Vol. 25 No. 1- No Limit On Amount Of Medical Marijuana A Qualified Patient Can Possess


Janurary 21, 2010

In a unanimous decision on January 21, 2010, the California Supreme Court, in the case ofPeople v. Kelly, basically eliminated restrictions on the amount of marijuana a qualified patient can possess.

The Court ruled that “the decision of the Court of Appeal below … that insofar as [Health and Safety Code] section 11362.77 burdens a defense under the CUA [Compassionate Use Act] to a criminal charge of possessing or cultivating marijuana, it impermissibly amends the CUA and in that respect is invalid under [California Constitution] article II, section 10, subdivision (c).” The Court also notes that the California Attorney General agrees with this position.

“The Attorney General, who petitioned for this court’s review of the appellate decision, states at the outset of his opening brief: ‘Respondent does not contest the Court of Appeal’s conclusion that section 11362.77 is unconstitutionally amendatory insofar as it limits an in-court CUA defense.’ The Attorney General subsequently concludes that ‘application of section 11362.77’s limits to the in-court CUA defense exceeds the boundaries of legislative power under [the Constitution] by replacing the CUA’s ‘reasonableness’ standard with specified, numeric guidelines.’ Defendant, unsurprisingly, agrees with Attorney General in these respects.”

The Court held that when the legislature passed SB 420, creating the Medical Marijuana Program Act [MMP], which is found in Health and Safety code sections 11362.7 et seq, it created, among other things, a voluntary program that enables a qualified patient to “register and receive an annually renewable identification card that, in turn, can be shown to a law enforcement officer who otherwise might arrest the program participant or his or primary caregiver.”


The MMP also “provides that a ‘qualified patient’ or primary caregiver may ‘posses no more than eight ounces of dried marijuana,’ and may, ‘[i]n addition, … maintain no more than six mature or 12 immature marijuana plants’.”  The Supreme Court notes that a patient may possess more than that if he or she “has a doctor’s recommendation stating that the quantity set out in [the MMP] is insufficient for the patient’s medical needs.”  And, “cities or counties may retain or enact guidelines allowing greater quantities than those set out in [the MMP].”

However, states the Court, section 11362.77 limits the quantity of medical marijuana which can be possessed by one who has the ID card and “also restricts individuals who are entitled, under the CUA, to possess or cultivate any quantity of marijuana reasonably necessary for their current medical needs, thereby burdening a defense that might otherwise be advanced by persons protected by the CUA.”

In a footnote, the Court states that the MMP provides “immunity from criminal liability for other crimes, in addition to the offenses of marijuana possession and cultivation. In the present litigation, however, we address only the propriety of the MMP insofar as it burdens a defense otherwise afforded by the CUA.”

The Court found that the establishment of limitations on the amount of marijuana to be possessed and/or cultivated, conflicted with the intent of Proposition 215, which set no such limits. The Supreme Court referred to the Court of Appeal’s language which stated that the CUA, “does not quantify the marijuana a patient may possess. Rather, the only ‘limit’ on how much marijuana a person falling under the CUA may possess is that it must be ‘reasonably related to the patient’s current medical needs’.”

“[T]he purpose of California’s constitutional limitation on the Legislature’s power to amend initiative statutes is to ‘protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent’.”  Nonetheless, “[t]he Legislature remains free to address a ‘related but distinct area’ … or a matter that an initiative measure ‘does not specifically authorize or prohibit’.”


The Court points out that this case “is unusual, in that both parties agree with the conclusion that the statutory enactment constitutes an unconstitutional amendment,” even though “the opposite conclusion was reached by the Legislative Counsel of California, in an opinion letter dated January 8, 2004.”  In any event, this Court agrees with both Kelly and the Attorney General that the limit set by the Legislature is invalid since it improperly amends an initiative and is contrary to the intent of the public.

The Court concludes by stating that “to the extent section 11362.77 (together with its quantitative limitations) impermissibly amends the CUA by burdening a defense that would be available pursuant to that initiative statute, section 11362.77 is invalid under California Constitution article II, section 10, subdivision (c).”  However, the Court went on to state that “it would be inappropriate to sever section 11362.77 from the MMP and hence void that provision in its entirety.”


From a legal perspective, a qualified patient can possess and/or cultivate as much marijuana as he or she wishes, so long as they will be able to prove in court that their physician recommended more that the eight ounces of dried marijuana, six mature plants or 12 immature plants was needed for their personal medical needs.  That would necessitate that the qualified patient present such evidence if he or she is subject to criminal prosecution.

From a practical perspective, it appears that we are no longer able to present law enforcement with any guidance as to what amount a qualified patient, with or without a government issued ID card, can possess.  One way to look at this is that all persons can be cited and/or arrested when in possession of marijuana, in excess of the statutory amount, and then raise the defense in court.  Another way to look at it is that law enforcement might decide it’s not worth the time and effort to make the arrest, if there are doctors out there who will provide such evidence in those cases.

One thing this case reinforces is that marijuana is still illegal, and that the MMP merely provides for a defense against criminal prosecution.  The MMP did not make marijuana legal in California, it just creates an exemption from prosecution for those who can prove they are qualified patients or primary caregivers, and that the amount of marijuana in their possession is justified under the law.

This case probably makes this area of the law more confusing than ever, therefore, the need for advice and guidance from your designated legal counsel is more important than normal.  As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.