California’s Proposition 215, the California Compassionate Use Act, was enacted by the voters and took effect on Nov. 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for their personal medical use given the recommendation or approval of a California-licensed physician.
SB420, a legislative statute, went into effect on January 1, 2004 as California H & SC 11362.7-.83. This law broadens Prop. 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation “collectives” or “cooperatives”; and establishes a voluntary state ID card system run through county health departments. SB 420 also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest
WHAT OFFENSES ARE COVERED?
Prop. 215 explicitly covers marijuana possession and cultivation (H & SC 11357 and 11358) for personal medical use. Hashish and concentrated cannabis, including edibles, (HSC 11357a) are also included. Transportation (HSC 11360) has also been allowed by the courts. Within the context of a bona fide collective or caregiver relationship, SB 420 provides protection against charges for possession for sale (11359); transportation, sale, giving away, furnishing, etc. (11360); providing or leasing a place for distribution of a controlled substance (11366.5, 11570).
WHAT ILLNESSES ARE COVERED?
Prop. 215 lists “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, PMS, post-traumatic stress, depression, and substance abuse.
WHO QUALIFIES AS A PHYSICIAN?
Prop. 215 applies to physicians, osteopaths and surgeons who are licensed to practice in California. It does not apply to chiropractors, herbal therapists, etc. Prop. 215 requires physicians to state that they “approve” or “recommend” marijuana. Physicians are protected from federal prosecution for recommending marijuana by the Conant U.S. court decision.
WHO MAY CULTIVATE UNDER PROP. 215?
Patients with a physician’s recommendation and their primary caregivers, defined as, “The individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.” According to a state supreme court decision, People v Mentch (2008), caregivers must supply some other service to patients than just providing marijuana.
As an alternative, SB 420 allows patients to grow together in non-profit “collectives” or cooperatives. Collectives may scale the SB 420 limits to the number of members, but large gardens are always suspect to law enforcement. In particular, grows over 100 plants risk five-year mandatory minimum sentences under federal law. Many local governments have moved to ban or sharply restrict the right of patients to grow collectively. Policy varies greatly around the state. (see local limits below.).
HOW MUCH CAN I POSSESS OR GROW?
Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients are likely to be arrested if they exceed the SB 420 guidelines. SB420 sets a baseline statewide guideline of 6 mature or 12 immature plants, and 1/2 pound (8 oz.) processed cannabis per patient. Individual cities and counties are allowed to enact higher, but not lower, limits than the state standard. Patients can be exempted from the limits if their physician specifically states that they need more for their own personal use; but beware of physicians offering “cultivation” licenses for large amounts.
In a state Supreme Court ruling, People vs. Kelly (2010), the court held that patients can NOT be prosecuted simply for exceeding the SB 420 limits; however, they can be arrested and forced to defend themselves as having had an amount consistent with their personal medical needs. Patients can be exempted from the limits if their physician specifically states that they need more; but beware of physicians who charge extra for “cultivation” licenses for large amounts. The validity of recommendations for specific plant numbers is doubtful.
CAN I STILL BE ARRESTED OR RAIDED?
Yes, unfortunately. Many legal patients have been raided or arrested for having dubious recommendations, for growing amounts that police deem excessive, on account of neighbors’ complaints, etc. Once patients have been charged, it is up to the courts to pass judgment on their medical claim.
A landmark State Supreme Court decision, People vs. Mower, holds that patients have the same right to marijuana as to any legally prescribed drug. Under Mower, patients who have been arrested can request dismissal of charges at a pre-trial hearing. If the defendant convinces the court that the prosecution hasn’t established probable cause that it wasn’t for medical purposes, criminal charges are dismissed. If not, the patient goes on to trial, where the prosecution must prove “beyond a reasonable doubt” that the defendant is guilty. Those who have had their charges dropped may file to have their property returned and claim damages.
In some cases, police raid patients and take their medicine without filing criminal charges. In order to reclaim their medicine, patients must then file a court suit on their own.
CAN I BE CHARGED OR PENALIZED FEDERALLY?
Under the U.S. Controlled Substances Act, possession of any marijuana is a misdemeanor and cultivation is a felony. A Supreme Court ruling, Gonzalez vs. Raich (June 2005), rejected a constitutional challenge by two patients who argued that their personal medical use cultivation should beexempt from federal law because it did not affect interstate commerce. Despite this, federal officials have stated that they will not go after individual patients.
Medical marijuana patients are not protected while on federal park land or forest land in California. CalNORML has received reports of campers and those driving through federal land who are searched, charged with federal possession statutes, and had their medicine confiscated. A California medical recommendation is not a defense in federal court to these charges.
