August 31, 2005

As most of you are probably aware, last week the California Highway Patrol issued an updated medical marijuana policy to all CHP officers.  The new policy states that, when making a traffic stop, no enforcement action shall be taken against an individual who is in possession of marijuana, if that person claims the Health & Safety (H&S) Code exemption, pursuant to sections 11362.5 and/or 11362.7, and he/she possesses a state or local governmental medical marijuana ID card, or a signed letter from a physician recommending the use of marijuana.

The H&S exemption allows a patient or primary care giver to possess eight ounces of dried marijuana, and no more than six mature or twelve immature marijuana plants. The CHP policy points out that “the state limit of eight ounces does not apply if there is a higher limit in the locality in which the individual is stopped.  Authorized local limits supersede the state limit.” Obviously, the CHP officer will need to know what limits, if any, have been set by that local community, in order to determine whether a violation has occurred.

The policy requires an officer to (1) review the state ID card for validity; and (2) contact, through dispatch, the Department of Health Services internet website for verification; or (3) call the phone number on a local government ID card to verify its validity; or (4) contact the physician who provided the written authorization.  There is no guidance in the policy regarding what the officer should do with the motorist while these efforts are underway, nor does the policy state what should occur if the officer is unable to verify the validity of the documents.

What, for example, happens at 2:00 a.m. when none of the persons/agencies identified are open for business?  The CHP policy provides that “officers shall use sound professional judgment to determine the validity of the person’s medical claim.” Again, what does an officer do if he or she is unable to obtain verification?


The news articles reporting the implementation of this policy stated that advocates for medical marijuana use intend to utilize the CHP policy as a standard for all law enforcement agencies in California .  If a local agency continues to confiscate marijuana, when someone has an ID card or letter from a doctor, that agency will be confronted with the CHP policy.  There is no reference in the CHP policy to the recent United States Supreme Court decision, in Raich v. Gonzalez (see J&M website Client Alerts, June 9, 2005), which held that possession of marijuana, even for medical purposes, is still a felony under federal law.

Does this policy have any impact on your agency? Unfortunately, it might. The CHP policy is NOT binding on any other law enforcement agency; however, it will be used as a model or standard by those suing law enforcement agencies, when they seize marijuana which is claimed to be for medical use.  It is more important than ever, therefore, for each agency to develop its own policy regarding seizure of marijuana under these circumstances.

The on-going conflict between the ten (10) states which have laws authorizing marijuana for medical purposes, and the federal government which prohibits it, continues to bedevil law enforcement.  It is a classic example of being between “a rock and a hard place.”

As always, and especially in a matter as complicated as this, legal advice and guidance is imperative. Written advice and guidance from the agency’s legal advisor will be vital to assist in defending against such suits.  As always, if you wish to discuss this in greater detail, please feel free to call us at (714) 446-1400 or contact me by e-mail at mjm@jones-mayer.com.