Vol. 17 No. 6- Medical Marijuana Arrests

July 22, 2002

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer



Last Thursday, July 18,2002, the California Supreme Court issued an opinion in the case of People v. Mower, 2002 DJDAR 8025, unanimously holding that possession of marijuana for medical use is not punishable under California law.

Furthermore, the Court held that one arrested for possession need not go through a trial, but can move to dismiss the charge before proceeding to trial.

Proposition 215, codified as P.C. 11362.5(d), “…not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial.” The Court went on to state that “…section 11362.5(d) renders… possession and cultivation of the marijuana noncriminal for a qualified patient or primary caregiver.”

In order to be successful, “…a defendant must show that…he or she was indicted or committed ‘without reasonable or probable cause’ to believe that he or she was guilty … in view of his or her status as a qualified patient or primary caregiver.” In other words, one who claims the possession of marijuana is for medical reasons, must prove that he or she is using the substance based on a doctor’s recommendation.

Does this mean that law enforcement should no longer arrest one in possession of marijuana if, for example, he or she has a note, letter, or prescription from a doctor? Absolutely not! The Court stated that section 11362.5(d) should not “…be interpreted to grant such persons immunity from arrest.”

“Even when law enforcement officers believe that a person who ‘possesses or cultivates marijuana’ is a ‘patient’ or ‘primary caregiver’ acting on the ‘recommendation or approval of a physician,’ they may – as in this case – have reason to believe that the person does not possess or cultivate the substance for the personal medical purposes of the patient.” Proposition 215 created a defense to the charge of illegal possession of marijuana – it did NOT create immunity from arrest.

In addition, neither Prop. 215 nor this case decision has any impact on federal law. In the case of United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, the United States Supreme Court upheld the federal prohibition on possessing marijuana and ruled that there was no “medical necessity” defense under the Controlled Substances Act (21 U.S.C. 801 et seq.). It is still a felony under federal law.

Jones & Mayer is pleased and honored to provide this support to law enforcement. We will continue to monitor these cases and keep you all apprised of their progress. As always, should you wish to discuss these matters in greater detail, please feel free to contact Martin Mayer at 714-446-1400 or at mjm@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]