Medical Marijuana Legal Rights

Greenly_LegalRights_Resized_06_25_2014_SS
The content of this section is copied from CAnorml, an organization that is an impressive force in the marijuana legalization movement. They’ve created an excellent database of resources for patients  to learn all about medical marijuana legal rights. Check them out for a constantly updated source of valuable information.

 

Table of Contents (click any question to navigate):

What is Proposition 215?
What is SB420?
How am I protected?
What illnesses are legally covered for medical marijuana use?
Who qualifies as a physician?
Who is allowed to grow medical marijuana?
How much cannabis can I have?
Is it possible to be arrested?
Can I be charged federally?
Should I get a state issued medical marijuana ID card?
Where can I smoke marijuana?
Can I sell any extra medicine I have?
Can my work decide to drug test me?
Can I grow or use medical marijuana with children in the house?
Where can I get legal help?

What is 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 their personal medical use given the recommendation or approval of a California-licensed physician.

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What is 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 medical marijuana 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.

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How am I protected?

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).

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What illnesses are legally covered for medical marijuana use?

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.

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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. See a list of medical cannabis specialists. Prop. 215 requires physicians to state that they “approve” or “recommend” marijuana. 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. Physicians are protected from federal prosecution for recommending marijuana by the Conant U.S. court decision.

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Who is allowed to grow medical marijuana?

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.

Although Prop. 215 allows patients to grow their own medicine, landlords are not legally obliged to allow it. Many cities and counties have passed zoning ordinances that restrict where patients can grow, in some cases outlawing outdoor cultivation altogether. See local policies.

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.).

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How much cannabis can I have?

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 6 mature or 12 immature plants, and 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. See local limits.

In a state Supreme Court ruling, People v. Kelly (2010), the court held that patients can NOT be prosecuted simply for exceeding the SB 420 limits; however, they can be arrested and forced to defend themselves as having had an amount consistent with their personal medical needs. Patients can be exempted from the limits if their physician specifically states that they need more; but beware of physicians who charge extra for “cultivation” licenses for large amounts. The validity of recommendations for specific plant numbers is doubtful.

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Is it possible to be arrested?

Yes, unfortunately. Many legal medical marijuana 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.

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Can I be charged 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.

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Should I get a state issued medical marijuana ID 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. Patients and caregivers can obtain state ID cards through the health departments of the county where they live (except Sutter and Colusa). The state ID card system has safeguards to protect patient privacy. Police and employers cannot track down patients through the registry.

Many doctors now offer ID cards that can be verified.  If you become a member of our exclusive membership program, Club Greenly, then you will receive a customized ID card that can be used as verification.

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Where can I smoke marijuana?

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.

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Can I sell any extra medicine I have?

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.”

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Can my work decide to drug test me?

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.

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Can I grow or use medical marijuana with children in the house?

There is nothing in state law against this. However it’s advised to keep your medical marijuana away from children. Make sure that you don’t leave edibles around where kids can get them, and keep gardens away from where they play.

In rare cases Child Protective Services has become involved, mostly in cases with large plant numbers, evidence of sales, neglect, or messy divorce proceedings. In such cases, CPS tends not to be understanding about medical marijuana and can always allege child endangerment.

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Where can I get legal help?

Contact a CalNORML Legal Committee Attorney for legal assistance and further education on medical marijuana legal rights.

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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 nonmedical 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.

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