AG GUIDELINES REGARDING MEDICAL MARIJUANA
AUGUST 27, 2008
The California Attorney General has just released guidelines regarding California’s medical marijuana law, under the authority of Health & Safety Code section 11362.81(d). After the passage of Proposition 215, the Legislature passed SB 420, which created the Medical Marijuana Program Act (MMP), which was codified in the Health & Safety Code. Among other things, it required the Attorney General to generate guidelines in order to clarify the rights and obligations under the MMP. The guidelines are also intended to assist law enforcement officers and the public to understand what is, and is not, permitted under the MMP. The guidelines are designed to reduce the likelihood of medical marijuana finding its way to non-qualified patients and into the illicit market.
As the guidelines were being developed, input was sought from a variety of sources, including law enforcement. As general counsel to the California Police Chiefs Association (CPCA), the California State Sheriffs Association (CSSA), and the California Peace Officers Association (CPOA) I was privileged to be consulted and to participate in their development. Although, as in virtually all matters, reasonable minds can differ regarding different issues, the Attorney General must be commended on the effort expended and the ultimate product generated. It will provide guidance and direction to all those involved with the state’s medical marijuana program.
Summary of the Law
Proposition 215 was passed in 1996 and was enacted 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.” The Proposition did NOT legalize marijuana in California, but merely exempts from criminal prosecution and sanctions, under California law, those who are “qualified users” and/or their “primary caregivers.”
As the Attorney General notes, the federal Controlled Substances Act (CSA) makes it unlawful to “manufacture, distribute, dispense, or possess any controlled substance,” and that includes marijuana. However, he states that the MMP is not unconstitutional, nor does it conflict with the federal CSA, because “California did not “legalize” medical marijuana, but instead exercised the state’s reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition.” It is imperative to remember that marijuana is still a prohibited, controlled, substance under federal law and complying with Proposition 215 does not, in any way, protect one from prosecution by federal law enforcement.
Key Provisions of MMP
The law requires the California Department of Public Health (DPH) to establish a statewide identification card system. It further mandates that all counties participate in the program by, among other things, issuing the DPH identification cards. Those cards will be issued after the applicant proves that he or she is a qualified patient or primary caregiver. The Attorney General states that the “identification cards offer the holder protection from arrest” by California law enforcement. Participation in the program is voluntary. Qualified patients and caregivers, who are not cardholders, still can raise a defense against prosecution but will be required to prove, at that time, that they are among those eligible for immunity from prosecution.
Marijuana transactions are subject to tax by the California State Board of Equalization (BOE) and businesses engaging in such transactions must secure a Seller’s Permit from the BOE.
Although the MMP prohibits punishing physicians for recommending marijuana as a medicine, the Medical Board of California can take disciplinary action against physicians who fail to comply with accepted medical standards when recommending marijuana as a medicine. The guidelines set forth those Medical Board standards and they include, among others, that the physicians take an appropriate history and conduct a good faith examination of the patient; that they develop a treatment plan with objectives; that they periodically review the treatment’s efficacy; and that they keep proper records supporting the decision to recommend the use of medical marijuana. Complaints about doctors who fail to follow those standards should be filed with the Medical Board.
The guidelines define what constitutes a physician’s recommendation, who is a primary caregiver (and it is not one who merely provides a source of marijuana but must be one “who has consistently assumed responsibility for the housing, health or safety” of that person), and who is a “qualified patient.”
The guidelines state that medical marijuana, which was seized by law enforcement, must be returned to the person IF he or she successfully establishes a medical marijuana defense in court, AND the court grants his or her motion for the return of the marijuana, AND the court orders its return. Prior to such a court order, however, there does not appear to be any duty to return the drug since there is no such requirement in Proposition 215, nor in SB 420.
Cooperatives vs. Dispensaries
One of the most important provisions of the guidelines is that which defines cooperative or collectives as set forth in the MMP. The law allows patients and primary caregivers to “associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.” The guidelines state that a cooperative must file articles of incorporation, must not make a profit, must use its earnings for the general welfare of its members, and must “not purchase marijuana from, or sell to, non-members….” The guidelines set forth various rules and obligations for the cooperatives, including membership application and verification “to ensure that marijuana grown for medical purposes is not diverted to illicit markets.”
The guidelines state that “dispensaries that do not substantially comply with the guidelines set forth in sections IV(A) and (B),…are likely operating outside the protections of Proposition 215 and the MMP, and that the individuals operating such entities may be subject to arrest and criminal prosecution under California law.” What is important to note is that such dispensaries violate both federal and state law and should not be permitted by cities or counties to operate within their jurisdictions.
HOW THIS AFFECTS YOUR AGENCY
It is, obviously, important to review the Attorney General’s guidelines in detail. It is crucial to be aware of how the law applies to dispensaries which are, or may be, in your community; how it impacts on use of marijuana by employees; where and under what circumstances medical marijuana can be used; etc. It is important for officers to be aware of these guidelines and how they should be applied, especially when confronted with an issue on the streets.
It is not a matter of whether one agrees or disagrees with the law – the California Supreme Court ruled, in People v. Mower, that the law is constitutional. Furthermore, the California Court of Appeal ruled, in Garden Grove v. Superior Court (Kha), that the medical marijuana shall be returned after the court so orders. As such, and until there are other decisions to the contrary, the law must be followed.