesses at the preliminary hearing, you’re also handing over a playbook of your defense strategy to the prosecution. If the prosecution’s case is weak, this may be helpful in getting the case dismissed or reduced., but if your defense is not so strong…well let’s just say that before putting on a full-blown affirmative defense at a preliminary hearing, your attorney better know damn well what he or she is doing and have a sense of how this fits into the larger strategic plan.
An Experienced Medical Marijuana Defense Lawyer is Critical for your California Marijuana Defense
Despite what others may tell you, California’s medical marijuana cases are complicated. You need an experienced lawyer who thoroughly understands and is up-to –date on California marijuana laws. The California appellate courts are regularly issuing new opinions which change the law. This is an area of law that requires a lawyer who understands the facts of your case, who understands how to fight the evidence against you, and who understands how to prepare the best defense.
CALL LOS ANGELES CRIMINAL DEFENSE LAWYER
JEROD GUNSBERG OR VALERIE LOPEZ DIRECTLY AT 310-210-0744
FOR A FREE CONSULTATION.
