Vol. 23 No. 17- Newest Medical Marijuana Decision

OCTOBER 22, 2008

On October 16, 2008, the California Supreme Court unanimously denied an application to review a Court of Appeal decision, in the case of San Diego County v. San Diego NORML.  San Diego and San Bernardino counties had sued the state of California claiming that Proposition 215 was unconstitutional since, among other things, it requires counties to issue identification cards to individuals who have a doctor’s recommendation to use marijuana for medical purposes.  The counties argued that California’s Medical Marijuana Program (MMP) authorized persons to engage in conduct which is prohibited under federal law.  The California Supreme Court disagreed.

In fact, all that Proposition 215, and its enabling legislation, accomplished was to declare that “qualified users” of medical marijuana, and/or their “caregivers,” would not be prosecuted under state law, for the cultivation, possession, transfer or use of the drug.  It does not legalize marijuana (even for medical use), nor does it authorize its use.  It merely states that California has decided to not prosecute certain individuals if they provide proof that a physician recommended marijuana for medicinal use.  Any such person is still subject to prosecution under federal law.

Other cases have held that Proposition 215 merely created a defense to such prosecution, and that the user of the drug has the burden of proving that he or she is a qualified user.  The possession of a county issued identification card accomplishes that under the MMP.  The card is issued to an individual after he or she provides proof to the county that he/she has a recommendation from a licensed physician to use marijuana for medical purposes.  The counties argued that the requirement that they issue such cards was in violation of the federal law.

In an earlier decision, in the case of Gonzales v. Raich, the United States Supreme Court concluded that Proposition 215 has no impact on the federal law and, therefore, federal authorities are still free to prosecute medical marijuana patients, their suppliers, and dispensaries which provide the drug.  However, the U.S. Supreme Court noted that individual states are allowed to decide which drugs will be prohibited and subject to prosecution, under their own laws.  The federal government does not require the states to prosecute anyone for the possession of drugs … that is the choice of the states.

Previously, the California Supreme Court also refused to review a Court of Appeal decision, in the case of City of Garden Grove v. Superior Court (Kha), and the City petitioned the U.S. Supreme Court for review.  However, that case involves a much different set of circumstances – that case requires an affirmative act by law enforcement officials which, in our opinion, does violate the federal law.

In the Garden Grove case, an officer was ordered by a superior court judge to return marijuana to a defendant after the court dismissed the prosecution pursuant to Proposition 215.  The transfer of the marijuana is in direct violation of a federal law which prohibits providing marijuana to a person not authorized under federal law to be in possession of the drug.  In the San Diego case, however, the only action required of the counties is the issuance of an ID card which states the holder is not to be prosecuted under California law.  The card merely protects the holder from arrest, by state or local police, for the possession of medical marijuana.  It doesn’t require law enforcement to provide marijuana to the person, as was the case in the Garden Grove matter.


Based upon the decision in the Court of Appeal, and articulated in the recently issued Attorney General’s Guidelines, counties are obligated to issue photo identification cards to persons who provide documentation of a physician’s recommendation to use marijuana for medical purposes.  Under the MMP, that is sufficient proof, when presented to a peace officer, to protect them from arrest for such possession.

Unfortunately, it still remains unclear what the officer should do if the person is in possession of more than eight (8) ounces of cured marijuana (or six mature plants or twelve immature plants).  The MMP established those amounts as the maximum amount qualified patients could possess, unless their doctor recommended more, or the county in which they resided permitted more.  Confusion reigns supreme since, in the case of People v. Kelly, the Court of Appeal declared such limits unconstitutional – that case, however, has been accepted by the California Supreme Court for review.

As always, we urge that you confer with your agency’s attorney for legal advice and guidance on this matter.  Should you wish to discuss it in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.