|
California NORML Patient's
Guide to Prop 215 California
Compassionate Use Act of 1996 Updated May 2008 |
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 administered by county health departments. Patients with ID
cards are supposed to be protected from arrest provided they adhere to specified quantity
limits. However, not all counties offer state ID cards at this point.
HOW MUCH CAN PATIENTS POSSESS
OR CULTIVATE?
SB420 establishes a baseline statewide
guideline of 6 mature or 12 immature plants, plus 1/2 pound (8 oz.)
processed cannabis per patient. 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 and 30 plants in 100 square feet of growing area. For a list of other
local limits, see http://www.canorml.org/prop/local215policies.html.
The SB 420 guidelines are not binding limits. Patients who are arrested for exceeding them can still defend themselves in court by arguing that the amount they had was consistent with their personal medical needs. A state appellate court has ruled that the legislature cannot legally limit the amount of marijuana patients may grow or possess since that would violate their rights under Prop. 215; hence the SB 420 "limits" are unconstitutional (People. v Kelly). The full implications of the Kelly ruling are unclear at this point (May 2008). For example, it's not certain whether it prevents the SB420 guidelines from being used to protect ID-carrying patients from arrest.
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).
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 I.D. 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!
November 2004
| 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: |
