California Medical Marijuana Laws – The Compassionate Use Act, Prop 215 and Health and Safety Code 11362.5
In 2012, Colorado and Washington voters decided that it was time for any adult to be legally able to buy, sell, possess, and use marijuana for any reason. In that same election year, California voters narrowly decided to vote against a similar law. Though many surveys and polls suggest that the public’s attitude might be shifting towards legalization, the state’s laws still currently prohibit the possession, use, and sales of marijuana for recreational use.
However, there is a notable exception to California’s general ban on marijuana. In 1996, California voters showed lawmakers that, while they were not ready to lift the general ban on the drug, they do recognize marijuana as a legitimate medical treatment for some serious and chronic illnesses. Thus, voters passed Proposition 215, the Compassionate Use Act, enacted under California Health and Safety Code 11362.5. Under this law, California grants a legal exception to criminal prosecution for those who, at the recommendation of a licensed physician, use marijuana for the purpose of treating serious medical conditions.
As with any complicated law, California’s Compassionate Use Act is a tangled web of phrases and loopholes that leave most people at a loss as to whether their conduct is or is not legal. To help clear up that confusion, we offer you this guide to explain the purpose of medical marijuana laws under the Compassionate Use Act, to describe who it protects from prosecution under California’s medical marijuana laws, and to answer some of the common questions about the legal use of medical marijuana.
The Purposes of the Medical Marijuana Exception
The text of Health and Safety Code 11362.5 contains several key phrases and sentences. First, the text spells out the three purposes for medical marijuana laws specified under the Compassionate Use Act:
- “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 person’s 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.”1
This paragraph explains that the purpose of the medical exception to California’s marijuana ban is to treat seriously ill persons, and then provides a list of some of the conditions for which a doctor might provide a recommendation to use the drug to alleviate those conditions.
Notice the clause “any other illness for which marijuana provides relief.” This is a “catch-all” phrase, meaning that the list of illnesses in this paragraph is not meant to be a complete list, and that physicians are allowed to make the decision as to whether medical marijuana would be an effective and appropriate treatment for a serious illness not listed in the text of medical marijuana laws. Generally, the “other illness” must meet one of the following criteria for marijuana to be legally recommended:
- The illness substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336); or
- If not alleviated, may cause serious harm to the patient’s safety or physical or mental health.2
Next, medical marijuana laws under the Compassionate Use Act have the purpose of preventing prosecutions:
- “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.”3
This paragraph provides that two groups of people are immune to prosecution for obtaining and/or using medical marijuana: the patient himself or herself, and the person who acts as a primary caregiver for the patient. Under medical marijuana laws, a primary caregiver is the person whom the patient designates is their primary caregiver, and who has “consistently assumed responsibility for the housing, health, or safety of [the patient].”4 The primary caregiver must also be at least 18 years old.
The final purpose of medical marijuana laws under the Compassionate Use Act is to encourage the use of marijuana as a medical treatment:
- “To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
Who is Exempt from Prosecution Under California Medical Marijuana Laws?
Next, we look to medical marijuana laws to see how it prevents the prosecution of patients, primary caregivers, and physicians in relation to medical marijuana. First, the medical marijuana laws specified under the Compassionate Use Act protects doctors from not only criminal sanctions, but from professional discipline by the Medical Board of California:
“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.”
Next, the Compassionate Use Act states which criminal acts will not apply to patients and their primary care givers:
“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.”
This paragraph is extremely important, and more complicated than it might first appear. It prevents two laws (Health and Safety Code 11357 and 11358) from applying to two groups of people (patients and primary caregivers) for two types of acts (possession and cultivation of marijuana). However, it also has been interpreted that a patient or a primary caregiver can also legally transport marijuana for the same purpose.
The paragraph also uses the phrase “personal medical use of the patient.” This means that the possession and cultivation are only legal insofar as it is for the patient’s own use in treating his or her condition. This means that growing or possessing an excess of the drug could still be illegal, and it also means that the use of marijuana by the primary caregiver is illegal (unless he or she also has a medical recommendation for a serious illness).
Under these medical marijuana laws, a patient or primary caregiver can legally:
- possess up to eight ounces of dried marijuana;
- grow up to six mature or 12 immature marijuana plants; or
- possess or grow a greater amount consistent with the patient’s reasonable needs with a doctor’s recommendation.
The Exception to the Exception in California Marijuna Laws Under the Compassionate Use Act
Finally, there is an important caveat to the exception for medical marijuana within the text of Health and Safety Code 11362.5:
“Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.”5
Essentially, this paragraph means that the medical marijuana exception is limited by two other important policies: the safety of others, and the prevention of non-medical use. So, for example, the medical marijuana exception is not a defense to prosecutions for driving under the influence of a drug under California Vehicle Code section 23152. Similarly, a recommendation for medical marijuana cannot be used as a free pass to allow others to use a patient’s legal supply of the drug. Other prohibited activities include the use of medical marijuana within 1,000 feet of a school, youth center, or recreational area (unless used within a residence).
Frequently Asked Questions About Medical Marijuana Laws
At Wallin & Klarich, we commonly receive questions regarding medical marijuana laws. These include:
- Do I need a medical marijuana identification card?
