California Compassionate Use Act of 1996 Health and Safety Code Section 11362.5

PROP. 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 removes criminal penalties for personal use possession and cultivation of marijuana for medical purposes by patients (and their designated "primary caregivers") who have a physician's recommendation or approval.

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 "collectively or cooperatively" cultivate for medical purposes; allows probationers, parolees, and prisoners to apply for permission to use medical marijuana; and sets limits on where marijuana may be smoked. The law also establishes a statewide, voluntary ID card system, which is supposed to be implemented by April 2005. Once it is operational, patients with ID cards will be protected from arrest provided they adhere to specified quantity limits.

HOW MUCH CAN PATIENTS POSSESS OR CULTIVATE?

SB420 establishes a baseline statewide limit per patient of 6 mature or 12 immature plants, plus 1/2 pound (8 oz.) processed cannabis.  Patients can be exempted from these limits if their physician specifically states that they need more. In addition, individual cities and counties are allowed to enact higher, but not lower, limits than the state standard.  For instance, Sonoma County allows patients up to three pounds plus 99 plants in 100 square feet of growing area. For a list of other local limits, see  http://www.canorml.org/prop/local215policies.html.

The legality of the limits in SB 420 has been disputed.  Prior to SB 420, Prop 215 allowed patients whatever amount of marijuana they need for their medical purposes.  Patients were not infrequently acquitted for personal use gardens of 100 plants or more. Some Prop. 215 advocates maintain that SB 420 cannot constitutionally limit the amount patients may legally have for personal use.  This issue remains to be settled in the courts. To be safe, anyone exceeding the limits is advised to get a physician's exemption.

WHAT OFFENSES HAVE A MEDICAL EXCEPTION?

Prop. 215 explicitly covers marijuana possession and cultivation (Health and Safety Code Sections 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 some courts, and will be covered for state cardholders under SB 420. Within the context of a bona fide caregiver relationship and quantity limits, SB 420 provides qualified 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).

WHO IS PROTECTED BY 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."  Examples: spouse or partner, professional caregiver or nurse.  Prop. 215 does not recognize multiple caregivers (despite this, the S.F. Health Department I.D. card program allows patients to record multiple caregivers).  Caregivers may have more than one patient.  However, SB 420 restricts individual caregivers to no more than one patient outside their own "city or county" (it's not clear whether this allows multiple patients from different cities within the same county).

CAN PATIENTS STILL BE ARRESTED OR RAIDED?

YES, unfortunately. There is nothing in Prop. 215 to compel police to accept a patient as being valid. Many legal patients have been raided or arrested for having dubious or outdated recommendations, for growing amounts that cops deem excessive, on account of neighbors' complaints, etc. An essential aim of the state ID card system (once it becomes effective) will be to help avoid undue arrests. 

Once patients have been charged, it is up to the courts to determine the validity of their medical claim.

A landmark State Supreme Court decision, People vs. Mower, holds that patients have the same legal 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 was for other than medical purposes, criminal charges are dismissed. If not, the patient goes on to trial, and the burden is on the prosecution to prove "beyond a reasonable doubt" that the defendant was guilty. Those who have had their charges dropped may file to have their property returned, and possibly claim damages.

In many 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.  For legal assistance in filing suit for lost medicine, contact Americans for Safe Access (www.safeaccessnow.org).

WHAT ABOUT FEDERAL LAW?

Under the federal Controlled Substances Act, possession of any marijuana is a misdemeanor and cultivation is a felony. In addition, premises used to sell or cultivate marijuana for sale are subject to forfeiture. 

An important new Ninth Circuit appellate court ruling, Raich v. Ashcroft, protects Prop. 215 patients from federal prosecution for the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes.  The basis for the decisions is that personal use is outside the scope of the federal government's powers under the commerce clause of the Constitution. The Raich ruling is currently under appeal to the U.S. Supreme Court, with a decision expected in Spring 2005. In the meantime, it remains federal law in the Ninth Circuit, which includes California and the Pacific Coast. 

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.  For a list of medical cannabis specialists, see the California NORML website.  Under Prop. 215, physicians are required to state that they "approve" or "recommend" marijuana. Physicians are not allowed to "prescribe" marijuana, as federal law restricts "prescriptions" to drugs licensed for sale in pharmacies. 

WHAT ILLNESSES CAN MARIJUANA BE USED TO TREAT?

Prop. 215 lists "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." It qualifies this by stating that its purpose is "to ensure that seriously ill Californians have the right to obtain and use marijuana." A recent appellate court decision in People v. Spark ruled that the question of whether the patient's medical condition is "serious" is to be made by a physician only.  Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, post-traumatic stress, PMS, depression, and substance abuse.

WHERE CAN MEDICAL MARIJUANA BE SMOKED?

SB420 disallows marijuana smoking in no smoking zones, within 1000 feet of a school or youth center except in private residences; on school buses, in a motor vehicle that is being operated, or while operating a boat. Patients are advised to be discreet or consume oral preparations in public.  Some state colleges have refused to allow medical marijuana on campus, even in designated smoking areas;  the legality of these bans is disputed.

CAN PATIENTS USE MARIJUANA ON THE JOB? 

SB420 does not require accommodation of medical use of marijuana at any place of employment. Under Mower, patients may have a strong argument in state court that medical marijuana recommendations should be respected. However, employers have broad discretion to reject job applicants in pre-employment tests. Prop 215 is no defense where drug testing is required under federal regulations. If you must take a drug test, the best defense is a Marinol prescription.

CAN PRISONERS AND PROBATIONERS USE MEDICAL MARIJUANA?

SB420 allows probationers, parolees, and prisoners to apply for permission to use medical marijuana. However, it does not require correctional facilities to accommodate medical marijuana use by prisoners or arrestees.

WHAT ABOUT CHILDREN?

Children under 18 should have parental consent for medical marijuana.
WHEN 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 generally ruled that Prop. 215 does not protect patients who do not have a valid physician's recommendation at the time of their arrest.

SHOULD I GET AN ID CARD?

Patients are not required to get an ID card to enjoy the protection of Prop. 215.  All that is needed is a physician's statement saying that marijuana is "approved" or "recommended." 

A state ID card will be necessary to enjoy the protections from arrest afforded under SB 420.  When available (in spring 2005), these will be issued through local county health departments.

In the meantime, some counties and cities, including Oakland, San Francisco, Santa Barbara, Sonoma, Humboldt and Mendocino, have adopted local ID programs of their own.  These ID's are sometimes recognized by local law enforcement officials. In addition, some cannabis clubs and associated patients' groups issue their own, private cards.  Local police are under no compulsion to recognize these.

SHOULD I REPORT MYSELF TO THE POLICE?

Patients are advised NOT to inform local law enforcement officials beforehand of their intent to grow medical marijuana; unfortunately, many patients have been busted after voluntarily reporting themselves!

WHERE CAN I GET MEDICAL MARIJUANA?