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Medical Marijuana Use - California Health & Safety Code Section 11362.5 and Proposition 215

Section 11362.5 of the California Health and Safety Code exempts patients and defined caregivers who possess or cultivate marijuana recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of marijuana. It provides that physicians who recommend use of marijuana for medical treatment shall not be punished or denied any right or privilege and declares that the measure is not be construed to supersede prohibitions of conduct endangering others or to condone diversion of marijuana.

Drug Defense Attorney Explains Prop 215:

Section 11362.5 resulted from the passage of Proposition 215, added in March of 2009, was entitled the "Compassionate Use" Act (CUA). It made 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.

The CUA permits patients with a valid doctor’s recommendation based on the patient’s designated Primary Caregivers, to possess and cultivate marijuana for personal medical use based upon a “serious medical condition”, and has since been expanded to protect a growing system of collective and cooperative distribution.

Under the CUA a “serious medical condition" is defined as:

  • Acquired immune deficiency syndrome (AIDS).
  • Anorexia.
  • Arthritis.
  • Cachexia [wasting syndrome].
  • Cancer.
  • Chronic pain.
  • Glaucoma.
  • Migraine.
  • Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
  • Seizures, including, but not limited to, seizures associated with epilepsy.
  • Severe nausea, and
  • Any other chronic or persistent medical symptom that either:
    • (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336); or,
    • (B) If not alleviated, may cause serious harm to the patient's safety or physical or mental health.

Medical marijuana users may legally: possess, cultivate, and transport marijuana for their personal, medical use. (For purposes of the CUA, concentrated cannabis (hashish) is considered marijuana.) Thus, medical marijuana users may legally possess concentrated cannabis in an amount reasonably related to their current medical needs. Federal officials announced that they would not try to thwart medical marijuana distribution/use in California.

Medical marijuana laws do not allow patients to sell it or give it away, or to have possession of marijuana with the intent to sell it. They also do not permit medical marijuana users to smoke marijuana:

  • In any place where smoking is prohibited by law;
  • In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
  • On a school bus;
  • While in a motor vehicle that is being operated; or
  • While operating a boat.

On January 1, 2018, recreational marijuana use became legal for adults over 21 years of age in California. Medical marijuana laws under the CUA, however, remain in full force and effect. Defenses, applicable to both recreational use and medical use, can be better explained by our drug defense attorneys in our Santa Rosa, Napa, San Rafael, Lakeport, Ukiah and Eureka Offices.

Identification cards

Medical marijuana ID cards (“MMIC”) are not required in order to qualify for medical marijuana use under the CUA. (County health departments issue identification cards under the new state program.) Registration is valid for one year.

However, having a medical marijuana card allows law enforcement to verify that one is authorized to use medical marijuana.

If one possesses a current, valid MMIC, an officer may not arrest that person for possessing, cultivating or transporting marijuana unless:

  • The information on the card is false;
  • The card was fraudulently obtained; or,
  • The defendant is otherwise violating the law (for example, possessing it with the intent to sell).

Medical marijuana users may legally:

  • Possess up to eight ounces of dried marijuana;
  • Grow up to six mature or 12 immature marijuana plants; or
  • With a doctor's recommendation, possess or grow a greater amount consistent with the patient's reasonable needs.

They may also transport a quantity of marijuana consistent with their reasonable medical needs.

Defenses:

Medical marijuana users and primary caregivers may use the CUA as a defense to many marijuana-related charges. To make use of the defense, the defendant will need to produce facts evidencing that:

  • The defendant (or a patient cared for thereby) had the legal right to use marijuana; and,
  • The amount was reasonably related to your (or the patient's) then-current medical needs.

Once such evidence is introduced, the burden is on the prosecutor to prove that defendant’s (or the patient thereof) use of medical marijuana was not justified.

If a primary caregiver defendant it is necessary to prove that:

  • The caregiver been designated for that purpose by a legal medical marijuana user;
  • The caregiver is consistently responsible for that person's housing, health, and/or safety;
  • The care provided is independent of assistance given the person in taking medical marijuana; and,
  • Care of the person was given at or before the responsibility for assisting with medical marijuana is assumed.

Drug Defense Attorneys:

Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal drug lawyers, who can help in achieving the best outcome in your case. Many times criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charge, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.

To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.

  • Santa Rosa - 707-571-5550
  • Napa - 707-252-0102
  • Marin - 415-491-0223
  • Lakeport - 707-262-0503
  • Ukiah - 707-462-5950
  • Eureka - 707-445-1348

The Actual Law: California Health and Safety Code Section 11362.5 and Proposition 215

(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b) (1) 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 that 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 section 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 right 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 a 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 section who has consistently assumed responsibility for the housing, health, or safety of that person.

(Added November 5, 1996, by initiative Proposition 215, Sec. 1.)