Proposition 64, the California Marijuana Legalization Initiative, was on the November 8, 2016, ballot in California as an initiated state statute.  Supporters referred to the initiative as the Adult Use of Marijuana Act but its official title was the Control, Regulate and Tax Adult Use of Marijuana Act (“the Adult Use of Marijuana Act”).  It was approved by more than 56% of voters on November 9, 2016.

Generally speaking, Proposition 64 makes it legal for individuals over 21 to grow and possess marijuana for personal use under California law; however, it is still a felony under federal law.  The sale and subsequent taxation of recreational marijuana will not go into effect until January 1, 2018, although cultivation, possession and use are allowed immediately.

The question facing law enforcement officials in California is whether peace officers are now allowed to use marijuana?

What the Law Allows

As already stated above, the law decriminalizes marijuana use under state law by adults 21 or older; designates state agencies to license and regulate the marijuana industry; imposes a state excise tax of 15% on retail sales of marijuana and imposes state cultivation taxes on marijuana of $9.25 per ounce of flowers, and $2.75 per ounce of leaves; exempts medical marijuana from some taxation; establishes packaging, labeling, advertising, and marketing standards and restrictions for marijuana products; prohibits marketing and advertising marijuana directly to minors; allows local regulation and taxation of marijuana; and authorizes resentencing and destruction of records for prior marijuana convictions.

Proposition 64 adds sections to the general laws of California, including Health & Safety Code, Section 11362.1 which decriminalizes the use of marijuana, and states in part:

(I)t shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 2I years of age or older to:

(1) Possess, process, transport, purchase, obtain, or give away to persons 2I years of age or older, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;

(2) Possess, process, transport, purchase, obtain, or give away to persons 2I years of age or older, not more than four grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;

(4) Smoke or ingest marijuana or marijuana products; and

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 2I years of age or older.”

Proposition 64 also amended Health & Safety Code 11364.45 and that is specifically relevant to the question posed above, regarding peace officers’ use of marijuana for medical or, now, recreational use.

H&S Code section 11364.45(f), reads as follows: Nothing in Section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: (f) The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”  (Emphasis added.)

Since many, if not virtually all, law enforcement agencies receive federal grants to some degree, and since those grants all require that the entity guarantees a drug free workplace, knowingly allowing employees to consume marijuana might jeopardize those grants.

More significantly, however, is that law enforcement officers swear an oath to uphold both the state and federal constitutions, and most law enforcement agencies have policies requiring officers to obey all laws.

Compliance with federal law – which prohibits marijuana cultivation, use, possession, etc. – would appear to give law enforcement employers the authority, and/or duty, to require that its officers comply with that federal law.

Medical Marijuana Use

In addition, as to medical marijuana, several years ago the California Supreme Court held, in Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Cal.4th 920, that “Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.  Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”

As such, even the use of marijuana for medical reasons does not preclude an employer from refusing to hire any applicant, and/or terminating any employee, who uses the drug.

Therefore, no employer needs to allow the use of marijuana for recreational purposes by its employees, either pursuant to the employers own policies or to comply with federal law.

The decision regarding peace officers will, obviously, be made by each individual agency but, again, it is important to note that peace officers take an oath to uphold, and obey, all state and federal laws.

As with all legal issues, it is imperative to seek out advice and guidance from your agency’s designated legal advisor.  This new legal issue mandates securing such advice and guidance before undertaking any action.

However, and as always, if you wish to discuss this in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.