Vol. 23 No. 12- State Will Appeal Medical Marijuana Ruling

June 9, 2008

Just last week, on May 27, 2008, we published a Client Alert Memo (Vol. 23, No. 10) regarding a Court of Appeal decision in the case of People v. Kelly.  In that case, the Court ruled that the statutory cap established by the legislature in SB 420, following the passage of Prop. 215, on the amount of medical marijuana one might lawfully possess, was unconstitutional.  The Court concluded that only the people can amend an initiative, unless the initiative contained language authorizing the legislature to make changes, and Prop. 215 did not.

The Court ruled that the legislation setting the cap (eight ounces of dried marijuana, six mature plants or twelve immature plants) was an amendment which altered or modified the purpose of the initiative, since the initiative contained no such limit.  In our Client Alert, we noted that the decision “continues to ‘muddy the waters’ for law enforcement” in its effort to determine how much “medical” marijuana a “patient” may lawfully posses under California law?

As we indicated, the initiative set the “limit” as the amount needed for the “personal medical purposes of the patient” based on his or her doctor’s recommendation.  We further noted that, without the limit set by the legislature, an officer has no way of knowing if the person in possession is authorized to have that amount, absent their having a written recommendation from their physician with them at the time.

The Attorney General Agrees

It was nice to see that, in an interview last week, Attorney General Jerry Brown agreed with these concerns and announced that his office would appeal the decision to the California Supreme Court. Mr. Brown stated that the legislation was needed in order to clarify a vaguely written ballot measure.  As we pointed out in our Client Alert, the Court stated that the Compassionate Use Act (Prop. 215) “does not give patients a free pass to possess unlimited quantities of marijuana.”  Mr. Brown is quoted as saying that “You do not need an unlimited quantity of marijuana for medicine.  But what is the quantity?”

The Attorney General argues that the legislative cap is not an unauthorized amendment since it is not a hard and fast limit, it is merely a threshold.  In fact, the legislation allows both the recommending doctor and/or individual California counties to set higher limits. However, the cap enabled law enforcement to know that if one was a qualified medical marijuana user, and possessed less than eight ounces, at least in that case, the person was presumptively in possession of a “legal” amount of the drug.  Now that presumption no longer exists.

Apparently, even those who support the use of medical marijuana agree with this concern.  Kris Hermes of Americans for Safe Access, which supports patients use of marijuana, is quoted as saying that the absence of guidelines could prove “detrimental in the long run….  It’s all left up to  the discretion of the police and courts, and that is not good.”  Although one can assume that Hermes’ perspective is different than ours, the concern is the same …. without guidelines, how does an officer know the person is in possess of a “lawful” amount of the drug?


As of this moment, the law is still as the Court ruled in People v. Kelly – there is no statutory limit on the amount of marijuana one may possess for medical use.  The only limit is that set by the individual’s physician, and the user must be able to verify that he or she is not in possession of more than what is recommended.  The reality of that situation means that even the possession of a small amount of marijuana might be illegal, if it is more than what the doctor recommended.

However, if the Attorney General’s petition for review by the California Supreme Court is accepted, the Kelly decision is vacated and the statutory limit is still in place, until and unless the Supreme Court rules to the contrary.  Hopefully, the Attorney General will take swift action in petitioning the Supreme Court for review.

As such, our urging in our Client Alert that you confer with your agency’s legal counsel, and secure advice and guidance from him or her, remains in place.  It is most important that you provide your officers with guidance regarding this issue until it is resolved by the courts. 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.