No. In fact, another medical marijuana law, California Health and Safety Code 11362.71(f), states that it is not required to obtain an ID card to claim protection under medical marijuana laws and the Compassionate Use Act. However, it is beneficial to have the card because it is evidence in your favor that you have a medical condition for which a licensed physician has recommended the use of marijuana. In fact, it is common place for medical marijuana distributors to require you to present your medical marijuana identification card in order to avoid any criminal liability or legal actions against them.
- Can a prosecutor use my medical marijuana card against me in their case?
That would depend on the case. Due to medical record privacy laws, the information contained on a medical marijuana ID card is minimal. In fact, the only information contained on the card is its registry number, which tells the police only whether the card is valid or expired. So, as long as the card is valid, there is not much that the card can give to the prosecutor’s case.
However, there are crimes that you could be charged with that are related to the card you presented to the officer at your arrest. For example, if the information on the card is false (such as a fabricated ID number), or if the card was fraudulently obtained, you could face criminal charges.
Also, keep in mind that medical marijuana laws do not protect medical marijuana ID cardholders who either endanger others through the use of the drug, or who use it for non-medical purposes. You can still be arrested and charged for these crimes.
- How can I get a medical marijuana card?
You must apply in person at the office of the health department for the county in which you live, and you will be charged a fee for the card. Although the county’s health department is responsible for issuing the ID, the card is effective throughout California. Contact your county’s health department for an appointment, and to determine the fee for the card.
You will need to bring the following with you to your appointment:
- A copy of a licensed physician’s recommendation for the use of marijuana to treat your illness;
- A valid government-issued photo ID, such as a California-issued Driver’s License or ID Card, a U.S. Passport, or a Veteran’s Administration ID Card;
- A photo taken at the county’s program office; and
- Proof of residency in the county (check with your county’s health department for valid documentation requirements).
You can also apply through the same process to get your primary caregiver a card, but you and your caregiver must both be present for application at the county health department.
- Can I go to any doctor to get a recommendation?
Under California medical marijuana laws and the Compassionate Use Act, any doctor who is licensed by the Medical Board of California to practice medicine in this state is capable of providing a recommendation for the use of marijuana to treat a serious illness, and the recommendation can be verbal or written. However, the federal Controlled Substances Act still considers marijuana illegal, and not all doctors consider the drug to be medically useful. For those reasons, there are many doctors will not provide either a verbal or written recommendation.
A local dispensary can provide you with a list of doctors who are willing to recommend the drug’s use for treatment of legitimate illnesses.
- What if I am arrested for marijuana possession but I have complied with medical marijuana laws?
Medical marijuana laws under the Compassionate Use Act gives you an affirmative defense to many marijuana-related crimes, including illegal marijuana possession. This means you will have to introduce evidence of your legal right to possess, transport, or use the drug to treat a serious illness. You or your primary caregiver will need to show the following:
- You had or have a serious medical condition (as defined above);
- You had a recommendation from a licensed physician to use marijuana to treat the condition; and
- The amount possessed, transported or used was reasonably related to your medical needs at the time.
If you are the primary caregiver, you must additionally prove that you meet the definition of primary caregiver as discussed above, and that you were taking care of the patient before the doctor recommended using medical marijuana to treat the patient’s illness.
Remember, the doctor’s recommendation can be verbal, which means that your doctor can testify in court regarding your medical condition, and the usefulness of using marijuana to treat your condition. The testimony is valid even if the recommendation was never written down.
Once you introduce this evidence, the prosecutor must then prove that your use of medical marijuana was not justified. If he or she cannot do so, the charges cannot stand.
- I’ve heard concentrated cannabis (hashish) is better for certain illnesses. Can I use my medical marijuana recommendation for that instead?
Under California medical marijuana laws, concentrated cannabis (hashish) is considered to be marijuana, and therefore legal for patients to possess, transport, or use in an amount reasonable related to their condition. However, you may not produce hashish through chemical processes, such as using chemical solvents.
- Does my medical marijuana card allow me to operate a dispensary?
As part of medical marijuana laws under the Compassionate Use Act, California Health and Safety Code 11362.775 allows dispensaries to be owned and operated by “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.”6
There are strict state requirements regarding the operation of dispensaries, and cities and counties can limit dispensaries according to their own regulations. Before opening a dispensary, you should consult with a medical marijuana attorney to verify that you can legally operate one in your city or county.
Contact Wallin & Klarich For Help With Your Medical Marijuana Case
Suffering from a serious medical condition is stressful enough without having the burdens and fears that come with criminal charges. If you are using marijuana to treat your condition, and you are facing charges in connection with your use of the drug, you should meet with an experienced medical marijuana attorney right away. At Wallin & Klarich, our medical marijuana attorneys have over 40 years of experience successfully defending people like you who have been wrongfully accused of marijuana crimes. We can help you, too. We are committed to providing you with the professional legal representation you deserve, and to helping you overcome this difficult situation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich medical marijuana attorney experienced in California criminal defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
1. Cal. Health & Saf. Code § 11362.5(b)(1)(A).↩
2. See, Cal. Health & Saf. Code § 11362.7(h).↩
3. Cal. Health & Saf. Code § 11362.5(b)(1)(b).↩
4. Cal. Health & Saf. Code § 11362.5(e).↩
5. Cal. Health & Saf. Code § 11362.5(b)(2).↩
6. Cal. Health & Saf. Code § 11362.775 ↩