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PROPOSITION 215, the California Compassionate Use Act, was enacted by the voters and took effect on Nov. 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for thier personal medical use given the recommendation or approval of a California-licensed physician.
SB420, a legislative statute, went into effect on January 1, 2004 as California H&SC 11362.7-.83. This law broadens Prop. 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation “collectives” or “cooperatives”; and establishes a voluntary state ID card system run through county health departments. SB 420 also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest.
WHAT OFFENSES ARE COVERED?
Prop. 215 explicitly covers marijuana possession and cultivation (H&SC 11357 and 11358) for personal medical use. Hashish and concentrated cannabis, including edibles, (HSC 11357a) are also included. Transportation (HSC 11360) has also been allowed by the courts. Within the context of a bona fide collective or caregiver relationship, SB 420 provides protection against charges for possession for sale (11359); transportation, sale, giving away, furnishing, etc. (11360); providing or leasing a place for distribution of a controlled substance (11366.5, 11570).
WHAT ILLNESSES ARE COVERED?
Prop. 215 lists “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, PMS, post-traumatic stress, depression, and substance abuse.
WHO QUALIFIES AS A PHYSICIAN?
Prop. 215 applies to physicians, osteopaths and surgeons who are licensed to practice in California. It does not apply to chiropractors, herbal therapists, etc. Prop. 215 requires physicians to state that they “approve” or “recommend” marijuana. Physicians are protected from federal prosecution for recommending marijuana by the Conant U.S. court decision.
WHO MAY CULTIVATE UNDER PROP. 215?
Patients with a physician’s recommendation and their primary caregivers, defined as, “The individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.” According to a state supreme court decision, People v Mentch (2008), caregivers must supply some other service to patients than just providing marijuana.
As an alternative, SB 420 allows patients to grow together in non-profit “collectives” or cooperatives. Collectives may scale the SB 420 limits to the number of members, but large gardens are always suspect to law enforcement. In particular, grows over 100 plants risk five-year mandatory minimum sentences under federal law. Many local governments have moved to ban or sharply restrict the right of patients to grow collectively. Policy varies greatly around the state (see local limits below.).
HOW MUCH MAY I POSSESS?
Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients are likely to be arrested if they exceed the SB 420 guidelines. SB420 sets a baseline statewide guideline of 1/2 pound (8 oz.) processed cannabis per patient. Individual cities and counties are allowed to enact higher, but not lower, limits than the state standard.
CAN I STILL BE ARRESTED OR RAIDED?
Yes, unfortunately. Many legal patients have been raided or arrested for having dubious recommendations, for growing amounts that police deem excessive, on account of neighbors’ complaints, etc. Once patients have been charged, it is up to the courts to pass judgment on their medical claim.
A landmark State Supreme Court decision, People vs. Mower, holds that patients have the same right to marijuana as to any legally prescribed drug. Under Mower, patients who have been arrested can request dismissal of charges at a pre-trial hearing. If the defendant convinces the court that the prosecution hasn’t established probable cause that it wasn’t for medical purposes, criminal charges are dismissed. If not, the patient goes on to trial, where the prosecution must prove “beyond a reasonable doubt” that the defendant is guilty. Those who have had their charges dropped may file to have their property returned and claim damages.
In some cases, police raid patients and take their medicine without filing criminal charges. In order to reclaim their medicine, patients must then file a court suit on their own. For legal assistance in filing suit for lost medicine, contact Americans for Safe Access.
CAN I BE CHARGED OR PENALIZED FEDERALLY?
Under the U.S. Controlled Substances Act, possession of any marijuana is a misdemeanor and cultivation is a felony. A Supreme Court ruling, Gonzalez v Raich (June 2005), rejected a constitutional challenge by two patients who argued that their personal medical use cultivation should be exempt from federal law because it did not affect interstate commerce. Despite this, federal officials have stated that they will not go after individual patients.
Medical marijuana patients are not protected while on federal park land or forest land in California. CalNORML has received reports of campers and those driving through federal land who are searched, charged with federal possession statutes, and had their medicine confiscated. A California medical recommendation is not a defense in federal court to these charges.
The US Dept of Housing and Urban Development allows local housing authorities to determine their own policies regarding medical marijuana use in HUD housing. Many don’t allow it. In rare cases, users may lose food stamps or other federal benefits if they’re discovered.
SHOULD I GET A STATE I.D. CARD?
Patients are not required to get an ID card to enjoy the protection of Prop. 215, but a state card can provide an extra measure of protection against arrest. The state ID card system has safeguards to protect patient privacy. Police and employers cannot track down patients through the registry. Additionally, reputable dispensaries following the law require a patient I.D. card.
WHERE CAN MARIJUANA BE SMOKED?
SB420 bars marijuana smoking in no smoking zones, within 1000 feet of a school or youth center except in private residences; on school buses, in a motor vehicle that is being operated, or while operating a boat. Patients are advised to be discreet or consume oral preparations in public.
CAN I SELL MY EXCESS MEDICINE?
In general sales of marijuana are NOT permitted under Prop 215. However, SB 420 authorizes legal caregivers and collective/cooperative members to charge for their expenses in growing for others on a “non-profit” basis. Hostile police sometimes misinterpret this to take any monetary proceeds as evidence of felony sales, regardless of whether the grower actually made a profit. Growers who provide for others must either be members of a collective or be bona fide “primary caregivers.”
CAN PATIENTS BE DRUG TESTED AT WORK?
The California Supreme Court has ruled that employers have a right to drug test and fire patients who test positive for marijuana, regardless of their medical use (Ross v RagingWire, 2008). Some employers will excuse patients if they present a valid 215 recommendation. Others won’t. Marijuana use is never permitted in jobs with federal drug testing regulations, such as the transportation industry.
CAN I TAKE MY MEDICAL MARIJUANA ON A PLANE?
Some airports, like Los Angeles and Oakland, are respectful of patients’ rights, but others like Burbank aren’t. If TSA security screeners find marijuana in your luggage, the standard procedure is to turn you over to local law enforcement, who follow state, not federal, law. To avoid hassles, patients are strongly advised NOT to declare their medicine to TSA, but to carry it discreetly like other medicines along with proof of their 215 eligibility.
HOW LONG ARE RECOMMENDATIONS VALID?
Under Prop. 215, a recommendation is valid so long as the doctor says it is. However, SB420 requires ID cards to be renewed annually, and many police refuse to recognize recommendations that are older than a year or so. Courts have ruled that patients must have a valid approval at the time of their arrest, though this can have been oral.
WHAT ABOUT OUT-OF-STATERS?
Prop. 215 arguably applies to anyone with a recommendation from a California physician, regardless of whether they’re a resident, although this has never been tested in court. However, most California physicians and dispensaries refuse to serve out-of-staters. Some other states, such as Arizona, recognize out-of-state patients. Oregon allows out-of-state patients provided they have an Oregon physician’s recommendation.
Text of Prop. 215
Compassionate Use Act of 1996
Health and Safety Code Section 11362.5
Sec. (1) a-b 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 the 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.
(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 to provide 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 rights 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 the 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.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.