The US Dept of Housing and Urban Development allows local housing authorities to determine their own policies regarding medical marijuana use in HUD housing. Many don’t allow it. In rare cases, users may lose food stamps or other federal benefits if they’re discovered.
SHOULD I GET A STATE I.D. CARD?
Patients are not required to get an ID card to enjoy the protection of Prop. 215, but a state card can provide an extra measure of protection against arrest. Patients and caregivers can obtain state ID cards through the helth departments of the county where they live( except Sutter and Colusa). The state ID card system has safeguards to protect patient privacy. Police and employers cannot track down patients through the registry.
WHERE CAN I GROW MEDICINE?
Although Prop. 215 allows patients to grow their own medicine, landlords are not legally obliged to allow it. Many cities and counties have passed zoning ordinances that restrict where patients can grow, in some cases outlawing outdoor cultivation altogether.
CAN I SELL MY EXCESS MEDICINE?
In general sales of marijuana are NOT permitted under Prop 215. However, SB 420 authorizes legal caregivers and collective/cooperative members to charge for their expenses in growing for others on a “non-profit” basis. Hostile police sometimes misinterpret this to take any monetary proceeds as evidence of felony sales, regardless of whether the grower actually made a profit. Growers who provide for others must either be members of a collective or be bona fide “primary caregivers.”
CAN PRISONERS AND PROBATIONERS USE MEDICAL MARIJUANA?
SB420 allows probationers, parolees, and prisoners to use medical marijuana and to ask a judge to verify their rights. However, medical marijuana is regularly disallowed in jails and prisons.
CAN PATIENTS BE DRUG TESTED AT WORK?
The California Supreme Court has ruled that employers have a right to drug test and fire patients who test positive for marijuana, regardless of their medical use (Ross vs. RagingWire, 2008). Some employers will excuse patients if they present a valid 215 recommendation. Others won’t. Marijuana use is never permitted in jobs with federal drug testing regulations, such as the transportation industry.
CAN I TAKE MY MEDICAL MARIJUANA ON A PLANE?
Some airports, like Los Angeles and Oakland, are respectful of patients’ rights, but others like Burbank aren’t. If TSA security screeners find marijuana in your luggage, the standard procedure is to turn you over to local law enforcement, who follow state, not federal, law. To avoid hassles, patients are strongly advised NOT to declare their medicine to TSA, but to carry it discreetly like other medicines along with proof of their 215 eligibility.
HOW LONG ARE RECOMMENDATIONS VALID?
Under Prop. 215, a recommendation is valid so long as the doctor says it is. However, SB420 requires ID cards to be renewed annually, and many police refuse to recognize recommendations that are older than a year or so. Courts have ruled that patients must have a valid approval at the time of their arrest, though this can have been oral.
WHAT ABOUT OUT-OF-STATERS?
Prop. 215 arguably applies to anyone with a recommendation from a California physician, regardless of whether they’re a resident, although this has never been tested in court. However, most California physicians and dispensaries refuse to serve out-of-staters. Some other states, such as Arizona, recognize out-of-state patients. Oregon allows out-of-state patients provided they have an Oregon physician’s recommendation.
WHAT ABOUT MINORS?
Patients under 18 should have parental consent.
CAN I GROW OR USE MEDICAL MARIJUANA WITH CHILDREN IN THE HOUSE?
There is nothing in state law against this. However it’s advised to keep your medical marijuana away from children. Make sure that you don’t leave medicines around where kids can get them, and keep gardens away from where they play. In rare cases Child Protective Services has become involved, mostly in cases with large plant numbers, evidence of sales, neglect, or messy divorce proceedings. In such cases, CPS tends not to be understanding about medical marijuana and can always allege child endangerment.
CAN I OWN OR BUY A GUN WITH A MEDICAL MARIJUANA CARD?
The federal Bureau of Alcohol Tobacco and Firearms sent warning letters to gun dealers in 2011 warning them they could not sell to known medical marijuana users. When buying a gun, you may be asked whether you are a user of illegal drugs and/or medical marijuana.
Answering yes makes you ineligible to purchase; falsely answering no is in principle punishable as perjury. This should not affect current gun owners. Although California law does not prohibit medical marijuana users from having guns, using a gun in connection with an offense such as cultivation or possession for sale can result in additional criminal charges. Users are advised to keep their guns in a location that is separate from their marijuana.
Text of Prop. 215
Compassionate Use Act of 1996
Health and Safety Code Section 11362.5
Sec. (1) a-b The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.